Law and Disorder

A Dickens of a decision: The Supremes look at the white ghosts of the past, present and future

By A.J. Wagner

Cathy Shanklin, Executive Director of the Dayton Dialogue on Race Relations, lamented out loud a few weeks ago that it has become difficult to engage groups for dialogue on race because of the feeling, in most communities, that with the election of Barak Obama we are in a post-racial society. She didn’t know it, but she had just articulated what might be the foundation of two important United States Supreme Court decisions that will be made by the end of June, 2013.

One decision will decide if affirmative action can be used in college admissions. The other will determine if the Voting Rights Act can require nine states to obtain approval of the Justice Department before implementing any changes in voting procedure. Both decisions depend very much on how the justices view race in today’s United States.

There will be acknowledgement by all nine justices that discrimination has a history. Past discrimination cases have relied on the premise that past discrimination practices cannot be righted without giving a preference to those who suffered its consequences. The playing field cannot be leveled unless the last place team gets first pick in the draft.

On Nov. 15 the Sixth Circuit Court of Appeals took this view when declaring unconstitutional Michigan’s ban on public educational institutions from giving a preference to any applicant based on race. Michigan voters passed such a measure, known as Proposition 2, in 2006. The court noted that white applicants whose parents and grandparents had attended a university are given special consideration. African-Americans have very little chance at such legacy admissions because their ancestors were denied admission to colleges and universities based on race. The same would be true for Latino, Native American and other cultures.

The Court determined that Michigan’s law violates the equal due process requirements of the Fourteenth Amendment because a white applicant has the advantage when his well-heeled grandfather calls the admissions department, or the president’s office, to advocate for his heir. A white applicant can change an admissions decision with a phone call. An African-American would have to change the State Constitution for the same consideration.

But, according to Cathy Shanklin’s observations, some would say that should be left in the past. We’re in a new age and must move forward. Move along now, there’s nothing to see.

Chief Justice John Roberts said as much in a case from 2009, Northwest Austin Municipal Utility V. Holder, when he noted, “Things have changed in the South.” The Chief Justice then went on to question whether the “current burdens” imposed by Section 5’s “pre-clearance requirement” were “justified by current needs.”

So, let’s look at the current state of race as exposed by The Associated Press in the results of a survey measuring the change in racial attitudes from 2008 to 2012. According to the AP, “In all, 51 percent of Americans now express explicit anti-black attitudes, compared with 48 percent in a similar 2008 survey. When measured by an implicit racial attitudes test, the number of Americans with anti-black sentiments jumped to 56 percent, up from 49 percent during the last presidential election. In both tests, the share of Americans expressing pro-black attitudes fell.”

Results were similar for anti-Hispanic feelings, which clocked in at 52 percent of non-Hispanic whites.

Also consider why the Court is being asked to review the Voting Rights Act in the first place. The argument at the core of Shelby County v. Holder is that Section 5, reauthorized by Congress in 2006 for another 25 years, is no longer necessary. The Act is violated when “it is shown that the political processes leading to nomination or election … are not equally open to participation by members of a protected class … in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.” The United States Justice Department decides if this standard is violated in the nine states that Congress has acknowledged to have a history of discrimination.

Yet, almost two dozen states have closed down voter registration drives, shortened early voting and tightened identification rules for voting. The Republicans saw the election being decided by minority voters and set out to stop them. The states that have jumped into these restrictions are all Republican controlled and operating off of a template offered by the conservative American Legislative Exchange Council (ALEC).

Looking to the future, whites will be a minority in a few decades. The majority of births in the United States are among non-white populations. The Supreme Court needs to take a hard look at what is happening now and how its decisions will be applied to a white minority in the not so distant future.

These will be haunting decisions. I think Scrooge would agree.

Disclaimer: The content herein is for entertainment and information only. Do not use this as a legal consultation. Every situation has different nuances that can affect the outcome and laws change without notice. If you’re in a situation that calls for legal advice, get a lawyer. You represent yourself at your own risk. The author, the Dayton City Paper and its affiliates shall have no liability stemming from your use of the information contained herein.

A.J. Wagner is an attorney with the law firm of Flanagan, Lieberman, Hoffman and Swaim at 15 W. Fourth Street in Dayton. A.J. and his firm would be glad to help you with all of your legal needs. You can reach A.J. at (937) 223-5200 or at


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A.J. Wagner is an attorney with the law firm of Flanagan, Lieberman, Hoffman and Swaim at 15 W. Fourth Street in Dayton. A.J. and his firm would be glad to help you with all of your legal needs. You can reach A.J. at (937) 223-5200 or at

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