A Long, Slow Drift From Racial Justice

Editor's note:

This article was published in The New York Times

June 24, 2013

The Supreme Court has again upheld the principles behind race-conscious affirmative action, no small feat for the cause of diversity in higher education. But in framing the issue very technically, it has, wittingly or not, continued its drift away from the ideals it advanced in the civil rights era, beginning with Brown v. Board of Education.

In its decision on Monday, in Fisher v. University of Texas, the court ordered a federal appellate court to take a fresh look — under the demanding standard of “strict scrutiny” — at whether Texas’ public universities were properly using race as one factor (among many) in admitting a diverse student body. The appellate court will have to examine “how the process works in practice,” Justice Anthony M. Kennedy wrote in the decision for the majority.

As a law professor, and as the named defendant in the last two major affirmative action cases decided by the Supreme Court (in my capacity as president of the University of Michigan at the time), in 2003, I breathed a slight sigh of relief on Monday. But I worry that the new ruling will empower lower courts and, no doubt, litigants to challenge benign considerations of race — those that seek to advance legitimate goals of diversity in education — more easily than ever.

The court is as much an educator, a moral instructor, as an interpreter of the fundamental law of the land. In construing the constitutional issues so narrowly, the decision can be read as taking a reluctant, even begrudging, stance toward affirmative action.

Part of this hesitance is, no doubt, a product of judicial compromise. But for ordinary Americans, the linkage between race-conscious college admissions and the larger project of social justice is at risk of being lost amid the minutiae.

In Regents of the University of California v. Bakke, the landmark 1978 case on affirmative action, Justice Lewis F. Powell Jr. ruled that quotas were unconstitutional in any context but permitted colleges to consider race as one factor in admissions — provided that they embraced the policies for educational benefits and not as a remedy for past societal discrimination. While his distinction was understandable, it contributed to an unfortunate uncoupling of affirmative action from its social context. There is a moral and constitutional difference between policies that take into account the realities of America’s troubled racial history, and pernicious forms of discrimination, like the Jim Crow laws.

"The court is as much an educator, a moral instructor, as an interpreter of the fundamental law of the land. In construing the constitutional issues so narrowly, the decision can be read as taking a reluctant, even begrudging, stance toward affirmative action."

The enduring effects of nearly four centuries of racial subjugation and subordination — much of it state-sanctioned — have not vanished even though the United States has a black president. We may hope that Justice Sandra Day O’Connor’s prediction in 2003 that affirmative action would not be necessary in 25 years is true, but the time frame may sadly be too brief, given our fraught history.

In many school districts, racial segregation is as bad as it was before Brown. About 40 percent of black and Hispanic children attend K-12 schools where 10 percent or fewer of their classmates are white. Residential racial segregation remains deeply entrenched. Proposition 209, a voter-sanctioned ban on affirmative action at California’s public universities, led to a sharp decrease in representation of black students at the Berkeley and Los Angeles campuses. While 43 percent of whites have a college degree, 27 and 19 percent of blacks and Hispanics, respectively, hold one.

Despite those disparities, Fisher can be read as setting a high bar for consideration of race in admissions: universities must demonstrate that race or ethnicity has not been the defining feature in an admissions decision; that the use of race is necessary to achieve the educational benefits of diversity; and that there is no “available, workable” race-neutral alternative to achieve such benefits. It will not be impossible for universities, public and private, to meet these requirements, but it may well prove difficult, time-consuming and costly. Lower courts will have to see whether the University of Texas meets the test. The flagship Austin campus admits three-quarters of its students under a program that guarantees admission to the top students in every high school in the state. The rest are admitted under “holistic” criteria — of which race is but one.

The greatest moments of jurisprudence have never been merely dry legal analysis, but have been linked to broader principles — and historical and social realities — from which they derive. One cost of Monday’s ruling may be the failure to renew a conversation about racial justice as the civil-rights era recedes further and further into the past. Strikingly, it was Justice Clarence Thomas who most engaged the vital historical context, writing that “arguments advanced by the University in defense of discrimination are the same as those advanced by the segregationists.” I disagree profoundly with his logic, though I admire his candor.

While a strong majority has affirmed the status quo on affirmative action, for now, advocates of racial justice have much work ahead of us before the next time this issue reaches the high court.