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For an hour this morning, starting at eleven o’clock Eastern Time, the US Supreme Court will interrogate lawyers representing the state of Texas, the federal government, and a young woman who recently graduated from Louisiana State University. That woman, Abigail Noel Fisher, is suing the University of Texas in an attempt to recoup a $50 application fee and a $50 housing deposit that she forfeited when she was denied admission to UT several years ago.

It’s a weird case, and it gets weirder. The Supremes last addressed affirmative action in college admissions — the issue at the heart of today’s case — just nine years ago, with Justice Sandra Day O’Connor fashioning a narrow compromise that allowed campuses to consider race (but not in any quantifiable way) in order to promote campus diversity (but not as redress for past discrimination). Many observers consider it unlikely that Justice Anthony Kennedy will be persuaded to completely abandon that standard, particularly so soon after it was implemented.

Complicating things even further, the newest member of the Court — Elena Kagan, herself a former university dean (Harvard Law, 2003-2009) — won’t be participating, having recused herself due to her involvement in the case during her brief tenure as President Obama’s first Solicitor General.

The Court is deeply divided on the issue of affirmative action right now. In a 2007 opinion Chief Justice Roberts — joined by the Court’s other three staunch conservatives — wrote flatly (and famously) that “the way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” That doesn’t leave a lot of wiggle room.

On the other side, Kagan is as noted sitting this one out, and two of her liberal colleagues are on record in support of affirmative action in college admissions. The third, Obama appointee Sonia Sotomayor, hasn’t written on the subject yet as a justice, but she seems an unlikely defector on this issue.

Given all this, and barring any truly bizarre surprises, there are three ways this decision could come down:

First, Justice Kennedy could join with the Court’s four most conservative justices in a decision striking down affirmative action in college admissions entirely. Many observers consider this unlikely, but others note that Kennedy has never cast a vote on the Court in favor of an affirmative action policy.

Second, Kennedy could join with the Court’s conservatives in a decision that preserves campus affirmative action, but limits it even further. Considering the narrow scope in which admissions officials currently operate, and the fact that it was Kennedy himself who established the present framework, this is likely to result in a head-scratcher of a decision.

And third, Kennedy could join with the Court’s three liberals in affirming the status quo, or something similar. This would mean a four-four tie, which would, given the Court’s rules, leave the Texas admissions setup intact without creating new precedent. If that happens, the Court may well call a do-over with a new case — and Kagan’s participation — in the fairly near future.

If I had to bet, I’d bet on number three. But I wouldn’t bet much. (For a deeper analysis of all this from someone who knows much more than I do, check out this detailed analysis from SCOTUSblog. For my own take on the moral and practical issues at stake in the case, read this rant from yesterday.)

Oral arguments are at eleven o’clock this morning. Transcripts should be made available this afternoon, and audio at the end of the week. (The Supreme Court does not permit video recording or livestreaming of oral arguments.) Expect lots of wild guessing and speculation by the end of the day about what the arguments mean (including from me), and look for an actual decision to come down sometime next spring.

Tomorrow the US Supreme Court will hear oral arguments in the case of Fisher v. Texas, addressing the constitutionality of affirmative action in college admissions. I wrote a piece on the history of the case and how the Court might rule back in July, and I’d encourage you to go take a look at it if you’re not familiar with the background. But this morning I want to talk about something a little less technical.

Here’s how the case’s plaintiff, rejected University of Texas applicant Abigail Fisher, described what’s at stake in today’s New York Times:

“I’m hoping that they’ll completely take race out of the issue in terms of admissions and that everyone will be able to get into any school that they want no matter what race they are but solely based on their merit and if they work hard for it.”

For better or worse, that’s not remotely on the table.

Colleges accept and reject candidates for all sorts of reasons that have little or nothing to do with merit. They take legacies — relatives of other graduates — because those admissions are good for alumni donations. They accept football players because bowl games and shirt sales are good for the bottom line. Many private colleges consider a student’s wealth in admissions decisions, and many publics are pumping up out-of-state admissions to enhance tuition revenue. None of this has anything to do with merit.

And all of it is completely legal.

That’s worth underscoring. It’s not illegal to discriminate on the basis of non-academic factors in college admissions in the United States. There are no barriers to rejecting students because they’re not rich, or went to crappy high schools, or studied the piccolo instead of the oboe in a year when you’ve already got enough piccolo players. Unfair, arbitrary, and venal admissions standards are part of the fabric of every selective college’s decision-making process.

And there’s something truly twisted about the argument that all of that is okay but affirmative action — precisely because it’s intended as a remedy for the country’s long history of racial discrimination, a history that didn’t end in 1865 or 1954 or 1963, but continues to this very day — is not.

When we as a country say that it’s right and just to accept one student because her high school had a great gymnastics program or her parents are big donors or her grandfather was a dean while while we simultaneously recoil at the “racism” of giving a boost to another student who, as a result of the nation’s persisting inequities, had no chance to acquire any of those advantages, we aren’t saying we want to move beyond our history of racial discrimination.

We’re saying we want to lock it in.

Folk singer Phil Ochs’ first album was 1964’s All the News that’s Fit to Sing. Only it wasn’t.

Sometime in the next few months we’re going to sail unknowing past the 50th anniversary of the recording of Ochs’ real first album, a record he appeared on anonymously and kept secret until his death. Released in 1963 — nobody knows when in 1963 — under the name of a non-existent band called The Campers, “Camp Favorites” was a cheap quickie album of kids’ camp songs that Ochs recorded for hire with a (still anonymous) female singer, a banjo player, and a small kids’ chorus.

