Thoughts on the Supreme Court's ruling
on Affirmative Action Admissions

Raphael Cassimere Jr.
Emeritus Seraphia D. Leyda Professor of History, UNO

This is not the time for hand-wringing, self pity or misplaced guilt. We must not retreat or surrender. Instead, we must re-double our efforts to achieve our ultimate goal; maximum individual freedom. Remember, affirmative action was never our ultimate goal, but one of many different means to achieve that goal. Sadly, this particular tool was never fully implemented, always resisted, and too often, misused. Notwithstanding the Court's insistence that only a color blind society is constitutionally acceptable, its pious pronouncement belies the fact that almost always, the Court's white membership has been blinded by its adherence to a preference for one color: white.

Certainly, even the most casual court watcher could not have been greatly surprised by this Court's decision; although saddened and disappointed. For most of its history, our national supreme court has been hostile to the rights of African Americans. From Dred Scott in 1857 to its latest ruling in tudents for Fair Admissions, Inc., the Court found different ways to curtail, if not rebuff the rights of the nation's oldest minority group.

Even when specific laws were enacted to uplift the former enslaved, and to protect African Americans from racial discrimination, their opponents almost always received a sympathetic hearing from a conservative majority on the Court. For example, Congress framed the 14th Amendment, which was quickly ratified by the states, That amendment specifically repudiated the earlier Dred Scott ruling which denied citizenship rights for both free and unfree Blacks.

Unfortunately, shortly after adoption of the 14th Amendment, the High Court invalidated enforcement legislation such as the Ku Klux Klan Act and the Civil Rights Act of 1875. Similar attacks on post Civil War gains made by black citizens culminated with the horrendous "separate but equal" ruling in Plessy in 1896. In actuality, almost all of the time, racial separation meant racial inequality, or sometimes, it was separate and non-existent facilities for African Americans. Subsequently, separate and unequal became the rule for the better part of the next century.

The Plessy ruling, was accompanied with rapid black disenfranchisement across the South and rampant violence, including increased lynching. Some black leaders became despondent and opined that racial equality could never be achieved within this country. A few suggested that the only solution was to return to the homeland in Africa.

Others, however, insisted that the Court's negative rulings notwithstanding, whatever gains that African Americans had achieved, had not resulted from judicial beneficence, but the arduous efforts of African Americans and their allies. Indeed, many recalled the words of the venerable leader, Frederick Douglass, who while decrying the Court's 1857 ruling in Dred Scott, urged his beleaguered colleagues not to despair, but to take heart because the Court's ruling was so horrific that it would arouse even more opposition to slavery and hasten its end.

Often, I would ask my students what special insights, if any, did Douglass have about the end of slavery? Could he really have foreseen that within 10 years, not only would slavery have been abolished, and not only would black men be freed, but most of them would also be enfranchised? Douglass always remained optimism about the fate of his race, but a few months before his death, - about a year before the Plessy ruling, he had warned, that "things will get much worse before they get better." What did younger black leaders hear in Douglass's valedictory?

Did some only hear his warning that "things will get much worse?" If so, were they among the leaders who accepted accommodation to white racism as the only rational solution? On the other hand, were there those who concentrated on the latter phrase, "before they get better?" Some of the former, allied with Booker T. Washington; while others coalesced with W.E. B. DuBois and Monroe Trotter to make things better.

For more than a half-century following Plessy, race relations reached the nadir. In many places throughout the old Confederate South, black voters were almost as rare as the unicorn. Separate but equal resulted in inferior black education at best, or none at all. Although black civil rights organization, such as the NAACP had formed and announced ambitious agendas, the High Court remained unwilling to provide much help. Indeed, in 1927 the Court held that separate but equal was a settled question, not to be argued again.

Notwithstanding, there was always a cadre of black leaders who persevered even amidst the worse days of racial segregation and subordination. They believed that the solutions for most racial problems lay within black schools. Many of these schools were supported at least in part, by religious institutions. Black leaders, especially educators, struggled valiantly to educate not only the black masses, but a small number of black leaders as well.

