Ebony Slaughter-Johnson

How the critical race theory hysteria may be a death blow for affirmative action

The end of abortion rights in the United States seems to be a foregone conclusion. After rejecting efforts to temporarily halt the Texas abortion law on two separate occasions, the Supreme Court may validate the law this term. Undermining Roe v. Wade, or overruling it as the court's decision on Mississippi's 15-week abortion ban portends, begs the question of what other precedents the Supreme Court will be willing to weaken or abandon.

Affirmative action in higher education immediately comes to mind.

With the replacement of Justice Anthony Kennedy—who famously helped reaffirm the constitutionality of affirmative action in Fisher v. University of Texas—upon his retirement with Justice Brett Kavanaugh, and the subsequent filling of the late Justice Ruth Bader Ginsburg's seat by Justice Amy Coney Barrett, the days of affirmative action seem as numbered as those of legalized abortions. Conservatives, skeptical of the justification for affirmative action, enjoy a majority on the Supreme Court. A viable challenge to affirmative action that was only recently shot down in federal court may receive a more favorable ruling if it is heard by a more sympathetic conservative Supreme Court.

As with abortion rights, it is possible for Congress to enact legislation that protects affirmative action policies. However, the current national conversation on critical race theory suggests that these efforts would face an uphill battle.

The New Culture War

Conservative politicians, pundits, activists, and parents united during the summer of 2021 to face a common enemy. No, that enemy was not the likely candidate of the coronavirus pandemic, which so far has killed more than 700,000 Americans and counting. Nor was it the insurrectionists and anti-democracy extremists who falsely claim that the 2020 election was stolen from former President Donald Trump. No, these allies banded together to engage in a meaningless culture war against critical race theory.

The tragic murder of George Floyd in 2020 was a cultural inflection point that has inspired national introspection on the ways in which racism has permeated every facet of American life. Everyday citizens have incorporated terms like "white privilege," "implicit bias," and "microaggression" into their vocabularies. Corporations are beginning to promote internal diversity and contribute to the economic development of historically marginalized communities. Educational institutions at all levels are encouraging conversations and offering courses on institutionalized racism, which is at the core of critical race theory. But for every positive action, there is an equally opposite negative reaction.

Local school board meetings have become battlegrounds. Parents and conservative activists have accused schools of using critical race theory to "indoctrinate" their children and spread "Marxism." These accusations may be the least of school districts' concerns: School board members have received threats to their safety, while many school boards have become engulfed in litigation, complaints, and record requests relating to critical race theory. Conservatives at all levels have egged on these efforts from the Fox News Network, which obsessed over critical race theory to the tune of mentioning it 1,900 times in under four months, to Trump acolyte and Florida Governor Ron DeSantis, who blasted critical race theory as "[t]eaching kids to hate their country and to hate each other."

Harmful rhetoric is now giving way to tangible consequences. States like South Carolina and Idaho have passed legislation to prevent schools from teaching the principles of critical race theory. Oklahoma passed legislation clearly intended to shape the contours of how discussions of race can occur in the classroom. The debate over the place of the tenets of critical race theory in the classroom threatens to tip the scales in the Virginia governor's race. Federal conservative lawmakers have joined the chorus of criticisms, including Senator Tom Cotton (R-AR) and Representative Dan Bishop (R-NC), both of whom introduced the Stop CRT Act.

An Uncertain Future

The central irony of this nonsensical hysteria is that critical race theory is a legal framework taught in law and graduate schools, not primary and secondary schools. Discussions of history, racism, and diversity are not synonymous with critical race theory, so no children were ever in so-called danger of being exposed to this pedagogy. But Republicans are well aware of the provocative nature of the term "critical race theory." The potential to wield that term like a battle-ax to frighten suburban white voters and ultimately frustrate progress on racial justice issues was too tempting for conservatives to ignore. That this fearmongering political strategy is working, based on the explosion of interest in school board affairs, could be the death knell for affirmative action.