Ochs biographer David Cohen first stumbled across the existence of the album in 1998, and wasn’t able to actually confirm its existence until two years later. If you’re an Ochs fan it’s a great story, told in full here. And now that it’s 2012, most of the tracks on the album are up on YouTube.

Which brings me to this next bit.

Cannibal King is a camp song I’d never heard of before, though Googling shows that it’s still kind of popular. It can be found in a variety of different versions in a variety of different places online, but here are the lyrics from the Ochs version:

A cannibal king with a brass nose ring fell in love with a beautiful maid
And every night by the pale moonlight across the lake he came
Oh a hug and a kiss for the Zulu miss in the shade of the old palm tree
Every time they met they sang a duet and it sounded like this to me…

Kiss kiss … kiss kiss … kiss kiss dah dee dah doh-oh-oh
Kiss kiss … kiss kiss … because he loved her so

Now a guy named Jim who was mighty thin fell in love with a stout young maid
Each afternoon they’d sit and spoon when nobody else was home
Oh a hug and a kiss for the sweet young miss in the shade of the old pine tree
Every time they’d meet it was oh so sweet and it sounded like this to me…

Kiss kiss … kiss kiss … kiss kiss dah dee dah doh-oh-oh
Kiss kiss … kiss kiss … because he loved her so

Oh a Congo chief who had false teeth fell in love with a Congo maid
And every dawn just as sure as you’re born he’d stop to say hello
Oh a hug and a kiss for the Congo miss in the shade of the yum-yum tree
Every time he came it was just the same and it sounded like this to me…

Kiss kiss … kiss kiss … kiss kiss dah dee dah doh-oh-oh
Kiss kiss … kiss kiss … because he loved her so

An Indian brave began to rave when he saw an Indian miss
He built a new canoe for two and paddled her every night
Oh a hug and a kiss for the Indian miss as they sailed across the sea
They both got wet but they sang a duet and it sounded like this to me…

Kiss kiss … kiss kiss … kiss kiss dah dee dah doh-oh-oh
Kiss kiss … kiss kiss … because he loved her so.

Ah, 1960s kid culture. Not hard to see why Phil didn’t tend to brag about it.

When the student union at the University of Florida was built in 1967, students requested that it be named in honor of outgoing university president J. Wayne Reitz. Today, students are fighting over whether that name should stand.

As UF president, Reitz participated in a purge of gay faculty and students that involved the firing and expulsion of dozens of people. During his administration, the university also failed to integrate until placed under court order, and then only haltingly, and in 1967 a popular professor was denied tenure  because of his political views.

Student activists at UF want the union building renamed for Virgil Hawkins, a local black scholar who fought a ten-year battle to integrate the UF school of law in the 1940s and 50s, but the attempt has run into resistance from the campus student government.

Student of color and LGBT groups on campus have held several demonstrations around the issue, with tensions rising after a popular law professor’s car was vandalized with the word “faggot” in mid-September.

Activists collected five hundred signatures in recent months in favor of a non-binding campus referendum on the name change, but student government officials have attempted to block it twice — first by claiming that the signatures were improperly obtained, and then, when that challenge was rejected, by objecting to the wording of the referendum question. Critics of the student government say the body is being improperly influenced by the Reitz family, who remain major donors to the university.

In a late September ruling the student government court stripped the contested language from the question, but allowed the referendum to be placed before the students, with the referendum expected later this month.

I’m a big fan of Jay Smooth’s take on why telling people they’re racist is often counter-productive, but there are moments when not calling people racist is indefensible.

I just got a heads-up that the student who’s trying to start a White Student Union at Towson University is planning on bringing a guy named Jared Taylor to campus next month. Here’s what Wikipedia has to say about Taylor:

Taylor believes that white people have their own racial interests, and that it is intellectually valid for them to protect these interests; he sees it as anomalous that whites have allowed people of other ethnicities to organize themselves politically while not doing so themselves. His journal American Renaissance was founded to provide such a voice for white interests, as well as to convince whites that this enterprise is a legitimate one. … Taylor’s views have been described as racist by some academics, political commentators, journalists, and various other organizations. Taylor himself rejects any accusation of racism; he claims that his views are reasonable and moderate, and that they were considered normal by most key figures in American history.

And for context, let’s look at something Taylor wrote a few years ago:

“Our rulers and media executives will try to turn the story of Hurricane Katrina into yet another morality tale of downtrodden blacks and heartless whites, but pandering of this kind fools fewer and fewer people. Many whites will realize — some for the first time — that we have Africa in our midst, that utterly alien Africa of road-side corpses, cruelty, and anarchy that they thought could never wash up on these shores.

“To be sure, the story of Hurricane Katrina does have a moral for anyone not deliberately blind. The races are different. Blacks and whites are different. When blacks are left entirely to their own devices, Western Civilization — any kind of civilization — disappears. And in a crisis, it disappears overnight.”

To call this claim racist isn’t pejorative, or even argumentative. It’s straightforwardly descriptive. And to say that Taylor’s views “have been described as racist” instead of saying that they’re racist is silly. It’s pointless. It’s absurd. If this passage isn’t racist, if its author isn’t racist, then literally nothing and nobody is.

March 2013 update | Hi, all! I just tweeted a link to this post because Matthew Heimbach, the Towson White Student Union founder who was looking to bring Jared Taylor to campus last year, was right in the middle of today’s horrible racist brouhaha at CPAC.

About This Blog

n7772graysmall is the work of Angus Johnston, a historian and advocate of American student organizing.

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