These black schools educated scholars from elementary "academies" through college. Some adhered to DuBois' "talented tenth" proposal to educate a cadre of black leaders who would be trained to uplift the whole race. Others, perhaps a slight majority, followed Booker T. Washington's self-help pattern that concentrated on training skilled workers.

All of these schools were underfunded, including state-supported black public schools. It must be remembered that the Plessy decision made government imposed racial segregation permissible, but not mandatory. Hence, separation was legal only if facilities for both races were substantially equal. To be sure, equality was never provided; in fact there were no attempts to make separate facilities equal. For example, there was not a single black public high school within the state of Louisiana in 1900.

Not only did New Orleans, its largest city, lack a single black public high school, its all-white school board eliminated grades 6, 7, and 8 from its grade schools. Thus, it was not until 1918 when the board converted a formal white elementary school into a black high school, which immediately attracted black students from across the states. As a result, it quickly became over- crowded and was forced to hold day and evening classes.

Educational inequities were seldom challenged in court, state or federal. The Supreme Court pronouncement that public school segregation was a "settled question," assured state officials that black disparities would not be successfully challenged. And sadly, there was almost no one to make the challenges. But in the late twenties a successful challenge began to slowly evolve. Nevertheless, it was largely within the mindset of Charles H. Houston, the first black dean of the erstwhile black law school at Howard University. Houston, valedictorian of his class at Amherst College, also graduated cum laude from Harvard Law School.

Houston was a native Washingtonian. He lived through the capital city's re- segregation during Woodrow Wilson's presidency. He experienced first-hand harsh racial segregation in the army during WWI even as a black officer. However, his legal studies most convinced him that racial segregation could never be eliminated, if not seriously lessened, without judicial action. But he realized that this could not be accomplished without enough competent black lawyers; at that time only a pitiful handful, most who were barely trained beyond performing the simplest legal work, such as executing simple wills.

At first, he served as vice-dean under a white official who had little incentive to provide advanced training for black lawyers. However, Houston challenged his students to prepare themselves to offer their services for a greater cause than personal enrichment. He warned them that they would work under humiliating circumstances when they would not be respected by hostile jurists and racist lawyers. Sometimes they would not be fully respected by their own people; many who doubted the capabilities of black attorneys, especially when opposed by white lawyers.

Still, Houston, with almost missionary zeal, trained his students for success. Failure was not an option. He drilled them to take only "the right case, with the right plaintiff in the right court. He continually cautioned that hasty action could result in a defeat which would strengthen the opposition and make more difficult the ultimate goal of overturning separate but equal. Houston's prize protigi, Thurgood Marshall, absorbed his teaching and became the leading executor of Houston's plan after his death.

Charles Houston's attack against separate but equal was largely successful because it did not involve an immediate frontal attack against the doctrine itself, but the lack of equality within the system. For example, his earliest victories came in higher education where no state provided separate black graduate or black professional schools. After becoming the full-time Special Counsel for the NAACP, he gradually convinced the High Court to rule in favor of black voters. Thus by the end of WWII, there was the slow re- registration of black voters in a number of large Southern cities where they could sometimes affect the election of lesser segregationists.

When Marshall, Houston's successor, turned his attention toward public school desegregation, the Southern states finally realized that they were vulnerable to successful challenges because they did not provide separate education in their elementary or secondary schools. During the late forties, most of them responded with moderate educational improvement plans, loosely called "catch- up." This was a tacit admission that they had not provided equality for black schools in the past, but now, if given sufficient time, they would substantially equalize school facilities for both races.

To be sure, earlier there had been some positive changes, Salaries for black and white teachers were equalized across the South. Albeit, in most cases as a result of lawsuits which initially resulted in the firing of black teacher plaintiffs. In New Orleans, for example, in a 1950 bond election, the school board promised that 70% of the new monies would be used to build or renovate black schools.

