One of the most pervasive questions swirling around the probable confirmation of Judge Sonia Sotomayor to the U.S. Supreme Court has been, “did she receive preferential treatment because she was a Latina from the Bronx?” Commentators, particularly from the far right, have spent air and ink to argue that Sotomayor was only admitted to Ivy League schools, received top grades, swiftly advanced in her career, and was selected to be the next Supreme Court justice—exclusively because she is Latina.
Many of these same commentators have pivoted from these unfounded conclusions to attack Sotomayor for showing bias against average, hard-working, White men, by repeatedly discussing her limited, noncontroversial role in the New Haven firefighter case, Ricci v. DeStefano. Republican senators on the Judiciary Committee have brought up the Ricci case everyday this week during Sotomayor’s confirmation hearings, and called on Mr. Ricci to testify yesterday against Judge Sotomayor. Their argument seems to be: Sotomayor has been a beneficiary of unfair preference over White men like Mr. Ricci, and she will continue to prefer people like her (i.e. people of color) over Whites from her seat on the Supreme Court.
Frank Ricci could say nothing about Judge Sotomayor’s fitness for the Supreme Court. The case was not even about preferential treatment, but instead challenged our reliance on testing regimes. What Mr. Ricci’s testimony did do is voice the unspoken fear behind the discussions of preferential treatment: White men are wronged when people of color and women are “favored.”
The political motivation behind the claims of preferential treatment and the spotlight on Frank Ricci has ignited a new round of discussions about the dreaded alliteration: affirmative action. And so while the allegations made to diminish the accomplishments of Judge Sotomayor are outrageous, they cannot simply be tossed away as far right rhetoric. There is a critique of affirmative action shared by many in the mainstream, namely that all preferences do is diminish the real achievements of people of color and women and engender resentment in working class White communities whose opportunities are being stolen. The mainstream fear is that any “unequal” treatment will harm rather than help the march toward equality.
This mainstream critique of affirmative action has something in common with the egregious proclamations that have been made about Sotomayor. They both rely on the same falsehood: that there is an even playing field across racial, economic, and gender lines.
It is this myth of the even playing field that allows the notions of “preference” and “unfairness” to exist in the first place. As soon as you acknowledge that the playing field may be uneven, the concepts of preference and fairness become much more complicated: If I have a head start in a footrace, can I reasonably complain that my opponent is given a boost along the way? And if my head start is long and the boost is short, does it really make sense for me to call it “preferential treatment?” The reality is that the playing field of American society is not even. The appeal of the ideal, however, is strong, and the pride associated with it deep. It is a vision so fundamental to American identity that it is the second line of the Declaration of Independence: All men are created equal. It is a beautiful ideal, and some have shown its promise, notably our current president, the current first Black Attorney General Eric Holder, and the first female Supreme Court justice Sandra Day O’Connor.
But these examples are, at best, positive indicators that we may one day all be equal. What they do not represent is that structural exclusion is a thing of the past.
Take, for example, our public education system. Every kid in America gets a fighting chance to succeed through hard work. But how does this play out when our schools are not even playing fields? The still segregated and poor urban and rural schools that most students of color attend do a worse job of educating those students than the more integrated and wealthy suburban schools. And so, in 2006, 51 percent of Black students graduated from high school nationwide, as compared to 76 percent of White students. In that same year, a Black student was more than three times more likely than a White student to be suspended, despite research showing that Black students are no more likely to misbehave. Add to all this that Black and Latino students are far more likely to attend schools armed with metal detectors and police, and you see how drastic the differences really are.
These statistics are a few among many that lay bare the extreme racial injustices that persist in our society (others: the infant mortality rate for Black families is twice that for White families; one in fifteen Black males over 18 are in prison, compared to one in 106 White males in the same age group). The strong temptation when those with privilege are presented with statistics like these is to protest–it is not our fault, we did not create these inequities. But these inequalities exist and persist because of our actions and inactions. There is no credible movement, for example, to revamp the criminal justice system, despite statistical evidence of gross racial disparities.
Once we debunk the myth of an even playing field, the concepts of preference and unfairness crumble. This is when we can see clearly and talk honestly about the reality of our society. Every human-made structure (schools, courts, the market, etc.) in our society systematically “prefers” those with power and privilege, who presently are White men. And so, our society is systematically “unfair” to people of color and women.
As for Judge Sotomayor: What does it mean to say that she received “preferential treatment?” Would anyone dispute that she would have had more material advantages in a working class, White suburb? Was she “preferred” over a White student when she got into Princeton? What about all the legacy students who were preferred to non-legacy students at Yale? Was she “preferred” when she was nominated to the Supreme Court? There are currently seven White men on the court—were they not “preferred” all their lives because of their identities?
It is hard to acknowledge that the privilege undergirding the power structure in our society may not be entirely justified, or worse, that it may be based on an unjust set of rules. It is far easier to frame attacks on the status quo distribution of privilege as unfair and preferential. To accept the shallow colorblind fairness argument makes it far too easy to ignore the deeper injustice that we see every day in our society. Ignoring that injustice is not only, itself, unjust, it also delays us from fixing real, systemic problems that affect us all.
Anita Sinha is a Senior Attorney and Daniel Farbman is a legal fellow at Advancement Project, a national policy, communications and legal action group committed to racial justice. To watch a video produced by Advancement Project on the negative rhetoric surrounding Judge Sotomayor’s confirmation, click here. For more information about Advancement Project, go to www.advancementproject.org. You can email the authors at asinha@advancementproject.org and dfarbman@advancementproject.org.
