The Supreme Court’s Students for Fair Admissions, Inc. v. President and Fellows of Harvard College struck down affirmative action programs at both Harvard and the University of North Carolina in the name of the “color-blind” Constitution. Perhaps it would be better to describe the Court’s Orwellian fantasy doctrine as “color oblivious.”
The decision should have surprised no one and it well-telegraphed not just from
its recent decisions chipping away at racial considerations when it came to
college admissions, but perhaps from the very start of when the Supreme ever
looked at the issue of affirmative action.
The
very first class I taught (co-taught) in college was a course entitled “Justice
and Affirmative Action.” It was a long time ago. I have
spent a life time and career thinking about race and affirmative action. What
has always struck me is the unease Americans have when it comes to race.
W.E.B. DuBois once proclaimed that the problem of color-line would be the
problem of the twentieth century. Yet the Supreme Court’s affirmative
action jurisprudence has never really embraced it or understood the reality of
American politics both historically and today. Whether it was its
1857 Dred Scott v. Sanford which
ruled that slaves were property and not persons, or the 1896 Plessy v. Ferguson declaring
separate but equal as an acceptable constitutional doctrine, the Court has more
often than not failed to look beyond formal legal doctrines and see the reality
of race in America.
The reality is of an American society that remains racist. Our
constitution was born of slavery and race. We fought a Civil War and a civil
rights movement over it. Yet the badges of slavery persist in
all of our institutions including criminal justice, housing and
education. Affirmative action was never meant to be the sole tool to
abate race, but instead one of several. It recognized that there was a
difference between the use of race for discriminatory as opposed to remedial
reasons and that it was an illusion to say that simply passing law making
discrimination illegal would make it disappear.
Affirmative action at the college admissions level recognized the failures of
our society in confronting race. Perhaps, just perhaps if we truly had
integrated and quality schools for all and all students were free to pursue
their excellence, affirmative action at the college level would not be
necessary. But we do not live in that world. We do not in part because of
the Court’s own decisions such as San Antonio Independent School District
v. Rodriguez declaring that there is no constitutional right to education and
that discrimination based on wealth is not illegal, or Keyes v.
School District No. 1, Denver where the Court imposed limits on cross-district
integration and thereby accelerated suburban white flight. Both cases
were from 1973—undermining civil rights and equal educational opportunities
almost from the start.
The 1978 Bakke v. University of California was the
Court’s first college affirmative action case. It struck down the racial
quota system in place, ruling that race could only be one of several
factors when making admission decisions. The Court also declared
that the only constitutional justification for racial considerations was to
promote diversity in the classroom. Yet Bakke ignored the fact that there
was a small cluster of special admission’s slots given to the dean, presumably
offered as legacy slots or for rich donors.
Consistently the Court has ignored the privileged position of legacy admissions
at Harvard and other schools. It has ignored the way rich donors can buy
admissions for their children, as we say in the stories from a few years ago
where individuals such as actress Lori Loughlin paid $500,000 to buy admission
for her daughters. to USC. The Court seems oblivious to how
some private, prep, and boarding schools give some applicants a special
advantage to get into elite schools such as Harvard and Yale. Such schools, one
might note, that have produced the majority of Supreme Court Justices.
The Court in Bakke accepted the argument that racial considerations to help
people of color were a form of racial discrimination. That
assumption prevailed in all of the Court’s college affirmative action cases, as
well as in its decisions, especially under the Rehnquist and then Roberts
Courts, when it came to employment and redistricting. Somehow just
declare the Constitution and the law racially neutral or blind and it
will go away.
Twenty years ago in Grutter v. Bollinger the Court signaled
its impatience with affirmative action when Justice O’Connor declared that she
hoped in twenty-five years affirmative action would no longer be necessary. In
the Fair Admissions, Inc case decided on June 29, the patience ended. In
part because Harvard and UNC could not say when they would no longer need to
consider race to overcome discrimination, that is why the Court had to end it.
In effect, despite the fact that the Court in its decision discussed the
history of race in America it was simply time to end it because it
discriminated against white Caucasians (such as those individuals who brought
the case) and because it just had to come to an end.
The Supreme Court could have taken a different road in this case. It could have
declared that the group bringing the case had no standing to sue because it had
not suffered harm. The Court could have said the Harvard plan was
discriminatory toward Asian-Americans and ordered them to fix it without
striking down all considerations of race. But by the time we got to this
case the Court had already gone down the wrong path. It ignored how its
own decisions have contributed to racial discrimination and the unequal
educational opportunities and how they have undermined societal
institutions to address racism. In effect, the color obliviousness of Fair Admissions, Inc. v. President
and Fellows of Harvard College was a long time
coming.