However, there was also a tacit reminder, actually a veiled threat, that under no circumstance would public schools be desegregated, and as a last result, public schools would be abolished, which would certainly hurt black students more than white students. (That threat was actually carried out when Little Rock, Arkansas closed its public schools for one year and Prince Edward County, Virginia closed its schools for five years!)

Desegregation of public schools slowly resulted from the historic so-called Brown decision in 1954 which has been much discussed and analyzed and need not be rehashed here. It was the culmination of seven years of litigation from four states and the District of Columbia and decided by members of the Vinson and Warren Courts. Earl Warren's leadership was pivotal, but it does not overshadow the work of the NAACP led by Thurgood Marshall. Many are the untold heroes and sheroes who bravely worked to make the desired outcome possible. While almost none of the original plaintiffs attended any school they sought to enter, their efforts made possible the desegregation of many school districts many years later.

Resistance to desegregation was lengthy, brutal, and in some cases fatal. Meaningful desegregation did not occur for more than a decade and a half until finally Brown's "all deliberate speed" was replaced with "at once" in Alexander v. Holmes in 1969. Resistance was led by legislative and executive leaders at both the state and national levels. Public careers would be made or ended by support for, or against desegregation. Both federal and state leaders decried the Court's alleged unwise activism. The incumbent president, Dwight Eisenhower, not only refused to publicly support the decision, but privately insisted that Warren's appointment was the worst appointment he had made. There were official calls for the impeachment of Chief Justice Earl Warren; some made threats on his life.

This was one of the few times in its history that the national judiciary moved ahead of the political branches. The Court also made historic decisions affecting voting, equitable representation in Congress, state legislatures, on school boards and local governing bodies. There were also major judicial reforms, expanding the rights of the accused. While school desegregation proceeded slowly, the Court's decision made possible the gradual transition from legal challenges to the activist phase of the ongoing civil rights movement.

Younger leaders pushed for desegregation in other areas of public life, such as transportation, hospitals, parks and playgrounds, etc. Rev. Dr. Martin L. King, Jr. emerged as the popular spokesman for direct confrontation with segregation, although both CORE and the NAACP had a much earlier history of direct action for better employment. A decade of increasing direct action eventually forced the political branches to act, culminating with several Civil Rights Acts; most importantly, the Civil Rights Act of 1964 and the Voting Rights Act of 1965.

Gradually, however, the Court's activism waned. Indeed, it became a major issue in future presidential election. Presidents Richard Nixon and Ronald Reagan, somewhat goaded by more extreme antagonists, such as George Wallace, promised to remake the Court into a more conservative body. It did not happen immediately, but eventually the Warren Court was moderated by the Burger Court, which did not quickly stray too far from its antecedents. However, the Rehnquist Court slowly began to whittle away former protections. Eventually, the Rehnquist Court was replaced by an even more conservative court headed by John Roberts

As the 20th century ended, the High Court began to return to its so-called "color blind" philosophy. This has been especially harmful in voting rights. Similar to its predecessor in the post-Civil War era, it struck down key voting rights protections which had enabled African Americans to make significant political strides. However, unlike the earlier period when the Court struck down laws largely passed by a Northern controlled Congress, most recently the Court emasculated key provisions of the Voting Rights Act of 2006 which had passed with strong Southern support.

I personally visited members of the Louisiana delegation to enlist their support. Of course, Rep. Bill Jefferson supported the bill. Additionally, both Senators Mary Landrieu and David Vitter promised to vote "Aye." And they did; in fact the bill passed the Senate, 98-0 and nearly 90% of the members of the House supported it. While a majority of "No" votes came from Southern states, there were a surprising number of "No" votes from non-Southern states including 4 from California. Interestingly, there were no "No" votes from Mississippi!

