For Black Americans, the Supreme Court decision in Louisiana v. Callais is an especially poignant moment of outrage. There are millions of Black people who survived the full violent might of Jim Crow to secure the Voting Rights Act only to outlive the protections of the law that their friends and family were maimed and murdered to secure. Eddie Glaude succinctly described this rage when he told MS NOW’s Nicolle Wallace that “you get tired of people playing fast and loose with your dead.”
It is important to note that the Supreme Court did not rule that minority-dominant districts or Section 2 of the Voting Rights Act is unconstitutional per se. The 6-3 opinion written by Justice Samuel Alito changed the criteria for proving racial discrimination in drawing congressional districts. In brief, the ruling declared that any lawsuit claiming that a congressional district is racially discriminatory under Section 2 of the Voting Rights Act must be able to prove discriminatory intent from the people drawing the district; proving discriminatory effect would be insufficient.
There are millions of Black people who survived the full violent might of Jim Crow to secure the Voting Rights Act only to outlive the protections of the law.
It is that change that has led scholars, pundits, activists and Justice Elena Kagan herself to declare that the Voting Rights Act, which is one of the two laws that ended Jim Crow, is a dead letter.
While the damage to the Voting Rights Act was immediately apparent, and voters, candidates and political parties are grappling with its results, the logic introduced in Callais can just as wrongly be applied to the other law that ended Jim Crow: the Civil Rights Act of 1964. For example, Title VII of the Civil Rights Act prohibits intentional employment discrimination against applicants, but it also prohibits the implementation of policies and tests not related to the job itself that have a discriminatory effect. This is called disparate impact. Applying Callais’ logic to Title VII would allow employers to use proxies unrelated to a job to discriminate against applicants because of their race, while only banning intentional discrimination.
Ask yourself: Is it only racism if the bigot calls a person a slur before discriminating against them, or is it still racism if the bigot doesn’t say anything? By claiming that we have to know the intent of people drawing a map with a discriminatory effect, the court is ruling that self-confessed discrimination is the only kind that’s forbidden.
The Alito ruling is telling racists to be, as David French described it, smart enough to cosplay their bigotry as something else. It does not matter how thin that cosplay is, just as long as the court, as UC Berkley Law School Dean Erwin Chemerinsky asserts, can point to it as an alternate race-neutral explanation in the absence of an explicit declaration of racism.
And the decision gave them an alternate explanation. The majority opinion allows for drawing districts with racially discriminatory effects if it is characterized as a partisan gerrymander designed to protect incumbents and increase the dominance of a political party. The future of debates over civil rights protections for all Americans lay in the distinction and interplay between discriminatory intent and discriminatory effect.
If you agree that discrimination is still discrimination even if someone hasn’t been called a slur, then you know that discriminatory effect is what matters, and you recognize that the impact of a policy matters far more than what may or may not have been intended. This would mean you understand the history that necessitated the Voting Rights Act. In an interview with MS NOW’s Ali Velshi, Nikole Hannah-Jones pointed out that grandfather clauses, poll taxes and literacy tests were, on their face, race-neutral methods of voter suppression that could be (and sometimes were) used to hurt poor white people, too, but those policies suppressed nearly all of the Black vote in the Jim Crow South.
If the only proof accepted by the courts is discriminatory intent, then the enforcement of civil rights becomes impossible.
The hard truth of civil rights law is that if the only proof accepted by the courts is discriminatory intent, then the enforcement of any civil rights — including protections based on sex, gender, ability, ethnicity and religion — becomes impossible. Bigots will just keep their bigotry to themselves while designing policies and laws using seemingly neutral proxies to discriminate against the target group of their choice.
The genius of the 1960s civil rights laws was that they protected the rights of majority and minority communities without being limited to one manifestation of racism. Visionaries like Thurgood Marshall, Pauli Murray and Martin Luther King Jr. understood that little discrimination would be prevented if discrimination were only defined by intent. They understood that impact and effect matter, because while a bigot can lie with their words, they cannot lie with their actions.
For a time, Republicans and Democrats agreed with the civil rights revolution on this. In 1982, both the Republican and Democratic parties codified that discriminatory effect was sufficient to prove that a law or policy violated Section 2 of the Voting Rights Act. Both parties renewed the Voting Rights Act with this specific provision under Section 2 in 1992 and in 2006.
For good reason. Discrimination doesn’t have to be announced as such to count as such. It’s something that everybody knows, even if everybody doesn’t admit it. Even those who say it’s only discrimination if a person or party is open about it wouldn’t accept that as a condition if they were the ones being discriminated against.
Nicholas Mitchell
Nicholas Mitchell is an assistant professor of curriculum studies at the University of Kansas. He is a curriculum theorist whose scholarship focuses on the intersection of education theory, policy and practice. He is the author of "On Bigotry" by Bloomsbury Publishing.