Oct. 28, 2022
As affirmative action prepares to meet its fate before a transformed Supreme Court, after having been deemed constitutional in higher education for more than four decades, the cases to be argued on Monday bring into sharp focus a stunning reality.
After all this time, after the civil rights movement and the many anti-discrimination laws it gave birth to, after the election of the first Black president and the profound racial reckoning of the past few years — perhaps because of all those things — the country is still debating the meaning of Brown v.Board of Education.
A dispute over what the court meant when it declared in 1954 that racial segregation in the public schools violates constitutional equality is not what I expected to find when I picked up the daunting pile of briefs filed in two cases challenging racially conscious admissions practices at Harvard and the University of North Carolina. There are more than 100 briefs, representing the views of hundreds of individual and organizational “friends of the court,” in addition to those filed by the parties themselves.
Both cases were developed by a made-to-order organization called Students for Fair Admissions Inc. The group asks the court in both cases to overturn Grutter v. Bollinger, its 2003 decision upholding affirmative action in student admissions to the University of Michigan’s law school.
Justice Sandra Day O’Connor, writing for the majority in Grutter, said then that society’s interest in maintaining a diverse educational environment was “compelling” and justified keeping affirmative action going, as needed, for the next 25 years. Since that was 19 years ago, I expected to read an argument for why the timetable should be foreshortened or, more broadly, why diversity should no longer be considered the compelling interest the court said it was in 1978 in Regents of the University of California v. Bakke. The court concluded in that case that race could be used as one criterion by universities in their admissions decisions.
Instead, I found this bold assertion on page 47 of the plaintiff’s main brief: “Because Brown is our law, Grutter cannot be.”
Relying on a kind of double bank shot, the argument by Students for Fair Admissions goes like this: The Brown decision interpreted the 14th Amendment’s equal protection guarantee to prohibit racial segregation in public schools. In doing so, it overturned the “separate but equal” doctrine established 58 years earlier in Plessy v. Ferguson. Therefore, the court in Brown necessarily bound itself to Justice John Marshall Harlan’s reference in his dissenting opinion in Plessy to a “colorblind” Constitution.
“Just as Brown overruled Plessy’s deviation from our ‘colorblind’ Constitution, this court should overrule Grutter’s,” the group asserts in its brief. “That decision has no more support in constitutional text or precedent than Plessy.”
Briefs on the universities’ side take vigorous issue with what the University of North Carolina’s brief calls “equal protection revisionism.” Noting that Justice Harlan’s objection to enforced separation of the races was that it imposed a “badge of servitude” on Black citizens, the brief observes that “policies that bring students together bear no such badge.”
Moreover, a brief by the NAACP Legal Defense and Educational Fund Inc., under the auspices of which Thurgood Marshall argued Brown before the Supreme Court, warns that the plaintiff’s position “would transform Brown from an indictment against racial apartheid into a tool that supports racial exclusion.” The “egregious error” in the court’s majority opinion in Plessy, the legal defense fund’s brief explains, was not its failure to embrace a “colorblind” ideal but its “failure to acknowledge the realities and consequences of persistent anti-Black racism in our society.” For that reason, the brief argues, the Grutter decision honored Brown, not Plessy.
“Some level of race-consciousness to ensure equal access to higher education remains critical to realizing the promise of Brown,” the defense fund argues.
Grutter was a 5-to-4 decision. While the court was plainly not at rest on the question of affirmative action, it evidently did not occur to the justices in 2003 to conduct their debate on the ground of which side was most loyal to Brown. Each of the four dissenters — Chief Justice William Rehnquist and Justices Anthony Kennedy, Antonin Scalia and Clarence Thomas — wrote an opinion. None cited Brown; Justice Thomas quoted Justice Harlan’s “our Constitution is colorblind” language from his Plessy dissent in the last paragraph of his 31-page opinion, which was mainly a passionate expression of his view that affirmative action has hurt rather than helped African Americans.
While the contest at the court over Brown’s meaning is new in the context of higher education, it was at the core of the 2007 decision known as Parents Involved, which concerned a limited use of race in K-12 school assignments to prevent integrated schools from becoming segregated again. In his opinion declaring the practice unconstitutional, Chief Justice John Roberts had this to say: “Before Brown, schoolchildren were told where they could and could not go to school based on the color of their skin. The school districts in these cases have not carried the heavy burden of demonstrating that we should allow this once again — even for very different reasons.” In his dissenting opinion, Justice Stephen Breyer called the chief justice’s appropriation of Brown “a cruel distortion of history.”
The invocation of a supposedly race-neutral 14th Amendment — as the former Reagan administration attorney general Edwin Meese III phrased it in his brief against the universities — goes to the very meaning of equal protection. That was clear earlier this month in the argument in the court’s important Voting Rights Act case in the new term.
Alabama is appealing a decision requiring it to draw a second congressional district with a Black majority. Alabama’s solicitor general, Edmund LaCour, denounced the decision as imposing a racial gerrymander that he said placed the Voting Rights Act “at war with itself and with the Constitution.” “The Fourteenth Amendment is a prohibition on discriminatory state action,” he told the justices. “It is not an obligation to engage in affirmative discrimination in favor of some groups vis-à-vis others.”
The newest member of the court, Justice Ketanji Brown Jackson, pushed back strongly with an opposite account of the 14th Amendment’s origins. “I don’t think that the historical record establishes that the founders believed that race neutrality or race blindness was required,” she said. “The entire point of the amendment was to secure the rights of the freed former slaves.”
It is no coincidence that challenges to the constitutionality of both affirmative action and the Voting Rights Act appear on the court’s calendar in a single term. The conjunction reflects the accurate perception that the current court is open to fundamental re-examination of both. Indeed, decisions going back to the 1980s have held that in setting government policy, race cannot be a “predominant” consideration. But whether because the votes haven’t been there or from some institutional humility no longer in evidence, the court always stopped short of proceeding to the next question: whether the Constitution permits the consideration of race at all.
That question, always lurking in the background, is now front and center. Not too long ago, it would have been scarcely thinkable that if and when the court took that step, it would do so in the name of Brown v. Board of Education. But if the last term taught us anything, it’s that the gap between the unthinkable and the real is very short, and shrinking fast.
Ms. Greenhouse, the recipient of a 1998 Pulitzer Prize, reported on the Supreme Court for The Times from 1978 to 2008 and was a contributing Opinion writer from 2009 to 2021.