Conservatives and liberals alike in the wake of the Donald Sterling fiasco have remarked in one form or another that racism has not disappeared. Well, of course not. Evil –be it cruelty or rank bias – is never vanquished except in the dreams of utopians. But it is what has changed that should command our attention.
When his latest racist utterance came to light, NBA players of all races, the league itself, other owners, basketball fans, sports talk show hosts, the president of the United States and just about everyone else of note condemned the statements as horrific. Sterling faces the loss of his team, public humiliation and ostracism. When former Laker superstar Magic Johnson, the co-owner of the Los Angeles Dodgers and Los Angeles fixture, says Sterling must go and that he might be interested in buying the Clippers, we can rightfully say the change in 50 years has been extraordinary. We are far indeed from the world of Jackie Robinson.
The Civil Rights Act and its progeny not only changed the laws of the land, attacking institutionalized racism, but changed the hearts and minds of a country. In this respect, it is arguably the finest piece of 20th century legislation.
Peter Wehner eloquently points out that a trio of bad actors — Sen. Rand Paul’s Southern Avenger Jack Hunter, Cliven Bundy and Sterling “are at least a reminder that we’re not all that far removed from a time when feculent views on race were fairly common.” And when the NBA acts, as it certainly will, against Sterling, the racists will be 0-for-3. (Hunter was canned after a public hue and cry, and Bundy has been widely condemned.)
Some balance is therefore in order as we undergo the latest national debate about race. (Attorney General Eric Holder keeps insisting we have such a debate, apparently unaware of how much media and water cooler time race still commands.) We need monuments and a day of celebration to keep the message of Dr. Martin Luther King alive. We need to retain and, as we have done, expand the 1964 Civil Right Act to cover other categories of people who experience bias. Still, the shift in attitudes over time — look at the soaring rate of inter-racial marriage for example — should not be ignored.
The Supreme Court decision last term in Shelby County v. Holder, striking down Section 5 of the Voting Rights Act, rested on the incontrovertible statistical evidence that rendered the use of decades-old statistical measures widely inapplicable. Chief Justice John Roberts wrote for the majority (legal citations are omitted for ease of reading):
Nearly 50 years later, they are still in effect; indeed, they have been made more stringent, and are now scheduled to last until 2031. There is no denying, however, that the conditions that originally justified these measures no longer characterize voting in the covered jurisdictions. By 2009, “the racial gap in voter registration and turnout[was] lower in the States originally covered by §5 than it [was] nationwide. Since that time, Census Bureau data indicate that African-American voter turnout has come to exceed white voter turnout in five of the six States originally covered by §5,with a gap in the sixth State of less than one half of one percent. At the same time, voting discrimination still exists; no one doubts that. The question is whether the Act’s extraordinary measures, including its disparate treatment of the States, continue to satisfy constitutional requirements.
Times have changed, the court held, but Congress is still entitled to update the metrics used for pre-clearance of voting changes and thereby keep in place the pre-clearance provisions. And, as the court stressed, other provisions of the Voting Rights Act including Section 2 remain to prevent discrimination. One need not say nothing has changed (keep voting data from another era) or everything has changed (invalidate Section 5 permanently or do away with other provisions of the Voting Rights Act). Indeed it would be gross distortion to adopt either view.
The latest racist utterances, the immigration reform debate and the huge shift in public opinion about gay marriage serve to remind us that America is a work in progress. But the tide of history and of equality flows in one direction. With each generation we can reinvent and revitalize American democracy, understanding that flawed human beings — even disgraceful ones — won’t vanish from our midst.