The new term of the Supreme Court is almost certain to be pivotal for two key civil rights doctrines: affirmative action, and federal supervision of election procedures under the Voting Rights Act.
The drama begins Wednesday when the court – minus recused Justice Elena Kagan – hears oral arguments in Fisher v. University of Texas, a challenge to the use of race as a factor in university admissions. A sequel to the 2003 ruling in Grutter v. Bollinger, the Texas dispute may give the court a chance to shorten Justice Sandra Day O’Connor’s prescription in Grutter that affirmative action programs should not be needed longer than 25 more years.
And later in the term, the court is expected to take up the constitutionality of Section 5 of the Voting Rights Act, under which certain jurisdictions in the South and elsewhere must submit changes in their election practices for Justice Department approval to determine if they dilute minority voting power. On this issue as well, the court may weaken what mainstream civil rights groups view as one of the most important tools for promoting racial equality.
In an interview last week, The National Law Journal asked Debo Adegbile, acting president and director-counsel of the NAACP Legal Defense and Educational Fund, about the fateful term ahead. Adegbile, a litigator formerly with Paul, Weiss, Rifkind, Wharton & Garrison, took over after the untimely death in March of predecessor John Payton. Adegbile is in the running for the permanent position and has been suggested as a possible nominee to the U.S. Court of Appeals for the D.C. Circuit. He also has filed a brief in the Fisher case and successfully fought off a similar challenge to the Voting Rights Act in the 2009 case Northwest Austin Municipal Utility District No. 1 v. Holder.
A transcript of the interview, edited for length and clarity, follows.
Question: We are starting a term in which both affirmative action and federal supervision of voting rights are in danger of unraveling. How did we get to this moment?
Adegbile: I think you have to take the long view when you’re a civil rights lawyer and when you read the history of the country. The long view tells us that progress in the area of civil rights is episodic. It’s characterized by ebbs and flows. It’s not uni-directional and it requires vigilance, and LDF is very focused on that reality and prepared to be in the fight. We have seen time and again that important victories remain contested, and periodically you have these moments where they culminate in a new chapter of challenge, and so right now we have a perfect storm, where two things of central importance that speak to what opportunity looks like in America, hang in the balance. The Fisher case is about educational opportunity and the pathways to leadership that the court recognized in the Grutter case, and the Voting Rights Act is really at bottom about the underlying and animating principles of our Constitution: Is everybody a citizen with a full right to participate?
Question: The common thread between both doctrines is that they both have some remedial aspects – enacted to right a past wrong. If they are overturned, will it be because the court thinks those wrongs have been remedied, and the majority of justices think nothing more needs to be done?
Adegbile: First, although both initially grew out of a conception of remedial approaches for racial discrimination and race disadvantage in the United States, affirmative action through the cases has been unmoored from the remedial rationale and substituted instead is the diversity rationale. And so there are very substantial unresolved issues of educational disadvantage in America, but the doctrine in some ways has been disconnected, untethered, from the remedial rationale.
In contrast, the Voting Rights Act is on the Main Street of remedies and congressional power to remedy discrimination in voting, and the record that Congress assembled put the lie to the notion that our progress has taken us past voting discrimination … That was clear in 2006 [when the Voting Rights Act was renewed] to anybody that looked at the record. [D.C. Circuit Judge] David Tatel wrote a very compelling opinion in the Northwest Austin case … and it was clear at that time, looking at the record, that although there was progress, there was also more work to be done.
What has changed since that time, since the Austin case, which was argued on the 100th day of the Obama presidency and as we would later find out would be the last day of David Souter’s tenure on the Court, is that at that moment there was a certain atmospheric of celebration in the idea that a country that had tolerated and permitted the institution of slavery had come such a distance that an African American could serve as president, and that was an atmospheric that caused everybody to ask the question you’ve asked Tony, which is, “Do we still need this?”
The record Congress assembled showed that two things can be happening at once: progress and a continuing strain of unresolved issues. Sometimes it’s easy to over-interpret the progress and to diminish or disregard the continuing racial cleavages that exist in society and in the area of voting in particular.
I mean, that’s the animating concept of Section 5 in particular … that there is persistent and adaptive discrimination – persistent in that it’s run through the decades. Adaptive in that each time you move to remedy it, there is a new means of achieving the same discriminatory end. And so, now this connects perfectly to the point about where we are as the next challenges get to the Court. What we have seen on the other side of Northwest Austin are efforts in many places in the country targeted at shrinking access to the polls.
Question: Those efforts haven’s succeeded very well in lower courts.
Adegbile: That’s right. But they’ve been brazen and so I think that the average American is scratching their head and asking themselves, “Is this the best that our democracy has to offer?” Regardless of who your candidate is, the lesson of the Voting Rights Act is that we demean the Constitution and ourselves when we exclude people from the ballot box … Are we really going to try and win elections by blocking voters rather than encouraging more voters to come out for our candidate? And that is what is different in the conversation that is happening now. The court will have to grapple with this question that Congress’s predictive judgment that we have not moved fully past the history of discrimination is now manifest, and so a decision by a court to declare victory before victory is won would strike a dramatic blow to all the progress.
Question: Do you think the court will do that?
Adegbile: The Court is clearly going to take a [voting rights] case. As we sit here they haven’t taken a follow-on constitutional challenge yet, but the good money is, after reading the Northwest Austin opinion, I won’t sit here and tell you that they will rest on that opinion and not take another case. I don’t think they need to take another case, based on the congressional record as I’ve said, but I think they will take another case. But I think when they take the next case, the rash of democracy-constricting measures may cause the Court to wonder whether it’s time to second guess a well-considered congressional judgment.
