Our days in court

What is it about our little corner of Michigan that seems to consistently spark so much racial controversy?

Some will blame race-baiting folks like me for waving red flags in front of the bull, but this area was a racial hotspot long before I ever came to town. Seems like southeastern Michigan was destined to become a cauldron of racial discontent.

On April 1, the U.S. Supreme Court heard oral arguments in the case against the University of Michigan’s admissions policies, a case brought by several disgruntled white students. They claim they were, in effect, denied admission to the university and its law school because preferences were given to African-American applicants.

Consider some of the other well-known race-related incidents that have taken place here, such as the Detroit race riot — or rebellion — of 1967, actually the third major race riot in the city’s history. Today, Detroit has an African-American population of more than 80 percent, while the nearby suburb of Livonia is ranked as the whitest American city with a population above 100,000. Not surprisingly, Detroit is considered one of the most racially segregated metropolitan areas in the nation.

Race is a defining factor here, and it’s likely to remain that way for generations to come.

The current case before the Supremes isn’t the first racially charged clash from this area to come before them either. Two major cases preceded it.

More than 50 years ago, Benjamin and Anna Sipes and their all-white Northwest Civic Association, sued a black couple for having the audacity to move into an all-white neighborhood near Grand Boulevard and Tireman Avenue. Would-be buyers Orsel and Winnie McGhee, together with two prominent NAACP lawyers, Willis Graves and Francis Dent, fought back and challenged the practice of racially restrictive covenants that kept black folks in Detroit — and throughout much of the country — in ghettos. The McGhees lost the civil suit, then went on to lose the appeal in the Michigan Supreme Court where they argued that racially restrictive housing covenants violated anti-discrimination laws and the 14th Amendment.

Things changed once the case — packaged with three similar ones — reached the Supreme Court; that was when the NAACP’s legendary legal pit bull, Thurgood Marshall stepped in. Marshall, who eventually won more than 30 civil rights cases before the Supremes, persuaded the court to rule unanimously in 1948 that racially restrictive housing covenants could not be enforced by the state. African-Americans and civil rights supporters celebrated one more barrier being toppled.

The second case, known popularly as “the school busing case,” was begun by the NAACP in 1970 to desegregate Detroit Public Schools through a busing plan to involve the suburbs. The NAACP triumphed in the lower courts in the case formally known as Milliken vs. Bradley, but at the higher levels of jurisprudence, the legal weather had deteriorated since the days when Marshall was a young attorney. The NAACP ultimately lost the case in the Supreme Court by a vote of 5-4. Marshall, now a member of the high court, wrote for the minority. After reviewing what had been learned in the historic school desegregation case, Brown vs. Board of Education, Marshall said:

“This court recognized then that remedying decades of segregation in public education would not be an easy task. … After 20 years of small, often difficult steps toward that great end, the court today takes a giant step backwards. Notwithstanding a record showing widespread and pervasive racial segregation in the educational system provided by the state of Michigan for children in Detroit, this court holds that the District Court was powerless to require the State to remedy its constitutional violation in any meaningful fashion … thereby guaranteeing that Negro children will receive the same separate and inherently unequal education in the future as they have been unconstitutionally afforded in the past. I cannot subscribe to this emasculation of our constitutional guarantee of equal protection of the laws and must respectfully dissent.”

That was 1974. Nearly 30 years later, the battle has moved from the Detroit Public Schools to the University of Michigan. If the Supreme Court decides for the plaintiffs, then once again, as Justice Marshall wrote in his dissent, the court would be taking a huge step backward. And this time, meaning no disrespect to the attorneys arguing in favor of the U-M affirmative action policies, we don’t have a young Thurgood Marshall to dazzle the court. We do, however, have Justice Clarence Thomas to worry about.

“It is assumed by most observers that Scalia, Thomas and Rehnquist will vote against affirmative action, Breyer, Ginsburg, Stevens and Souter will vote for it, which leaves O’Connor and Kennedy as the swing votes,” said Robert Sedler, a Wayne State University legal scholar.

One important case that may shed some light on the thinking of the court was another Michigan affirmative action case, Wygant vs. Jackson School Board, which was decided in 1986. In this case, according to Sedler, the Supreme Court held that it was unconstitutional for the Jackson school board to use out-of-seniority layoffs to try to maintain affirmative action gains. This violated the equal protection rights of the higher-seniority white teachers, he said.

“The affirmative action cases in the last decade or so have mostly involved claims of remedying intentional discrimination and the use of race in legislative districting,” said Sedler. “The decisions have generally gone against the use of race.”

Still, Sedler will not predict an outcome. Instead, he preferred to sketch the parameters of what could happen:

“The court could hold that diversity is not a compelling interest justifying the use of race-conscious admissions policy. If this were the holding, universities would have to use race-neutral means such as admitting the top 4 percent of each high school graduating class; since there is a high degree of residential racial segregation, this would ensure that some minority students would be admitted. The court could hold that diversity is a compelling interest, but that either or both of the U-M plans are not precisely tailored to advance that interest. The court could rule in favor of U-M on both issues.”

“This is not Brown. It is Bakke revisited 25 years later,” Sedler said, referring to the 1978 case which limited affirmative action but certified student body diversity as an acceptable consideration in admissions.

In other words, it’s still a case which could affect our racial landscape, from higher education to the military to the workplace. Folks looking for racial progress got a boost from the court action on the case from hereabouts in 1948 and were let down in 1974. What will it be in 2003?

Keith A. Owens is a Detroit-area writer and musician. E-mail [email protected]
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