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Ebbs & Flows: The Courts in Racial Context
Unformatted Document Text:  perpetuate itself, and is yet in some ways reminiscent of Jim Crow era practices. 77 Another example is how the “neoconservative racial project” (as a new form of racism) goes so far as to use the concept of “color-blindness” to argue against affirmative action, accusing it of being a stigmatizing racial preference. 78 B. Application to the Courts The outline of cases and brief comment on current racism given above demonstrate ways in which the civil rights community successfully used the legal system to made headway against segregation in higher education from the 1970s to the 1990s. It also indicates how they were limited in their efforts as what followed in the affirmative action cases can be seen as the expected backlash. This period signaled “the Right’s response,” as attacks on affirmative action sought to make back the gains of the earlier court rulings integrating higher education. I argue that this shift in the political climate affected the courts’ decisions. In the 1970s, courts seemed eager to enforce the 1964 Civil Rights Act and contribute to the desegregation of our nation’s schools. By the mid-1990s, it seems that the attitudes of the courts had changed. The Civil Rights Movement of the 1960s was not a recent threat but a distant memory. A reactionary Right was growing. Some argue that the backlash began as soon as the anti- discrimination policies were put into place following the uprisings of the 1960s. 79 Today, most of the legal challenges claiming to advocate for “civil rights” are from those who would have been in opposition to the struggles of Martin Luther King, Jr. I suggest that as other social institutions, courts too have been following this trend toward the more conservative. It seems no coincidence, therefore, that the Eleventh Circuit ruling for the State in the desegregation case Knight v. Alabama was issued the same year as the Fourth Circuit opinion striking down the “racial preference” scholarship in Podberesky v. Kirwan. This turning point in 77 Bonilla-Silva, supra note 120 at 90. 78 Omi and Winant, supra note 119 at 57. 79 Id. at 78. 18

Authors: Deo, Meera. and Allen, Walter.
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perpetuate itself, and is yet in some ways reminiscent of Jim Crow era practices.
Another
example is how the “neoconservative racial project” (as a new form of racism) goes so far as to
use the concept of “color-blindness” to argue against affirmative action, accusing it of being a
stigmatizing racial preference.
B. Application to the Courts
The outline of cases and brief comment on current racism given above demonstrate ways
in which the civil rights community successfully used the legal system to made headway against
segregation in higher education from the 1970s to the 1990s. It also indicates how they were
limited in their efforts as what followed in the affirmative action cases can be seen as the
expected backlash. This period signaled “the Right’s response,” as attacks on affirmative action
sought to make back the gains of the earlier court rulings integrating higher education.
I argue that this shift in the political climate affected the courts’ decisions. In the 1970s,
courts seemed eager to enforce the 1964 Civil Rights Act and contribute to the desegregation of
our nation’s schools. By the mid-1990s, it seems that the attitudes of the courts had changed.
The Civil Rights Movement of the 1960s was not a recent threat but a distant memory. A
reactionary Right was growing. Some argue that the backlash began as soon as the anti-
discrimination policies were put into place following the uprisings of the 1960s.
Today, most of
the legal challenges claiming to advocate for “civil rights” are from those who would have been
in opposition to the struggles of Martin Luther King, Jr. I suggest that as other social institutions,
courts too have been following this trend toward the more conservative.
It seems no coincidence, therefore, that the Eleventh Circuit ruling for the State in the
desegregation case Knight v. Alabama was issued the same year as the Fourth Circuit opinion
striking down the “racial preference” scholarship in Podberesky v. Kirwan. This turning point in
77
Bonilla-Silva, supra note 120 at 90.
78
Omi and Winant, supra note 119 at 57.
79
Id. at 78.
18


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