Before critical race theory, affirmative action was the buzzword deployed by conservatives to stoke racial division. Affirmative action has always been a controversial policy. But if this level of panic is the reaction to the mere discussion of racial inequality in schools, one can only imagine how apoplectic the reaction will be to Congress seeking to preserve or even expand affirmative action. One thing is for certain: Outrage at the presence of racial discussions in the classrooms means that there is already a coalition of opponents mobilized to challenge codifying affirmative action.

Standing at the cusp of losing abortion rights has galvanized progressives, but it is hard to envision affirmative action inspiring that same level of activism, even among those who might be somewhat sympathetic. Indeed, protests against the Texas abortion law began almost immediately after it went into effect in September. Nationwide marches hosted by the Women's March to vocalize support for abortion rights totaled at least 600. Whole Woman's Health, which is part of a network of abortion clinics, sued for an injunction against the Texas abortion law. Spearheaded by women in Congress, the Women's Health Protection Act of 2021, which would maintain a woman's right to abort her pregnancy, passed in the House of Representatives.

Attaining higher education is still a relative privilege, by contrast, so affirmative action is not as energizing a principle as abortion rights—which directly impact half the population—theoretically are. An argument, though one with which I disagree, could also be made that the stakes of affirmative action are not as high as other racial justice issues, including voting rights and police brutality. While legislation to address these focuses stalls, progressives in Congress may be reluctant to add protecting affirmative action to their list of priorities. As seen from the example of some conservative lawmakers in Congress who have been vocal leaders in the fight to keep racial history out of the classroom, there is no guarantee that legislation to preserve affirmative action policies would be enacted even with the enthusiasm of congressional Democrats.

Furthermore, public opinion on affirmative action is tepid. Although Gallup determined that 62 percent of Americans broadly endorse "affirmative action programs for racial minorities," there are indications that support narrows with respect to affirmative action in the context of higher education specifically. Shortly before the lawsuit against Harvard's affirmative action policy was set to be heard, WGBH News conducted a poll in which 72 percent of respondents opposed the Supreme Court jurisprudence allowing a person's racial background to factor into admissions decisions. Perhaps most tellingly, California voters opposed restoring the state's capacity to consider race, along with other identity elements, in admitting students to its public universities and hiring public employees. An argument could be made that if affirmative action could not survive in liberal California, what hope does it have of achieving national protection?

The anger surrounding teaching children a more expansive (and truthful) version of American history can largely be understood as a backlash to the Black Lives Matter era, the victories of which have been largely symbolic and localized. The legislative entrenchment of affirmative action will be spun by conservatives as "reverse racism" that hampers the educational advancement of white children. That argument will hold traction among conservatives, moderates, and progressives. As we prepare for the possibility of a post-Roe future, it might also be time to anticipate a future in which affirmative action is unavailable as a means of promoting diversity in and economic mobility through higher education.

How the Texas abortion law’s faulty legal text could self-destruct

The ghastliness of the new Texas abortion law is difficult to express in words. It prevents women from aborting their pregnancies after six weeks and creates legal avenues for the punishment of those who assist a woman in her efforts to obtain an abortion. Texas has opened a multidimensional Pandora's box that threatens marginalized communities across the country.

A future without Roe v. Wade has been thrown more sharply into focus. The emergence of abortion bounties in Texas begs the questions of where else these bounties might be collected and which other constitutional rights may be subject to vigilantism. The Supreme Court, which now has a decisive conservative majority, refused to weigh in on the constitutionality of the new law. Many have described the Supreme Court's decision as both secretive and "cowardly" for its arrival in the dead of night and with minimal explanation. Whatever the label may be, the decision by the Supreme Court has left American women within Texas and throughout the country more vulnerable than they were just a few months ago. While lawyers may be responsible for constructing the Texas abortion law, lawyers may also be best positioned to thwart its aims even as it remains good law.

