What's next for diversity?
As appeared in the New York Amsterdam News -- Opinion Page
July 12, 2007
For those of us who worked over so
many years to reach the Supreme Court and affirm the constitutionality of
affirmative action in higher education, which occurred in 2003 in Grutter v. Bollinger, this is the moment
we have been dreading. The recent 5-4 decision limiting voluntary segregation
programs in our nation’s public schools represents an inversion of the historic
Brown v. Board of Education decision’s clarion call for racial equality in
education. And it is all too easy to understand how societal efforts to achieve
racial integration, including through affirmative action in higher education,
are now in serious jeopardy.
To be sure, Justice Kennedy in his
concurring opinion stopped the majority short of slamming the door on
race-based diversity in our schools; and even the Chief Justice tried to
explain why the use of race in law school admissions is different.
Specifically, the Court said it was tolerable to consider race as one of
several factors in Grutter because individual applicants were evaluated in a
“holistic” way and because “the expansive freedoms of speech and thought
associated with the university environment” – and fostered by diversity –
“occupy a special niche in our constitutional tradition.
Yet anyone reading between the lines
of the majority opinion could feel the Chief Justice straining to explain
Grutter’s constitutionality before making the point he really wanted to make:
Grutter is a weak precedent with “expressly articulated key limitations” and
that “the lower courts” have “largely disregarded” this “in extending Grutter”
beyond “the unique context of higher education.”
It is important that we read the
narrowness of this interpretation of Grutter alongside the sweeping rhetoric
that Chief Justice Roberts really wants this holding to signify: “The way to
stop discrimination on the basis of race is to stop discriminating on the basis
of race.” This is the language anti-affirmative action advocates and a host of
others will seize on. In this way, the methodical process Thurgood Marshall and
others followed to achieve the Brown revolution will be used by the Roberts
Court to undo it.
The difference is that the Brown
decision brought the law down to earth, where it could finally see that
separate school facilities were, as a matter of fact and experience,
“inherently unequal.” The Seattle and Louisville decision removes the law to
its formalistic and disconnected position of a century ago, where as empty
rhetoric, it imagines an America that never way – and because of it, may never
be.
In doing so, it obscures the larger
debate about race in this country. Stripped bare, however, these school
decisions are not about precedent, they are about broad philosophical
differences about the role of public institutions in dealing with issues of
race in America. Undergirding them is the feeling that Justice Scalia has made
explicit, that society is tired of mending centuries of slavery and Jim Crow
segregation, and that it is now up to those who have been discriminated against
to “make it” on their own, as other groups have. For them, to consider race
even for the noble end of integration does more harm than good by inflaming
racial tensions.
These arguments make many Americans
uncomfortable, and so they avoid them. I say let them be put on the table and
debated, not hidden beneath phony “interpretations” of Brown. How should we
respond to the fact that cities are more segregated today than they were a half
century ago, or that the unemployment rates among African Americans in our
inner cities is a multiple of the national number?
The problem for the chief Justice is
that wishing Brown stood only for the simpler proposition of “stopping
discrimination” does not make it so. From the very beginning, Brown impelled us
to take affirmative steps to achieve racial justice. And it is absurd to think
the Court that decided Brown would have struck down these local school
districts’ efforts to carry out that mission. Yet this is precisely the result
the Roberts Court wants us to take at face value. It is up to us to confront
them on this and to insist that if they are going to take this new turn in our
basic law, they must state their real reasons for it. Otherwise, the Court will
continue pretending that its rulings are consistent with the Brown line of
cases – and thus devoted to “conservative” principles – until there is nothing
left of Brown. If that is not the epitome of “judicial activism,” what is?
I often wonder what the unanimous
Brown Court would think of a country fifty-three years later that has proven
itself too impatient to achieve racial justice after centuries of being too
slow to recognize it. Perhaps knowing painfully the legacy of invidious
discrimination they were seeking to overturn, they actually would not be
surprised by this most recent turn of events. After all, every half century or
so, the nation seems to back away from solving the problems of racial
injustice, only to recommit itself to the cause when the pot is about to boil
over. From the beginning of the Constitution to Dred Scott; from the Civil War
and emancipation to Plessy; from Brown to today – we always seem to be better
at articulating our ideals than delivering on them.
But it doesn’t have to be this way.
One of the things I learned in leading the litigation in the affirmative action
cases was that dealing with issues of race is not something that people in the
mainstream of American life want to talk about, but with the proper leadership,
they will.
For example, while we were
eventually praised for enlisting the support of forty of the Fortune 500
largest US corporations and from leaders in the military, it was exceedingly
difficult to get those advocates to sign on to the cause of affirmative action
in higher education. Like many of our political leaders, they were convinced
that a majority of Americans would oppose them, and pointed to Prop 209 in
California for proof. It was only after the late President Gerald Ford agreed
to stand with us that things began to change. “I don’t want future college
students to suffer the cultural and social impoverishment that afflicted my
generation,” he wrote in the New York Times. That is what inspired General
Motors to sign on – only then were we “in business.”
I fear this latest Court decision
represents the first act and scene of a national tragedy of withdrawal from
Brown and Grutter’s promise of a more inclusive America – a perilous shift in
the direction of constitutional law from the last half century. But the scenes
that follow are still ours to write – if only we have the courage and will to
take up the pen. As President Ford said, "If history has taught us
anything… it is the notion of America as a work in progress.”
Columbia
University President Lee C. Bollinger, a former dean of the law school and
president of the University of Michigan, was the named defendant in the twin
Supreme Court cases – Gratz v. Bollinger and Grutter v. Bollinger (2003) –
which respectively affirmed and clarified diversity as a compelling
justification for affirmative action.
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