Resisting Supreme Court anti-discrimination rulings, then and now

After the Supreme Court’s decision in Brown v. Board of Education, the Commonwealth of Virginia adopted a policy of “massive resistance” to school desegregation. The resistance was about finding ways to circumvent the Court’s ruling. It included a law forbidding any integrated schools from receiving state funds and authorizing the governor to close any such school. Virginia also adopted tuition grants to enable students to attend private, segregated schools.

Now, with the Supreme Court possibly on the verge of finding Harvard’s race-based admissions policy unlawful, Larry Tribe seems to be suggesting resistance to such a ruling. Tribe told the Harvard Crimson:

Universities as intelligent as Harvard will find ways of dealing with the decision without radically altering their composition. But they will have to be more subtle than they have been thus far.

In other words, they will have to find new, less obvious ways to discriminate in favor of Blacks and Latinos and against Whites and Asian-Americans.

Tribe’s statement comes in the form of a prediction. On the face of it, he’s predicting that Harvard and other universities will find clever ways to continue discriminating against applicants on the basis of race, whatever the Supreme Court says. That’s hardly a longshot.

Thus, Tribe can say he’s not advising anyone to circumvent, i.e., resist, a Supreme Court ruling. However, I read his statement as encouraging universities to do so.

Is Tribe also sending a message to the Supreme Court? Is he trying to persuade a swing Justice or two that a decision in favor of the Asian-American students will have no real-world impact, and therefore isn’t worth the trouble?

Maybe. But the real message should be that if the Court decides the case in favor of the students, it should issue an opinion that forecloses, or at least sharply limits, the ability of universities like Harvard to resist its ruling that race cannot be a factor in determining which students to admit.

Jurists as intelligent as our Supreme Court Justices can write an opinion that will accomplish this, I think. But it will take a little courage.

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