//  8/23/17  //  Commentary

In April, Joshua Matz and one of us (Leah) wrote a post in which we compared the reasoning in Shelby County v. Holder to the reasoning in a letter that conservative activists wrote regarding the Department of Justice’s future under the Trump administration.  Shelby County is the decision that (in)famously rendered the Voting Rights Act’s preclearance regime inoperative by holding unconstitutional the VRA provision that determined which states were subject to preclearance.  The VRA’s preclearance regime required certain jurisdictions to obtain advanced approval from the Department of Justice (or a panel of judges) for any changes to their voting laws. The jurisdictions that were subject to preclearance included many southern states with particularly egregious histories of racial discrimination, and histories of disenfranchising voters of color.  (Some other jurisdictions were also subject to preclearance.)

For some very smart people, the violence and hate that were on display in Charlottesville called to mind Shelby CountyShelby County invalidated the VRA provision on the ground that “[o]ur country has changed”—that, however bad things are now, they’re not as bad as they were, when preclearance was (perhaps) justified.  But if anything is to be gleaned since January 20, 2017; November 8, 2016; June 16, 2015; or any point in the last several decades, it should be that however much things have changed, we still have serious issues with racism and racial justice. And it should not take the horrifying spectacle of armed white supremacist militias walking through major university towns, spewing racist hate, and murdering counter-protesters to acknowledge that there are ugly, uncomfortable, and dangerous forms of racism that are still with us.

Nonetheless, the Trump administration and all that it has brought to light are an occasion to challenge (again) the reasoning in Shelby County, as well as other decisions that have limited the availability of race-conscious remedies.  It is easy to identify the obvious shortcomings in Trump and others’ grossly inadequate responses to the white supremacists in Charlottesville.  It is harder to do that with responses to racism that are more politic and more sanitized.  But the responses have similar shortcomings, and it’s helpful to use the easier case as the jumping off point. 

Trump’s initial response to the white supremacist violence in Charlottesville was minimization.  For hours, he said nothing at all.  When he spoke, he (uncharacteristically) didn’t speak with clarity about what he perceived to be the problem.  (For reference, compare his prior statements on Rosie O’Donnell, Jim Acosta, James Comey, or, well, anything else.)  In vague terms, Trump proclaimed: “We ALL must be united & condemn all that hate stands for.  There is no place for this kind of violence in America.  Lets come together as one!”  He then followed up with a statement pointing out that he was in Bedminster (at one of his properties) for “meetings & press conference on… all that we have done, and are doing ….but Charlottesville sad!”

Trump’s later responses minimized Charlottesville in other respects.  It took until Monday for the President to come out and name neo-Nazis, the KKK, and white supremacists as being in the wrong.  Before then, he offered his deepest condolences to the VA State Police officers who had died, and only hours later offered condolences and a “sad!” to Heather Heyer’s family, and a “best regards to all of those injured.”

The combined effect of this part of Trump’s response was minimization—to deny, implicitly, that something terrible and worthy of our collective condemnation had happened.

Something similar could be said about the Court’s opinion in Shelby County v. Holder.  Here’s what the Court wrote about modern-day voting restrictions that disproportionately disenfranchise people of color: “[V]oting discrimination still exists; no one doubts that …. [But] [n]early 50 years later, things have changed dramatically.”  Shelby County also wrote off newer forms of voting discrimination because they did not resemble the old ones:  “Regardless of how to look at the [evidence]…. no one can fairly say that it shows anything approaching the ‘pervasive,’ ‘flagrant,’ ‘widespread,’ and ‘rampant’ discrimination that faced Congress in 1965, and that clearly distinguished the covered jurisdictions from the rest of the Nation at that time.”

This reasoning also engages in minimization, or, as Mark Graber called it on Balkinization, “defining racism downwards.”  Graber wrote about the arguable need to celebrate and affirm Republican politicians for having identified Nazis as bad.  He observed: “President Trump, the Klan, the alt-right, and the Republican Party won a stunning rhetorical victory yesterday when the American media and a great many Americans defined racism downwards to 1930 standards…. By celebrating any member of the far right who denounces President Trump and the alt-right, Trump derangement syndrome further serves to normalize the far right in the name of not normalizing the alt-right.” 