The Texas law permits abortion bounty hunters to sue those who "knowingly [engage] in conduct that aids or abets the performance or inducement of an abortion." A $10,000 bounty at a minimum awaits successful plaintiffs on the other side of litigation.

Navigating lawsuits requires meeting deadlines, responding to motions, submitting discovery requests, advancing legal arguments, and understanding rules of civil procedure and evidence. Such complex tasks, which must be completed in order to succeed, will undoubtedly require legal representation. Crucially, however, because the lawsuits are challenged in civil court, plaintiffs have no constitutional right to free legal representation. Abortion bounty hunters seeking their bounties will turn to private attorneys in Texas for legal assistance. Principled lawyers throughout the state should decline to take these cases.

Lawyers who refuse to represent abortion bounty hunters could mitigate the harms specifically prevented by abortion bounties without having to wait for the legislative process or the judicial process to work. The calculus is simple: Abortion bounty hunters who are rebuffed over and over again may eventually decline to litigate. Those who decide to represent themselves are far less likely to be successful in court. If this practice is carried out successfully by lawyers, it might serve as a deterrent for those inclined to engage in abortion bounty hunting.

Some may argue that this proposal is unethical and unprecedented in itself. On the contrary, this is simply lawyering. Discretion is inherent in the legal profession. Lawyers decline cases consistently. Personal ethics can factor into those decisions.

Furthermore, there is a precedent for selective lawyering. At the dawn of the civil rights movement, civil rights lawyers meticulously selected cases that they thought would be best suited to challenging racial segregation and discrimination. The NAACP Legal Defense and Education Fund, which led the legal assault on racial disparities during the movement, strategically confronted school desegregation, from Missouri ex rel. Gaines v. Canada to Brown v. Board of Education, believing that deconstructing this form of racism was necessary to unsettling state-sanctioned discrimination. Just as the civil rights movement called for lawyering that could be dynamic, aggressive, and persistent in taking cases, responding to the political moment created by the Texas abortion law may call for the same kind of lawyering in declining cases.

To be sure, there are other, perhaps more conventional, efforts underway to oppose the Texas law. The Department of Justice challenged the constitutionality of the Texas law in federal court on October 18. While the Supreme Court again refused to "immediately block" the Texas law, it could take months for this case to wind its way through a federal docket and reach a final conclusion. Congressional Democrats are working to protect abortion rights with legislation, but, with the pace at which federal legislation progresses, such a bill could take years before it even comes to a vote in Congress. There is no guarantee that after the 2022 midterm elections Democrats will even be in a position to usher such legislation through Congress. Polling on the Democrats' chances of retaining control of Congress at this point certainly does not give the party much to be excited about. Furthermore, as a corollary, there is no guarantee that a Democratic president would occupy the White House to sign such a bill into law after 2024.

Each of those avenues is premised on the luxury of time. The harms of the Texas law could spread in the meantime. Countless women are being deprived of their constitutional right to abort their pregnancies. Indeed, some Texas facilities that perform abortions temporarily stopped performing abortions altogether out of fear of the legal liability that they could incur as a result of the law.

Fear could also prevent women from seeking abortions in the first place out of concern that they might expose their families and friends to legal jeopardy. And while the law brings fear to some, it could bring profit to others—abortion bounty hunters who stand to earn millions of dollars off of Texas women, their loved ones, and anyone who (knowingly or unknowingly) helps them obtain an abortion. Other states could adopt similar schemes. Republican officials in Arkansas, Florida, and South Dakota have expressed interest in using the Texas abortion law as a model for new abortion legislation in their states.

Lawyers who decline to represent abortion bounty hunters have the power of relative immediacy on their side.

Undoubtedly, there will be those who want to pursue abortion bounties, so there will also be lawyers who will help them do so. Lawyers who refuse to help plaintiffs collect abortion bounties, should similarly be prepared to help defendants pro bono.

