Schuette v. BAMN ... An Example of Whitewishing

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Justice Sotomayor

Chief Justice John Roberts may not appreciate her saying so, but Justice Sonia Sotomayor was right. The Court’s decision in Schuette v. BAMN – allowing states to ban public universities from weighing race in admissions – was a classic example of whitewishing.

Whitewishing is my term for white people ignoring evidence of continued racial inequalities, or pretending those inequalities simply reflect the inherent intellectual or moral superiority of the winners, and the intellectual or moral inferiority of the losers.

In whitewishing, racial discrimination ended back in … well, who cares when it ended. The point is, racism is over and the only racists are people of color and their liberal media supporters who keep complaining about race.

I say “who cares when it ended” because those who engage in whitewishing never answer the question “When did racial discrimination end?” They pretend they didn’t hear it. Or they say President Obama’s election and reelection proved that racial discrimination had ended before 2008. But as for exactly when it ended … umm … err … uhh….

So when the Michigan Board of Regents want to weigh race among other factors – such as family legacies – in reviewing college applications, whitewishers howl “Unfair!” Or, in Justice Scalia’s turgid prose:

In my view, any law expressly requiring state actors to afford all persons equal protection of the laws […] does not – cannot – deny “to any person … equal protection of the laws,” U. S. Const., Amdt. 14, §1, regardless of whatever evidence of seemingly foul purposes plaintiffs may cook up in the trial court.

In other words, so long as a law is facially equal, its results will be “equal protection,” because … whitewishing.

And that’s whitewishing because it presumes the law need not redress systemic, ongoing racial discrimination in society. Unless some other law expressly creates discrimination, whitewishing says, there is no discrimination. Or at least none that justifies legal redress.

Cue Justice Sotomayor:

Race matters. Race matters in part because of the long history of racial minorities’ being denied access to the political process. […]

Race also matters because of persistent racial inequality in society – inequality that cannot be ignored and that has produced stark socioeconomic disparities. […]

And race matters for reasons that really are only skin deep, that cannot be discussed any other way, and that cannot be wished away. Race matters to a young man’s view of society when he spends his teenage years watching others tense up as he passes, no matter the neighborhood where he grew up. Race matters to a young woman’s sense of self when she states her hometown, and then is pressed, “No, where are you really from?”, regardless of how many generations her family has been in the country. Race matters to a young person addressed by a stranger in a foreign language, which he does not understand because only English was spoken at home. Race matters because of the slights, the snickers, the silent judgments that reinforce that most crippling of thoughts: “I do not belong here.”

In my colleagues’ view, examining the racial impact of legislation only perpetuates racial discrimination. This refusal to accept the stark reality that race matters is regrettable. The way to stop discrimination on the basis of race is to speak openly and candidly on the subject of race, and to apply the Constitution with eyes open to the unfortunate effects of centuries of racial discrimination. As members of the judiciary tasked with intervening to carry out the guarantee of equal protection, we ought not sit back and wish away, rather than confront, the racial inequality that exists in our society. It is this view that works harm, by perpetuating the facile notion that what makes race matter is acknowledging the simple truth that race does matter.

Justice Roberts’ retort was that none of those inequalities and slights would exist were it not for government policies that “demean” racial minorities in the guise or protecting them. In his view, when people attribute President Obama’s or Justice Sotomayor’s successes to affirmative action – as many have – that merely illustrates how affirmative action perpetuates racism. Take away the remedy, Roberts implicitly argues, and the problem would disappear.

And that … is whitewishing.