The Court's seeming disregard for the strong support shown for the extension of the Voting Rights Act is baffling to many. Some court watchers attribute the shift in ideology to the black arch conservative justice, Clarence Thomas who replaced the more liberal Thurgood Marshall. Thomas' controversial appointment, opposed by most black groups, initially was more irritating, than crucial. A few times, he was the only dissenting voice in cases which most believed were favorable to the larger black population. With Chief Justice Rehnquist's replacement by John Roberts, Thomas's role became more ascendant. Some believe that Thomas makes it easier for the new majority to disclaim racial animus.

Justice Thomas states publicly that he believes that the equal protection guaranteed under the constitution must not be used to favor any group over another. Some, who claim to know him well, indicate that Thomas believes that "affirmative action" stigmatizes racial minorities, although, he himself may have benefited from it unintentionally. Apparently, he believes that those who gain admission, where otherwise they might have been excluded, will never be accepted as equals. And apparently, it is this personal desire for acceptance, that apparently he himself seeks.

Indeed, others suggest that his early upbringing in rural Georgia denied him close contact with other more urbane African Americans. In any case, it may explain why he seems more at ease with white Americans than most other Blacks. Rarely is Thomas seen in the company of a large party of African Americans. While he decries "inclusion" and "diversity" as public or official policy, his own personal inclusion among conservative white groups set him apart as an "acceptable" African American.

Thomas, and other African Americans with similar conservative political and social leanings, are often portrayed by white conservatives as examples of black Americans whose views should be emulated by the rest of the race. However, a danger lies in making efforts to be accepted by the conservative Right. It may have caused Herman Cain his life when he died shortly after he sat unmasked in a large rally of Trump supporters who denied the dangers of the Covid epidemic.

Gaining conservative white acceptance is fraught with danger. One must always be certain to identify him/herself, either accompanied by friendly whites who can vouch for them, or by carrying signs that suggest that the holder is not a threat to the accepted social order. For example, at every Trump rally, there is almost always a small number of Blacks who carry signs which proclaim "Blacks for Trump." Such signs were prominently displayed at the Capitol on January 6th. Without them, black protesters themselves most probably would have been attacked by white protesters who attacked black police officers.

It is as if the sign bearers know that without this identification, they could be misconstrued as the wrong kind of black person. Ironically, today's identification signs are similar to the "Freedom Papers" carried by free Blacks during slavery, Sometimes, free Blacks did not need to display their papers if they remained in areas where they were well known. However, there was always an omnipresent danger if they ventured into a strange area. Presently, I wonder what would happen if Justice Thomas, without official identification, wandered alone, into an area openly hostile to Blacks. Could his close interaction within the white community assure his safe conduct, or would he be treated similarly to other African Americans whose lives had been shaped differently?

In fact, however, Clarence Thomas's upbringing could not have been too different from most Southern blacks born during the mid-20th century, including yours truly, although I am a 6th generation New Orleanian. Justice Thomas is six years younger than I, and thus a few years behind me in school, but there may have been some overlap since I attended college from the late fifties through the early seventies.. Probably both of us were racial minorities in overwhelmingly white schools. For example, I attended a brand new public university, LSUNO, (now the University of New Orleans). I had to fight against bigoted instructors, and outward hostility of some fellow students.

While I was in the minority, I always felt that I belonged and no one could make me feel that I was not a part of the university. After I received my first degree, I entered graduate school and subsequently became the college's first graduate teaching assistant. I taught one class with only one black student. The first day of class, two white students walked out and demanded a transfer which was denied. By the end of the semester, I had gained the respect of most students, and developed a meaningful friendship with a few of them. I later became the university's first black instructor.

After earning my Master's, I was subsequently, admitted into the doctoral program at Lehigh University under an informal affirmative action program. I fully understood that an affirmative action admission was merely an entrance into the institution; it did not guarantee my success. My successful departure depended solely on me. Although, I was the only African American within the department, I never felt like an outsider and enjoyed my time at Lehigh where I made some lifetime friendships. Often at social gatherings, as the lone black guest, I made a point of meeting every other guest. Many of them were lonely and so happy to be singled out for a brief visit; some did not want me to move away.