The new abortion law will most directly harm low-income women and women of color. Because those who are likely to help facilitate a woman's abortion will inevitably be members of her social network, they are also likely to be in the same socioeconomic bracket due to social forces like redlining and intergenerational poverty. Even those who may help a woman get an abortion without knowing her, like rideshare drivers, are likely to be low-income as well. In other words, the burden of this law will fall most heavily on some of the most vulnerable Texans. These defendants would have the hardest time affording legal representation and the most to lose financially if they are legally required to pay bounties. Indeed, what makes the abortion law so insidious is that it leverages economic inequities to frighten women into maintaining unwanted pregnancies and intimidates those who would otherwise help them. Representing these defendants pro bono could simultaneously strike a blow for abortion rights and weaken the grip of classism.

The cruelty of situating the battle for abortion rights in the civil court system could lead to the downfall of the Texas abortion law. Because the success of the law effectively hinges on navigating the legal system, lawyers are best positioned to oppose it. They could single-handedly blunt the impact of the Texas law.

Ebony Slaughter-Johnson is a freelance writer and a writing fellow for Local Peace Economy, a project of the Independent Media Institute. Her work has appeared on AlterNet, U.S. News & World Report, Equal Voice News and Common Dreams.

This article was produced by Local Peace Economy, a project of the Independent Media Institute.

Democrats in D.C. promised consequential racial justice reform— where is it?

The lesson of the 2020 U.S. election cycle was clear: Do not underestimate the influence of Black voters. At a time when the electoral process was characterized by voter suppression, Black voters in crucial swing states like Pennsylvania, Michigan, and Wisconsin gave this country renewed hope by securing the presidency for President Joe Biden. Thanks to the Black voters who pushed Reverend Raphael Warnock and Jon Ossoff over the electoral edge in Georgia's runoff elections on January 5, Democrats took control of the House of Representatives and the Senate. With Democrats in control of the executive and legislative branches, the promise of much-needed progressive change with respect to racial justice seemed to be on the brink of becoming reality.

Instead, in the more than nine months since Democrats have helmed the federal government, all that has occurred in the name of racial justice is the recognition of Juneteenth as a federal holiday that marks the day slavery ended in the United States (June 19, 1865 — two years after the Emancipation Proclamation was issued).

I do not mean to diminish the historical significance of "Juneteenth National Independence Day" as it is officially known or to disrespect the work of Black activists who have advocated for commemorating this important historical milestone for years. And as Republicans in state legislatures battle to keep discussions of racial inequality out of public schools, I applaud efforts to recognize Black history and culture. I also understand that Democrats are in a complicated position. Republicans have long shown hostility to racial justice issues, preferring instead to court white supremacists. The pressure to legislate for the benefit of Black voters has unfairly fallen exclusively on the shoulders of the Democratic Party, but that is the burden the party agreed to bear when it competed for support from the Black community.

Black voters supported national Democratic candidates in reliance on their promises. These candidates committed themselves to enacting consequential racial justice legislation. Where is it?

The tragic murder of George Floyd in 2020 inspired the largest mass protest in American history and brought police reform to the forefront of the national consciousness. Democrats had the opportunity to follow up the historic conviction of former Minneapolis police officer Derek Chauvin for the murder of Floyd with the introduction of aggressive police reform, but, instead, the Democratic Party squandered the moment by wasting time negotiating with Republicans who are more interested in creating a cultural boogeyman out of critical race theory than actually legislating. Although the House passed the George Floyd Justice in Policing Act, any hope of police reform currently lies dormant in the Senate.

Republican-led state legislatures have passed a number of bills designed to limit the franchise in 2021 alone, an inevitability after the Supreme Court announced its decision in Shelby County v. Holder in 2013. The decision essentially castrated the Voting Rights Act, determining that the preclearance formula used to determine which jurisdictions must have their voting regimes approved by the federal government was unconstitutional.

