Le Monde
Tuesday 31 July 2007
June 28, the United States' Supreme Court gave an important verdict, Parents v. Seattle, that dramatically restricts the means available in the fight against racial segregation in public schools: from now on, it is, if not impossible, at the very least, extremely difficult to have recourse to the criteria of race to preserve diversity in student recruitment. The news revisits history: in 1954, Brown v. Board of Education had put an end to the laws of segregation by unanimously rejecting the principle of "separate, but equal" races. Still, the judges were not naive: abolishing legal apartheid is not enough to make diversity win over the schools. The ends must go hand in hand with the means. So, diverse desegregation policies were implemented.
Thus busing in the 1970s: to compensate for residential segregation, students were assigned to schools outside their neighborhoods. And people today still debate affirmative action, which, on the other side of the Atlantic, not only concerns employment and the public markets, but also education. What we call "positive discrimination" in France - at the risk of seeing them purely as "quotas" - is the ensemble of voluntary policies that Canadians call "positive action."
The Supreme Court had defined the perimeter of those programs as of 1978, with Bakke v. Regents of California, precisely by prohibiting quotas, deeming all the while that diversity constitutes a decisive interest with respect to education that justifies taking race into account as a factor. Even the restrictions imposed on the University of Michigan in 2003 did
not invalidate that principle.
Now, today, the Supreme Court has taken a real jab at that principle and one that comes at the end of a decade of reconsideration of affirmative action policies, not only in the courts, but also in the political arena. In California in 1995, the University Regents prohibited using "race as a criterion for admission," opening the door to the 1996 California
referendum on Proposition 209, which dismantled affirmative action in the public sector - a model subsequently repeated elsewhere, from Washington State in 1998 to Michigan in 2006. Consequently, it's no accident that segregation has made headway in the schools since the 1990s: the political will that desegregation requires is in clear retreat.
Why? The social sciences have reminded the Supreme Court of the advantages of integration and affirmative action has proved its worth in the United States. Thus, the Army, where (unlike in France) Blacks are not confined to subordinate roles. These voluntary policies have effectively allowed the development of middle classes of color as one sees in universities, businesses, and the political class. Undoubtedly, the ghettos have not benefited much from it; but, whether rich or poor, Blacks remain overwhelmingly in favor of affirmative action (93%).
Moreover, Whites are far from being hostile to it: if it's true that they are less well-disposed when one talks about "preferential treatment" that seems unfair to them (27% of Whites are in favor of it, but 57% of Blacks), they are more and more won over to the principle of affirmative action: close to two-thirds are in favor of it (65% in 2007, versus 53% in
1995). So, in the United States, affirmative action has been in retreat for over ten years, even though it has proved its effectiveness and meets with growing approval in public opinion. How to understand this paradox?
It is undoubtedly the effect of "judicial activism:" the Republicans have, in fact, succeeded in packing the courts - all the way up to the Supreme Court, the majority of which swung into their favor during the Bush years. But the political success is also due to a rhetorical strategy. Today, conservatives drape themselves in a posture of being "color-blind," blind to race, to the point of blinding themselves to racism. In other words, on the other side of the Atlantic, they today forbid fighting racial discrimination in the name of universalism.
A political irony, this rhetoric allows them to law claim to the heritage of the fight against segregation. Already in 1996, Proposition 209 was paradoxically titled: "Civil Rights Initiative." The likely key to its victory: it abolished affirmative action without actually naming it. In fact, the amendment said only that no one "will be the object of discrimination or receive preferential treatment from the state by virtue of race." Consequently, affirmative action was rejected in the name of the fight against discrimination. That's the cunning of the fight the conservatives have undertaken: instead of demanding segregation like their predecessors in the 1950s, they stand in the way of desegregation in the name of equality.
The recent decision has just brought this rhetorical coup to completion. It, in fact, concludes: "To put an end to discrimination based on race, we must stop discriminating on the basis of race." Taking race into account to remedy segregation would be discriminatory. Judge Roberts, speaking for the majority, invokes the 1954 decision: there is a "debate over which side is more faithful to the inheritance of Brown."
In response, the judges positioned in the minority - and this old battle's survivors along with them - are indignant over that "cruel irony." Certainly, by rejecting any racial factor, the Supreme Court majority preserves the letter of the law. But the minority respects its spirit.
For the context has changed: racial segregation is no longer instituted by law - as it was in the 1950s - but rather is now inscribed in American norms. If universalism, blind to racial differences, may claim to be a continuation of the civil rights movement, that can only happen by forgetting the movement's mission: to transform society in the name of an ideal of racial justice.
Consequently, in reality, the difference between the two camps concerns the conjunction of means and ends. For the minority, the end justifies, not all, but some means, as long as their adequacy can be demonstrated. On the other side, for the majority, the end does not justify any means.
It is appropriate to draw some conclusions from this American news for the French context. Here also, the noble principles of Republican universalism often serve to guarantee inaction. Moreover, the Supreme Court's example reminds us that exceptions to the rule are not sufficient to shake up the order of things: the black judge is a pillar of the conservative majority.
Those who owe everything to personal preferment, verily even to fiat, are sometimes less desirous of structural transformations. Consequently, one brightly colored nightingale does not make springtime for diversity. Against segregation and discrimination, the question here, as elsewhere, is: what means do we wish to grant our ends?
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Eric Fassin, a sociologist and teacher at the Ecole normale supérieure, is also a researcher at IRIS [the Institute for Strategic and International Relations] (CNRS [National Center for Scientific Research]/EHESS [School for Advanced Social Research]).
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