By chance, I met the first black student admitted by Lehigh nearly two decades earlier. After leaving Lehigh he earned a doctorate and returned to spend one year as a visiting Professor. Surprisingly, he mentioned how well he had been treated by both students and faculty. His warm relationship contrasted sharply with some of the current black undergraduates, who decried racism, but I believed they suffered perhaps, as much class, as race discrimination. I found class discrimination to be very prevalent at Lehigh.

However, since I was much older, and had encountered many whites, of all types during my civil rights activities, neither race nor class discrimination affected me as much as it affected these young men. (Lehigh did not accept undergraduate coeds until the fall of 1971.) I have visited the campus several times since I left and I am always impressed with the increased levels of diversity and inclusion among students, faculty, and administrators.

I was a teaching assistant and learned that there were many legacy admissions, Some students had fathers, uncles, and grandfathers who preceded them at Lehigh. In any case, my personal experience with affirmative action admissions ended successfully and I graduated with a doctorate in less than three years. Thankfully, the university had opened the doors for me, but hard work with God's help enabled me to exit; leaving behind some colleagues who preceded me there.

So! let's return to my original thoughts on the Court's latest ruling on affirmative action. What should we do? Well, we must do what we've always done when we faced similar opposition. Fight! as if our lives depend on it! We've been here before. This is not a new fight; merely the continuation of an old fight our ancestors faced for more than two centuries. As stated before, affirmative action is only one of many tools we used to obtain our original goal of maximum individual freedom. We never coined the term, "affirmative action," but it was a professed governmental policy, first made popular by President John F. Kennedy in 1961.

Prior to that time, black people, in the words of Frederick Douglass, merely sought a chance: a chance to succeed, or a chance to fail. To be sure, Black teachers had long encouraged their students not to fear a challenge; often admonishing them that success for black students required them to be "twice as good." And even when many black students were twice as good, they were still denied access. Hence, the primary goal of early affirmative action programs was to end zero quotas for African Americans, such as the policy Woodrow Wilson had established at Princeton University when he had served as the university's President.

"Strive though rocks be rugged" was more than a slogan, but a way of life for many black scholars. Such was the experience of Dorothy Height, long time President, of the National Council of Negro Women. She was accepted at Barnard College, Columbia University's coed school, but was not admitted because her admission would have exceeded the school's "unofficial" quota of 2 black women each year. Undaunted, Height earned Bachelor's and Master's degrees from NYU which led to her lifetime of great success.

Cheer up! the end of Affirmative simply closes one door - and only for the time being. Nevertheless, together! we must find another suitable remedy - under another name -to accomplish what affirmative action was not allowed to achieve. Let's not tarry. While the Court has again struck a major blow to our continuing efforts to gain total freedom - it is not fatal. We must quickly return to court with stronger cases. We can use as an example one of Christ's parables found in Luke's gospel.

Jesus recounted the story of a widow who continually pressed an unjust judge for justice. Finally, he concluded, "though I neither fear God, nor man, this woman's persistent visits will wear me down; therefore I will grant her request." Therefore, we too, must continue our fight And if we do, our own High Court may be forced to act, not out of a sense of justice, but because it fears we will wear it down.

In closing- one final thought. In 1900 James Weldon Johnson penned the words to "Lift Ev'ry Voice and Sing." Indeed, it was more than a poem, but a call to concerted action. Today, we must repeat that call, We must be as mindful and courageous today as our forebears were more than a century earlier. They were imbued by Johnson's words:

"stony the road we trod, bitter the chastening rod felt {today} when hope unborn {might} die; yet with a steady beat, we dare not retreat." Even with sore and weary feet, let us march on, till victory is won!"


Copyright © Raphael Cassimere


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