O’Connor was the commencement speaker that May at George Washington University Law School, where I was a tenured professor. The graduating students had elected me to receive an award for teaching and service, which meant I also would be offering brief remarks.
I knew I had to take the opportunity to say something about affirmative action. Maybe my success, as demonstrated by the faculty award, would be a significant data point for O’Connor. The weight of the ancestors required not that I argue the constitutional issues, but rather that I offer my Black body as evidence.
And so, taking the stage, I thanked the students for their award, and told them my achievements had been accomplished by virtue of my mother’s love, my own hard work — and affirmative action.
The Associated Press reported: “The students and some faculty applauded, while O’Connor sat quietly, hands folded in her lap.”
That was it. I did not tell O’Connor that her position as the first woman on the Supreme Court was also the product of affirmative action, which is widely perceived to have benefited White women more than people of color. Nor did I reveal my hope that O’Connor would not act like Justice Clarence Thomas, who consistently votes to strike down racial justice laws, despite a lifetime of benefiting from them.
Still, the AP described my words as an “awkward reference” to the pending cases. And some of my colleagues told me afterward that they thought it was tacky or inappropriate for me to comment, even indirectly, on issues before the court. If being uncouth was the cost of speaking truth to power, I was willing to pay that price.
Four weeks later, O’Connor cast the deciding vote upholding the University of Michigan’s consideration of diversity in admissions to its law school. I take no credit, but I’m glad that I spoke up — and that there was somebody to speak up to.
Today, as the court once again prepares to address the issue in cases involving Harvard University and the University of North Carolina at Chapel Hill, that kind of advocacy would be useless. There are no more open-minded conservative justices like O’Connor to whom such an appeal might be made. Chief Justice John G. Roberts Jr., who occasionally votes with the moderates, has a blind spot when it comes to race. His judicial opinions reflect a common fallacy among conservatives that it’s White folks who experience the most discrimination.
For more than 50 years, affirmative action has been one of the most successful racial justice interventions. Despite that fact — indeed, maybe because of it — it’s game over. The court would not have accepted the current cases unless it was clear that its right-wing ideologues finally have the votes to reverse the existing law.
Still, it’s important that beneficiaries of affirmative action acknowledge how it has improved our professional lives, to rebut the critique that diversity in admissions means that unqualified people get in, or that it stigmatizes Black students.
In fact, I believe my presence on campus, along with a critical mass of other Black and Brown students, was a benefit to the school. We provided an integral part of the education of our White colleagues. In my first year of law school, we read a case about the right to a hearing when welfare benefits are cut off. When the professor asked why this was important, a White woman said it probably wouldn’t make a difference in the outcome, but it would be “fun” for the person who had received the benefits. Black students schooled her that there’s nothing fun about pleading with government bureaucrats for adequate food and housing.
And as a criminal law professor, I can’t imagine teaching stop-and-frisk without Black male students to talk about what it’s like to experience that humiliation in the real world.
But I’d better get used to it if I continue to teach at institutions that will soon stop admitting people who look like me. The Supreme Court’s inevitable decision will have immediate and catastrophic consequences. Public and private universities will resegregate. Black and Brown students will no longer be present in substantial numbers at selective predominantlyWhite institutions, although Asian Americans will continue to have a strong representation.
Every time my students of color at Georgetown Law step into a classroom, they demonstrate their extraordinary abilities, including to their White colleagues who might have been skeptical. When these students are no longer present in the room, the connotation is that they are not as capable — one of the insidious lies that has authorized white supremacy.
Of course the justices know this, but the conservatives ones don’t care. Their radical right wing will do to affirmative action what it is doing to abortion, voting rights and the struggle for LGBTQ equality: Take this country back to the time where straight White men ruled everything.