Two Sad Days – Fisher (Affirmative Action) and Shelby County (Voting Rights Act)

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By Benjamin G. Davis, Associate Professor of Law, University of Toledo College of Law

I understand people trying to put a positive spin on yesterday’s Fisher decision on affirmative action and today’s  Shelby County decision on the Voting Rights Act of the Supreme Court and I hope I am very wrong but these are a couple of sad days.  Given today’s decision, yesterday’s decision tightening the vision of strict scrutiny in affirmative action appears more to be about the Supreme Court being unwilling to deal two huge setbacks in one term.

First, the Supreme Court sets up a future setback on affirmative action by the Fifth Circuit – a Circuit generally hostile to affirmative action.  Second, the Voting Rights Act decision is a huge setback that is oblivious to the history and recent Congressional fact-finding.  It is a cruel joke to expect the current Congress to do the work of redrawing maps and do a better job than the view just seven years ago.  Efforts to set up universal standards will, of course, be watered down as to be meaningless in protecting the right to vote of the weak, the poor and the minority and especially black voters.  The virulence in voter suppression that I personally experienced last election here in Ohio ( tells me that we are not so far as we would wish from those days in the mid-1960’s.

I doubt Obama has it in him to lead on this – it is on the people to do it as usual – even with a black man in the White House.

As a matter of international law, meaningful participation in one’s governance as part of internal self-determination in a state is a human right.  Voting is at the heart of that expression.  Similarly,  elimination of racial discrimination through our narrow lens of diversity is also a human right.

These are sad days of the United States turning back the clock.

The arc of my life from 1960 when I integrated first grade at private schools and opportunities were given to me through to now where I see the once open doors being closed for my children by the powers that be makes these sad days.  People of goodwill should continue to fight to keep those doors open and mobilize to overcome these retrograde decisions.