Shelby County accomplished a similar feat—it defined racial discrimination in voting downwards to 1965 standards, when racist mobs of police officers cracked open the skulls of black protesters who marched in support of their ability to register to vote.  It is true that the present-day marches to commemorate the Selma march look different than the original one.  But that’s hardly evidence that racial discrimination is sufficiently unproblematic that states with particularly overt and egregious histories of racial discrimination should not have to preclear changes to their voting laws.

Shelby County is not the only case that has minimized the persistence of racial discrimination.  The Court did something similar in Grutter v. Bollinger, when it upheld the University of Michigan Law School’s race-conscious admissions program. Justice O’Connor confidently predicted that “We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.”  That was 2003. Congratulations America, you’re more than half-way there.

Or consider one of the Court’s most recent affirmative action cases, Parents Involved in Community Schools v. Seattle School District No.1.  There, the Court held that a school district did not have a compelling interest in remedying the effects of past intentional discrimination unless the school was “segregated by law” (i.e., had a statute formally segregating students on the basis of race) or was “subject to [a] court-ordered desegregation decree” (i.e., there had been a judicial finding of prior discrimination).  Do those two criteria—a judicial finding of discrimination, and laws that explicitly segregate students on the basis of race—really identify all of the districts where racial discrimination has resulted in segregated schools, as opposed to identifying a few particularly overt instances of racially segregated schools? 

Back to present day: Charlottesville is not the only piece of evidence that our country struggles with race.  Far from it.  Consider the slew of recently enacted voting laws that have disproportionately limited the voting power and eligibility of people of color.  (Ari Berman has offered examples from North Carolina, Ohio, Wisconsin, Indiana, Ohio, and Alabama, several of which were found to have intentionally disenfranchised people on the basis of their race.)  Or consider statistics on police encounters and police violence, which regularly show that people of color bear the disproportionate brunt of both—they are more likely to be stopped by the police, and they are more likely to be the victim of police violence than others who are stopped.

Indeed, the Trump administration itself has provided us with plenty of examples of how racism persists, including in government.  Donald Trump became active in politics by repeatedly insisting that Barack Obama, the first black President, wasn’t actually American, and demanding to see proof of Obama’s citizenship.  Before Trump was elected, he accused a judge of being biased against him because “he’s a Mexican.”  (The judge was born in Indiana.)  He launched his presidential campaign by describing Mexicans who immigrate to the United States as “bringing drugs … bringing crime” and “rapists,” though “some, [he] assume[d] are good people.”  During the campaign, he asked African Americans “what do you have to lose?” after insisting that African Americans and Latinos (as a group) were “living in hell” in the United States.  After his election, while speaking to police officers, he urged officers to rough up the “thugs being thrown into the backs of a paddy wagon.”  He asked April Ryan during a February press conference if she should set up a meeting with the Congressional Black Caucus, who he thought might be “friends” of hers.  He has repeatedly launched angry insults at Muslims as a group and Islam as a religion.  After grieving mother Ghazala Khan bravely appeared beside her husband on the DNC stage, Trump said, “maybe she wasn’t allowed to have anything to say.”  Trump continues to insist that the Central Park Five, the five men of color who were falsely convicted of beating and raping a white woman, are guilty and should be executed.  The men were exonerated by DNA evidence.  Both Trump and his companies have repeatedly paid large settlements and court awards for racial discrimination.  (It took HuffPo nearly 3000 words to summarize manifestations of the now-President’s racism, and its list doesn’t include post-election incidents.)

Perhaps more galling is that the Trump administration has undertaken several efforts to systematically minimize racism even while Trump himself recites racist claims and generalizations.  Consider just a few examples:  The Department of Justice is revisiting federal investigations into racialized police violence, and federal oversight of jurisdictions with documented problems of racialized police violence.  The Trump administration is planning to disband the divisions in agencies like the Department of Labor and the Environmental Protection Agency that have addressed discrimination and policies with discriminatory effects on minority communities.   The adinistration's proposed budget would significantly cut the Education Department’s Office of Civil Rights.  The Department of Justice has withdrawn the claim that Texas’s voter identification law was intentionally discriminatory (courts have found that it was).  It is revealing to see these two efforts proceed in tandem—that it is possible to deny that racism remains a problem while conclusively demonstrating that it is. 

It may be inconvenient to acknowledge that racism has persisted well into the 21st century.  It may be uncomfortable to acknowledge that racism has persisted in government.  But those facts are staring us in the face (and often screaming at us on Twitter).



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