While arguing against the Civil Rights Act of 1875, Associate Justice Joseph Bradley of the U.S. Supreme Court wrote that granting equal access to black people in hotels and restaurants based on their race “would be running the slavery argument into the ground.”

That sounds similar to the arguments I have heard about affirmative action. As much as Americans today would like to think that racism no longer exists, looking back at the older rationalizations against civil rights shows today’s debate about affirmative action to be more of the same stuff.

Of course, in 2007 you will never see laws explicitly excluding black people from public places, and neither can you find poll taxes or other policies that tacitly disenfranchise black citizens. You will, however, see piles and piles of social research on inequality. For example, black people make up 35 percent of the population arrested for illegal drug use, 55 percent of the people convicted for a drug-related crime and 74 percent of the people sentenced for these crimes. This is not written into any drug enforcement law, but it seems to somehow affect them more than white people.

It’s easy to overlook one example of racial injustice, so here is another: Concerning predation by sub-prime mortgage policies, 53 percent of all sub-prime mortgages for households in the $50,000-100,000 per year range go to black people. Income does not really explain this phenomenon because within the $100,000-150,000 range, black people comprise 48 percent of such transactions. The problem with all these figures is that they are too easily rationalized as the side effect of something other than pervasive racism.

In the 19th century, Delaware residents saw nothing racist about their court system, one which had no black people serving on juries despite the fact that black people comprised about 15 percent of the population. It took an 1880 court case to tell Delaware residents something was wrong. So if black people are disproportionately affected by sub-prime lending tactics that now force massive home foreclosures, is there a problem? Is there a problem considering that median household net worth for blacks in 2000 was $7,500 while for whites the median was $79,400?

Following the turn of the 19th century, an entire generation of judges came to power who never lived in antebellum America. Not surprisingly, these were the same judges who ingrained Jim Crow into case law. Today, an entire generation of voters who never lived to know Jim Crow America is the driving force behind actions like the passage of Michigan’s race-based affirmative action ban.

Given the context of today’s social research, it’s actually not so ludicrous to consider race in college admissions. Racism and its disadvantages are no longer overtly institutional, but it would be dumb to ignore research that consistently finds more subtle racism in our society. Hidden between the lines of social data there is a picture of a society struggling with the ugliness of inequality. Simply claiming that the lack of apparent discrimination is a reason to deny the existence of any real problem ignores the fact that everyone feels its presence, whether or not they choose to be aware of that perception.

We have heard the arguments that American society today treats all races equally, but look back at 1875 and 1950s and compare to the arguments we hear in 2007. America claims real progress, forgetting that the machinations of racism take on different forms beyond blatant hate speech. Do you ask yourself if real change is possible or do you simply resign yourself to believe that’s just the way it is?

Mike Eber can be at mieber@umich.edu.

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