chapman.0830 - 08/29/05 - A Supreme Court headed by Supreme Court Justice Antonin Scalia has questions for Chapman University Law School professor John Eastman as he and California Attorney General Bill Lockyer argue the 1905 ''Lochner v. State of New York'' case during a re-enactment Monday afternoon at Chapman University. (Credit: Mark Avery/Orange County Register/ZUMA Press)

*Justice Antonin Scalia‘s statements toward the end of hearings on affirmative action today single-handedly proved why affirmative action policies are needed in America in the 21st century. According to Yahoo Politics:

Near the end of oral argument in a high-profile affirmative-action case Wednesday, conservative U.S. Supreme Court Justice Antonin Scalia suggested that black students benefit from a “slower track” at less prestigious schools and are thus harmed by affirmative action.

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Putting aside the reality of the wealth, income and property ownership gaps that currently exist between blacks and whites in America. We have to begin to get honest about what it means when a Supreme Court Justice makes statements such as the above. It means he truly has not accepted race, and its deep-rooted effects on the America we see today. An America where white Americans own 98% of the land, a country where black Americans have a median household net worth of $1,700.00 when you deduct the family car. These statements by Justice Scalia fly in the face of history, and show how our country has lost its touch with its own past and become lost in a veneer of diversity.

When President Johnson spoke at Howard University in 1965, the Civil Rights bill was less than a year old, and racial justice for American Negroes was just forming. But it was clear from the tone and content of his speech that midsummer day in Washington, D.C., that the President had retribution for the American legacy of discrimination toward blacks on his mind.

For too long an entire section of America existed in the shadows, forced to endure a second-class existence. Negroes for a time that stretched back past the Declaration of Independence were unable to participate in the American Dream, and were forced to lie in its nightmare of racial boundaries. By enacting legislation, Johnson gave force to the dreams of activists like Martin Luther King Jr. LBJ’s vision of Civil Rights was grounded in recognition of the historical cost borne by American Black families as a result of Slavery and Jim Crow.

This new legislative energy for civil justice that was birthed in the 1960’s did not find its justification in blind equality, rather it was a first step in the attempt to make Black families damaged from 1619 well into the 20th century whole and competitive.

The catalyst for this change was the need for us to start dealing with one of the greatest wealth transfers in modern history. A transfer of wealth from Blacks, who saw their free labor create immense fortunes in steel mines for companies like U.S. Steel in Alabama during the 1930’s, on Cotton fields in South Carolina in the 1830’s and working Tobacco Fields in Virginia throughout the 1730’s. For several hundred years African Americans were left out of the American dream.

Today, as the argument has shifted from correction of historical wrongs, to one of diversity the above truth behind affirmative action has been confused. It is not simply an attempt to make classrooms look more diverse; it is an attempt to deal with why these classrooms are not. It is at its heart a way attempt to balance the advantage whiteness conveys in America because of the country’s legacy. To hear a Justice so clearly show his lack of understanding of this fact is not only shocking, but also alarming.

As a UCLA graduate, I feel that access to elite institutions, along with a number of additional policy steps are necessary if we ever wish to move forward as a country. Without this recognition of our country’s inequity in access to opportunity, we will see a social reversion as the effects of the opportunity gaps mentioned above take hold.

In my prior piece published on Huffington Post UCLA, Male Black Bruins and the Myth of Individual Merit, I stated

Laws that created actions that were both affirmative and necessary, have been muted under a belief that America the land of the free is beyond racial inequity. An inequity not purely based out of skin color, but also rooted in a long history of chattel slavery whereby the subjugated were property. Our courts now moving past an argument that acts need to be taken for correction of longstanding bondage and its aftermath, they instead have moved to other reasoning for affirmative action. From first framing it under discrimination, then moving to diversity, in the end what has been lost is the cost that American Slavery has left on a damaged Black America. As those consequences bear down on a group merely 45-50 years removed from a status as second class citizens, we are left to look at the long-lasting fallout…America has moved forward, but in the process left the families of those subjugated behind as they struggle for access to the American dream. Those without historical context are using individual merit as a cover for the outcome of the country’s long dark history.
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The problem with the merit based analysis is that merit is never truly individual; it is a composite of ability, effort, opportunity and in addition access that comes from family and community. Thus, when you do expensive computer camp at UCLA while in junior high school, live in a neighborhood of lawyers & doctors, have a grandfather that leaves a large inheritance or just have family that have relationships at the University, your personal achievement comes on the shoulders of those around you that support your success. I believe merit is very real, but the individuality of it not so much so.

As we follow this important decision to be made by the highest court of the land in the coming weeks, the hope is that the Supreme Court justices make their decision being informed on history, and its very real impact on access to opportunity today.

Antonio Moore is a attorney based in Los Angeles. He is also one of the producers of the documentary on the Iran Contra, Crack Cocaine Epidemic and the resulting issues of Mass Incarceration “Freeway: Crack in the System presented by Al Jazeera”. Mr. Moore has contributed pieces to theGrio, Huffington Post and Eurweb on the topics of race, mass incarceration, and economics.

“That beginning is freedom; and the barriers to that freedom are tumbling down. Freedom is the right to share, share fully and equally, in American society–to vote, to hold a job, to enter a public place, to go to school. It is the right to be treated in every part of our national life as a person equal in dignity and promise to all others. Freedom is not enough. You do not wipe away the scars of centuries by saying: Now you are free to go where you want, and do as you desire, and choose the leaders you please.” President Lyndon Johnson at Howard University