In more than 70 friend-of-the court briefs filed in Fisher v. University of Texas at Austin, supporters of the university asked the U.S. Supreme Court to protect the school’s ability to take appropriate measures to encourage diversity in its classrooms. The Roberts Court may nonetheless strike down the University of Texas’ nuanced admissions program, which considers race as only one of many factors in its review of student applications. Such a decision would be a huge blow to the victory achieved in Brown v. Board of Education, which affirmed our constitutional mandate to combat racial inequality.
Before Brown, the Court had provided legal cover for Jim Crow by maintaining the fiction that public institutions could be “separate but equal.” Brown’s unanimous decision rejected that fiction. It fostered a national recognition that racial segregation cannot be squared with the Constitution’s promise of equal protection under the law.
In the ensuing struggle to create a truly integrated society, the Supreme Court has not always met the bar it set for itself. Indeed, the Court has repeatedly limited the tools available to government to promote educational diversity. In Milliken v. Bradley, the court reversed a lower court’s desegregation plan for Detroit and its suburbs, despite the U.S. Court of Appeals for the Sixth Circuit’s prescient warning that it would be “opening a way to nullify Brown.” The Court has consistently struck down quotas, such as the effort to allocate a certain number of admissions slots to students of color in Regents of University of California v. Bakke, arguing that government may not apportion resources on the basis of race. But while the promise of Brown has been diluted by these subsequent decisions, the Court has never completely forsaken its fundamental premise: that government may use race-conscious measures to remedy discrimination, promote integration and foster racial diversity in the classroom.
In 2007, however, the Roberts Court struck at the heart of Brown by finding voluntary desegregation plans of public schools in Seattle and two Kentucky counties to be unconstitutional. Both programs aimed to create diverse classrooms in neighborhoods that remain divided by race, ethnicity and class. Chief Justice John Roberts Jr. found the school boards guilty of violating Brown for “classifying” students by race — as if the schools had created racial segregation instead of simply acknowledging the realities of American life.
In Fisher, the Court is revisiting desegregation in higher education, an issue it settled less than a decade ago when it upheld the University of Michigan Law School’s similarly holistic approach to diversity in Grutter v. Bollinger. The University of Texas accepts 85 percent of its students because they are in the top 10 percent of their high school class. To augment this straightforward academic-based admissions program, the school fills the remaining 15 percent of its slots through a holistic review of each application — including the student’s race, family background, work history and how all of those life experiences may have affected him or her.
The University of Texas designed this admissions policy specifically to comply with Supreme Court precedent. If the Roberts Court strikes down this policy, it would be completely inconsistent with Grutter and Bakke. At a moment when cases like Bush v. Gore and Citizens United v. FEC have brought public opinion of the Court to an all-time low, such a decision could reinforce fears that the Roberts Court is blithely ignoring the stability of past judicial decisions in favor of its own agenda.
Opponents of affirmative action tell the Court that policies to uplift historically disadvantaged minorities are no longer needed in a “post-racial” America and that race-conscious policies stand in the way of the progress made since Brown. To be sure, all Americans should be proud of the enormous strides our nation has made since the days of slavery and Jim Crow. But the idea that we are “post-racial” is fiction, not fact.
If we lived in a post-racial America, then white, Latino and black youth would be stopped by the police, arrested and incarcerated in numbers roughly proportionate to their population. If we lived in a post-racial America, banks would treat white and black families with identical incomes and credit history equally – instead of steering minority homeowners into unaffordable subprime loans. And if we lived in a post-racial America, higher education enrollment would reflect the diversity of our nation.
These problems are not created by government classifications, or policies to uplift communities of color. They are symptoms of our continuing struggle to overcome racial divides in a nation founded on slavery and the systemic subordination of people based on the color of their skin. And they will remain intractable so long as our highest court tells us that our Constitution actually prevents our government from participating in an honest conversation about race.
A democratic government in a segregated nation cannot simply pretend to be “color-blind.” Remedying racial disparities is not just permitted by our Constitution. It is our nation’s continuing mandate, written into our Constitution by the post-Civil War enactment of the equal protection clause. And, as Roberts acknowledged in his health care decision, the job of the Supreme Court is not to make policy judgments; it is to decide whether a policy violates our Constitution. Hopefully the Court will keep faith with these principles when it rules on Fisher.•