The Supreme Court’s decision today in Schuette v. Bamn would seem to have little to do with Earth Day. The Court, in a fractured majority decision, upheld Michigan’s voter-enacted ban on race based affirmative action programs in state institutions, including the State’s public universities and colleges. The ban, which came in the form of an amendment to Michigan’s state constitution, was passed in the wake of extensive litigation that eventually affirmed the constitutionality of narrowly tailored uses of race to promote diversity in higher education. The Michigan ban has analogues in California, Florida, and Washington, and represents the political front of an ideological battle to eliminate affirmative action throughout the country.
The Court’s decision today is of a piece with its long march away from anti-subordination principles, and its embrace of a mythic and ahistorical color-blind nation. Much has been written justly critiquing the Court’s approach on a number of fronts, and Justice Sotomayor, in her dissent joined by Justice Ginsburg, sums it up as well as anybody. After reviewing the grave difficulties that states have faced in remedying the severe drop in African-American and Latino student admissions and matriculations at public universities and colleges after voter-enacted affirmative action bans, Justice Sotomayor writes:
These statistics may not influence the views of some of my colleagues, as they question the wisdom of adopting race-sensitive admissions policies and would prefer if our Nation’s colleges and universities were to discard those policies altogether. . . . More fundamentally, it ignores the importance of diversity in institutions of higher education and reveals how little my colleagues understand about the reality of race in America.
The reality that Justice Sotomayor alludes to is far too expansive to summarize briefly here. Nonetheless, a short list will serve as a reminder of what our country has done to create a racial caste system that today is reflected in our prison populations, our neighborhoods, our health care system, and our public schools. The short (and incomplete) list follows: the federal government’s post-WWII “red-lining” of neighborhoods to exclude Black and integrated areas from federally backed loans, which devalued Black property, caused White flight, and increased segregation; the federal government’s subsequent refusal to enforce its own civil rights laws to remedy segregation in housing and public education; state laws that tie public school funding to property values, compounding the problems of segregation and devalued property; and state and local governments’ obsessive and racially inflected focus on criminal laws to police and further isolate Black and minority communities. And of course, there is the long list of better-known state actions, such as Jim Crow laws and their post-civil rights era incarnations.
Justice Sotomayor’s reality also presumably includes all the ways in which our racialized history is, today, obscure to many. Outright racial and ethnic discrimination still exist, but have been pushed underground and complemented by a more insidious version, a way of talking and referring to certain issues that calls up those same Other-fearing reactions without naming them. Ian Haney Lopez has aptly labeled today’s racialized rhetoric “Dog Whistle Politics,” a racism that does not have to speak its name to call out the dogs.
So what does any of this have to do with Earth Day? The narrative of anti-affirmative action and color-blindness is a narrative of scarcity: There are only so many spots in institutions of higher education, and it is not fair to exclude people from those precious spots on the basis of their (White) race. The racialized narrative of educational (and job, scholarship, etc.) scarcity is a zero sum narrative: if that Latino or Black or Native kid gets in, the White kid does not get in. Excluded from the story is the fact that the White kid might not have gotten in because of the legacy kid, the football kid, the violinist kid, and so forth. (The racialized scarcity narrative is perpetuated in an insidious way by an app that applicants can use to see what their chances are of getting into their favorite school if they manipulate their race, gender, and ethnicity. It might be a helpful antidote to develop an app to see how good your chances are of getting into prison based solely on changing your race or ethnicity.) The racialized scarcity narrative diverts us from the larger structural and class-based inequalities in our country, which become increasingly stark every year, and renders extremely difficult a cross-racial and ethnic politics of radical reform of our systems of taxation and funding of public institutions. The scarcity and zero sum narratives are the dog whistles that divide people along racial lines, and distract us from options that might lead to excellent, public, and equal educational opportunities for all of our children. They distract us from seeing that affirmative action policies are not the problem; they are a limited but still necessary measure to ensure a degree of racial and ethnic diversity. The problems are an inadequate and underfunded system of public education, the still unfinished business of remedying our long and continuing history of racial discrimination, and our increasingly stratified distribution of wealth and networks of privilege.
Meanwhile, we do have an actual scarcity problem. The Earth and its systems need our help. Climate stability, the nitrogen cycle, species diversity, and other planetary-scale systems that have kept us in the Holocene (the era that has proven felicitous for human flourishing) for thousands of years have been put to the human test, and they are not passing. We still have time to use our technological and organizational brilliance to manage our planetary home in a way that allows as many of us as possible to live with dignity and opportunity in the company of non-human nature. We are unlikely to go that route, however, if socially constructed narratives of economic scarcity continue to make it impossible to build a racially and economically egalitarian society. Instead, we may head toward a future of increasingly extreme racial and economic inequality, where the plutocratic elites who are most responsible for the degradation of the Earth nonetheless have the best access to what remains of nature’s magic. Another way to put it is that the Supreme Court is fostering a very pernicious scarcity—namely, a scarcity in the communal solidarity necessary to make the tremendous effort that will be required to attend to the Earth. If it seems like a stretch to link today’s Supreme Court decision to this dystopian vision, cast your eyes a bit wider. What has the Court done lately to further plutocratic control of politics? What has the Court done lately to hamper environmental regulation? What are moneyed and ideological interests, including the Koch brothers and others, doing to undermine renewable energy policies and climate change science and policies? Where do they stand on affirmative action? These issues do not have to be linked politically and ideologically, but today in the US they are. If we don’t hear the dog whistles on Earth Day, we may never hear them.