Question: So, might this wave of voter ID laws actually help you?
Adegbile: Yes, and it’s not just voter ID. It’s early voting. It’s 3rd party registration. My idea is that multiple tactics to get to the democracy-constraining end are what the historical pattern tells us and shows us. I think that it gives a court that is bound by precedent and knowledgeable about history, pause in taking a dramatic step of striking one of the most important pieces of legislation of any kind – of any kind. People say that the Voting Rights Act is one of the most important pieces of civil rights legislation. I have a different view. I think that the Voting Rights Act is one of the most important pieces of legislation of any kind in the history of the United States of America … It’s a beacon for democracy.
Question: Back to the Fisher case. You said it has come unmoored from the remedial argument, but your brief makes the point that African-American students still face the “crushing burden” of stereotypes and isolation when they have not reached a critical mass in a student body. Can that be turned into an argument that there is still something that needs remedying?
Adegbile: It’s a tricky point because the remedial rationale is the elephant in the room. Everybody understands what the history of educational disadvantage and discrimination has been in this country, and it’s made more so by the fact that here we have the University of Texas, that brought us Sweatt v. Painter, which cleared the land for Brown. There’s an important brief filed by the Sweatt family; it’s a terrific brief. The way I see it is that in 1950, with Sweatt v. Painter, the University of Texas stood for exclusion. In 2012, the University of Texas is lifting up its voice for inclusion.
It shows us that we are on a journey, but there is a parallel to the Voting Rights Act, because we’re clearly not there yet. Nobody who looks at the facts of the levels of educational disadvantage at the University of Texas, in Texas generally, would seriously say that we can achieve diversity if we’re not intentional about it in some way, and what is particularly important in the Texas example is they have a test case. In the period between 1997 and 2004 – under the Hopwood case — Texas tried all these different methods and means of ensuring some measure of diversity. The top 10% plan had an impact, and has an impact, but what we know also is that in that period, the African American admits in the freshman class, or enrollments, never got above 4.5% though the high school graduates were 11, 12, 13%, and that gap tells us something about how fragile the ecosystem of diversity is in higher education, and it was because of that experience, not in spite of it, that Texas decided to add back a Michigan-type component – a modest but appropriate consideration of race in the admissions process.
Question: There has been some talk that mootness might be a way out for the court, because the plaintiff is no longer seeking admission to the University of Texas. Is mootness beginning to look good to you?
Adegbile: So look, anytime you have a case that’s presenting a constitutional question of a core civil rights and diversity aspect of our law, you’d prefer not to be asking that question, as a civil rights lawyer. So there are off-ramps which the court may decide to take. It’s hard to know. They’re there. They’ve been briefed, and they’re available to the court, and sometimes the court, as you know, disposes of cases in unexpected ways.
But if they don’t, the question is, hasn’t Texas, using race in this modest way, really done what colleges and universities were given the ability to do after the Michigan cases? Race is a factor of a factor in the analysis, taken together with many other factors, and one of the questions that we have to ask is that admissions officers, who are engaged in a whole applicant review, to look at the whole person, what are all of the vital things that make up the application of a given high school student or transfer student to the university – are we living in the real world if we say you can consider everything in America today, but we want you to ignore race completely? Strip it from the analysis, even if race is in some way particularly salient to the individual’s identity and experience?
Most students in Texas I believe go to, or certainly too many go to K-12 in racially isolated environments. And so, what’s at stake in this case is college is very often the first opportunity where many students are having to confront differences which are apparent but too often get resolved through stereotype and assumption. Bringing the students together on a college campus allows them to engage their preconceptions and substitute for those preconceptions – experiences – which open up a possibility of a broader view, a broader understanding, and prepare them to go off into the world and lead.
Question: Some briefs also make the point that students are “going off into the world” much more than at the time of Grutter, because of the growth of the global economy.
Adegbile: Exactly. The point I don’t think is lost on anybody. The corporations’ brief says that this consideration is more important today than it was just 9 years ago when we spoke to the Court in Grutter. They say it’s more important. They consider it a business imperative. The pipeline is a business imperative for America to remain competitive.
Question: From the Grutter arguments, it was clear then that the military brief – retired officers stating how important it is to have a diversified officer corps – was very important to the justices. Will the corporate brief be the key this time?
Adegbile: It’s hard to know. It could be the Sweatt brief. We’re essentially engaged in, and I think Justice Kennedy has recognized that our successes don’t delimit our possibilities. Together the outpouring of briefs are different bricks in the foundation of the house. I think that they will be treated with seriousness by the Court.
Question: Would you say you are optimistic? Does the university have a chance of winning?
Adegbile: Yes. I do not count myself among the prognosticators who are declaring the demise of consideration of race in admissions. I do not count myself among that group. I think many of us were surprised that the Court took this case as the very first challenge since Michigan, but I don’t want to over-interpret the grant.
Question: What would victory look like? What is the best you can hope for?
Adegbile: Aside from your mootness? Aside from your ‘go back and find another case’ approach? (Laughter). Well, the best is that the Court looks at the way Texas is actually doing it and determines that ultimately the 5th circuit, which is not a court of appeals that passes lightly over these issues, found that Texas got it right, and that the university is entitled to exercise its good faith in the admissions process, particularly after having tried race neutral approaches to considering race. That’s what Grutter told them to do and I think the opinion from the 5th circuit makes the case that that’s what they did. Now the case was granted, so the Court wants to look the tires over and look under the hood, and I think Texas will do a good job at demonstrating just how carefully calibrated the admissions approach is.
Tony Mauro can be contacted at email@example.com.