Texas has become synonymous with voter suppression recently. The state enacted a law on September 7 that, among other changes, eliminates 24-hour voting and drive-through voting, measures that are likely to most heavily burden voters of color. The law also provides poll watchers with new freedoms to monitor voters' activity, presenting ripe opportunities for racial profiling.

State voter suppression, particularly in states with high populations of people of color, ahead of the 2022 midterms intensifies the urgency of enacting federal voting rights protections. Yet, efforts to legislate have stalled. The House passed the For the People Act and the John R. Lewis Voting Rights Advancement Act of 2021 earlier this year, but the Senate appears to be more invested in protecting the filibuster than in protecting the right to vote. Senate Democrats rallied support for alternative voting rights legislation, but progress on that legislation has since been thwarted by Senate Republicans. After months of exhortations from constituents, activists, and state officials, including Texas state Democrats who risked arrest and a pandemic to lobby senators, no progress has been made to push reforms to protect voting rights.

Support for reparations has increased in recent years. The 2020 Democratic presidential frontrunners suggested that they supported the idea of at least exploring how the country might go about distributing reparations to the descendants of enslaved Black Americans. Reparations programs have assumed various forms. Several Virginia colleges and universities will atone for slavery through economic and educational advancement opportunities. Evanston, Illinois, broke new ground in the implementation of reparations, inaugurating a $10 million fund for housing grants in March. The state of California and Los Angeles County have returned land to the descendants of a Black couple who were dispossessed of their property during the Jim Crow era. Against the backdrop of progress at the state and local level, precious little has occurred at the federal level. More than 30 years after it was first introduced, a bill to simply study reparations finally made its way out of the House Judiciary Committee only to languish in legislative limbo somewhere within the House.

But at least Democrats, and Republicans, in both houses of Congress could unite to make Juneteenth a federal holiday. Even this victory is hollow. Black Americans tend to be concentrated in the types of jobs in the food service and retail industries that are not required to observe federal holidays. Ironically, the day of rest, and hopefully reflection, afforded by Juneteenth could be largely enjoyed by the white Americans who work in government offices and professional offices.

Although they expected deliverables, Black Americans have mostly experienced delays. The message to Black Americans is to wait. Wait for Congress to pass the infrastructure bill. Wait for Congress to negotiate to keep the federal government operative. Wait for the legislative chaos to die down. Wait for the Democrats to expand their majorities in Congress after the midterm elections. Wait for another state to introduce more egregiously restrictive voting rights laws. Wait for the racial wealth gap to widen. Wait for another Black American to die at the hands of the police. Wait for another global protest movement to develop that galvanizes public opinion in favor of police accountability.

Black activists have vocally demanded enhanced voter protections for years. Nearly 90 percent of Black Americans who participated in a 2020 Gallup panel voiced support for police reform. Meanwhile, 74 percent of Black Americans polled by AP-NORC in 2019 supported the implementation of a federal reparations program. These initiatives are not pet projects for Black Americans. They are vital public policy imperatives that Democrats were elected to achieve.

As 2021 comes to a close, congressional lawmakers will transition from governing mode to campaigning mode. Though President Biden and congressional Democrats deserve credit for guiding the country through the coronavirus pandemic, rejoining the Paris Agreement, and expanding child tax credits, all of which have racial justice components, their only specific legislative accomplishment on the racial justice front is the Juneteenth federal holiday. As symbolic as that holiday is, it is no substitute for safeguarding constitutional rights, protecting Black lives, and potentially minimizing the racial wealth gap. When congressional Democratic candidates appeal to Black voters for support during the 2022 election, they may find that the holiday similarly fails to motivate Black voters to head to the polls.

Ebony Slaughter-Johnson is a freelance writer and a writing fellow for Local Peace Economy, a project of the Independent Media Institute. Her work has appeared on AlterNet, U.S. News & World Report, Equal Voice News and Common Dreams.

This article was produced by Local Peace Economy, a project of the Independent Media Institute.

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