Supreme Court narrowly frames racial justice in Harvard and University of North Carolina oral argument

Oral argument - five hours long on Halloween - in the University of North Carolina and Harvard College affirmative action cases demonstrated how narrow is the universe of discourse imposed by the Supreme Court. The debate turned on educational diversity - the issue identified by Justice William Powell in Bakke v. Regents of the University of California.  438 U.S. 265, 313 (1978) (opinion of Powell, J.)  That concurring opinion  allowed affirmative action to survive. And it framed the argument yesterday.

Forty five years  after Bakke, fifty eight years after the Civil Rights Act of 1964 ended one hundred years of open legal racial segregation that history - the reason for affirmative action - was absent from the discussion.  Nor was the vaunted theory of "originalism" anywhere on display - except for the observations of the inevitable dissenters: the Supreme Court's three women - a Jew, a Puerto Rican, and an African American.

Nor did anyone acknowledge the brief of historians which powerfully argued that the post Civil War Amendments aimed at racial equality, not neutrality:

the Reconstruction Congress’s contemporaneous enactments show its comfort with using race conscious measures for ameliorative purposes. It is implausible that the same Congress that adopted the Freedmen’s Bureau Act, the 1866 Civil Rights, and the Fourteenth Amendment would have “intended the [Fourteenth] [A]mendment to forbid the adoption of such remedies [like the Freedmen’s Bureau Act programs] by itself or the states.” Schnapper, supra, at 785. Indeed, “[n]o member of Congress hinted at any inconsistency between the [F]ourteenth [A]mendment and the Freedmen’s Bureau Act”— rather, both supporters and opponents of Reconstruction efforts discussed the Amendment and the Act in the same breath and treated them as substantively aligned.

The post Civil War Amendments - 13, 14, and 15 each provides that Congress may "enforce" the rights declared by "appropriate" measures. But on that simple phrase the Supreme Court has encrusted layers of complication.  Scrutiny may be rational basis (ordinary regulatory review), intermediate,  (commercial speech) or somehow enhanced (women as in the VMI case), or strict.  The latter - described by Justice Blackmun as strict in name, fatal in fact, demands that the government interest be "compelling" and its remedy "narrowly drawn".  That confined yesterday's argument to "educational diversity".  Actions to reduce the historic legacy of slavery and Jim Crow were considered impermissible. 

The United States Department of Justice recognized the narrow ground on which the battle must be fought in the high court:

This Court has held that the Equal Protection Clause and Title VI of the Civil Rights Act of 1964, 42 U.S.C. 2000d et seq., do not prohibit limited consideration of race by colleges and universities in their admissions processes if such consideration is narrowly tailored to advance the compelling interest in the educational benefits that flow from “student body diversity.” Grutter v. Bollinger, 539 U.S. 306, 325 (2003). 

But one advocate did find a way out of the impasse - Solicitor General Elizabeth Prelogar.  The Department of Justice's amicus brief - which she presented, argued powerfully from the need for diverse leadership sought by the nation's service academies.  The DOJ argued there:

The United States military depends on a well qualified and diverse officer corps that is prepared to lead a diverse fighting force The United States Armed Forces have long recognized that the Nation’s military strength and readiness depend on a pipeline of officers who are both highly qualified and racially diverse—and who have been educated in diverse environments that prepare them to lead increasingly diverse forces.

But to my ear the majority of the members of the Supreme Court are wedded to a formalistic, not contextual application of the law.  They insist on a "color blind" Constitution - a  reading which turns upside down the meaning of the phrase in Justice John Marshall Harlan's great dissent in Plessy v. Ferguson - the 1896 case in which the Supreme Court contemptuously wrote:

We consider the underlying fallacy of the plaintiff's argument to consist in the assumption that the enforced separation of the two races stamps the colored race with a badge of inferiority. If this be so, it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it. 

That would remain the law of the United States, on which was built the system of racially separate schools, buses, trains, movie theatres, and water fountains until the death knell sounded by Brown v. Board of Education of Topeka, Kansas, et al. in 1954. 

As a product of the 1974 Rutgers Constitutional Litigation Clinic  I looked up the Rutgers friend of the court brief in Bakke v. Regents.  Authored by two of my teachers - Richard Chused and Annamay Sheppard, I was impressed by their dramatic conclusion: 

Race-blind professional school admissions systems 'will be constitutionally appropriate when we have obeyed fully the command of the Thirteenth Amendment.

 

But if the Fourteenth Amendment, adopted in aid of the Thirteenth, is now utilized as an insurmountable barrier to the achievement of equal status for minorities we will once again have betrayed the central mission of the Reconstruction Amendments. The decision  of the California Supreme Court should be reversed. 

- GWC November 1, 2022