Affirmative action revisited

Linda Brown was the young girl who gave her name to the four cases consolidated for consideration in Brown v. Board of Education, the 1954 Supreme Court case that effectively invalidated the regime of public school segregation. She died in 2018 at the age of 75 or 76. Neil Genzlinger’s New York Times obituary recounted her story.

Genzlinger dealt inadequately with the Brown case. “In its ruling,” he wrote, “the Supreme Court threw out the prevailing ‘separate but equal’ doctrine, which had allowed racial segregation in the schools as long as students of all races were afforded equal facilities.” The “separate but equal” doctrine had been announced by the Supreme Court in Plessy v. Ferguson (1896). Genzlinger implied that the Brown case killed it.

Would that it were so, but it’s not. The Court ruled that separate educational facilities were inherently unequal, but left the “separate but equal” doctrine undisturbed. This is an important point and deserves care in the telling.

The principle of equal treatment without regard to race had in fact been advocated by Thurgood Marshall and the NAACP in the rationale of colorblindness (“It is [our] thesis…[that] the Fourteenth Amendment prevents states from according differential treatment to American children on the basis of their color or race…that the Constitution is colorblind is our dedicated belief”). This is the argument the NAACP expressly urged in the Brown case. The Court, however, failed to adopt it.

Andrew Kull provides a history of the Supreme Court’s treatment of the principle in The Color-Blind Constitution (1992). Kull devotes two chapters to the “separate but equal” doctrine set forth in the holding of Plessy.

The Plessy case represents the bygone era of Jim Crow that Linda Brown helped to transform, yet at the outset of his discussion of the case Professor Kull accurately observes: “The majority opinion in Plessy makes a comfortable target, and it is routinely vilified. But in its broad holding, as opposed to its particular application, Plessy has never been overruled, even by implication. On the contrary, it announced what has remained ever since the stated view of a majority of the Supreme Court as to the constitutionality of laws that classify by race.”

The principle of equal treatment without regard to race was adopted as the law of the land in the great civil rights legislation of 1964 and 1965, or so we foolishly thought at the time. It may even have been the law for a minute or two. Then the federal government began building the whole edifice of affirmative action and racial preferences that we live with today and that has been addressed by the Supreme Court in a number of important cases. Certainly insofar as higher education is concerned, the affirmative action regime and the treatment of students based on the color of their skin are entrenched more deeply than ever under the shibboleth of “diversity.”

One of the lessons of Kull’s great book is that the Court wants to retain for the judiciary the discretion and authority to approve varieties of racial discrimination. Linda Brown and her case to the contrary notwithstanding, the ideal of the colorblind Constitution remains permanently on the horizon.

It is difficult to capture the absurdity of the affirmative action regime that is operative in higher education with the blessing of the Supreme Court. On the same day that the Court held the University of Michigan’s racial sorting illegal in the Gratz case involving undergraduate admissions, it approved the University of Michigan Law School’s program achieving the identical result in the Grutter case without the racial grids.

The two cases present the same issue in different form. In substance, they were the same case. The Court opted for the disingenuous version of affirmative action. The Court’s decisions in Fisher v. University of Texas in 2013 (“Fisher I“) and 2016 (“Fisher II“) are the most recent footnotes to these cases. (The link is to the Court’s disappointing decision in Fisher II, yet another illustration of Kull’s thesis.)

Can the Supreme Court overcome the absurdity it has wrought? It can, but only a fool would be confident that it will. We can be slightly more confident that the Court will confront it one more time in the Harvard and UNC cases it has now agreed to hear. Some day, perhaps, Kull’s book will require an update, but the time has not come today.

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