For the last six years, I, like many others, have dedicated a good part of my life to defending the fundamental principle at stake in the two so-called affirmative action cases -- Gratz/Grutter v. Bollinger -- now awaiting decision in the Supreme Court. When I attended the oral arguments in April, it had been 30 years since I had visited the courtroom to observe a case. In 1973, after graduating from Columbia Law School, I served as a law clerk to Chief Justice Warren Burger. It never occurred to me then that I might return one day to witness a case bearing my name or that the principle fate would bring my way was one I or anyone else would be called upon to defend in that chamber.
Brown v. Board of Education (in 1954) was a defining case for America, especially for law students of my generation. Personally, I have never experienced systematic discrimination. I've been treated unfairly, like everyone else, but these have been discrete and occasional events, not persistent occurrences. The Civil Rights era that followed Brown made apparent to everyone, and especially to people like me, that many in society live with day-in-day-out discrimination. By 1973 we were entering (to borrow a phrase from one of Columbia's great professors, Lionel Trilling) the middle of the journey from Brown. It was dawning on society that the matter of race in America could not be addressed simply by declaring an end to legally mandated separation and discrimination. More was required and education was one key element of a larger solution.
The policies throughout higher education now at issue in the court were created during this period. They withstood constitutional assault in the Bakke decision in 1978. I have been reliably told that Justice Lewis Powell, a son of Virginia whose life was marked by the opportunities we all wish for our children, was proudest of his seminal opinion in that case, an opinion which permitted higher education to consider race as one of many criteria in order to compose an integrated student body for educational purposes.
Somehow in the last decade or so a significant part of this world view was -- temporarily -- lost. A perspective arose that understands the world as basically level and fair for everyone, that seeks to be evaluated against the single standard of individual entitlement with little room for considering what's good for society, and that seeks a completely novel and unprecedented constitutional norm of "colorblindness." How this happened is a story worth telling, but on another occasion. In 1996 this view, however, scored a huge legal victory in the Hopwood litigation against the University of Texas Law School. Later that year, it gained seemingly irreversible momentum in the California referendum known as Proposition 209, amending the state constitution to forbid the use of race as a factor for admission to public universities.
When the lawsuits were filed against Michigan, this was the emerging legal and political landscape. I must say that one of the most heartening events in my lifetime has been the continuing and evident evocative power of Brown and its progeny and the fact that so many of the leaders in our national community have not lost sight of the challenges we face -- from President Gerald Ford to General Motors, Steelcase, Microsoft, and vast numbers of U.S. corporations; from labor to religious leaders; and from virtually all of higher education to distinguished military leaders and institutions. From the moment we decided to stand firm, the support across the society swelled until it has become apparent to all just how much the country has accomplished since Brown.
It would be foolish to predict the outcome next week. Yet, I find it difficult to imagine a historic change of course at this point. If the court upholds the basic principle of allowing our colleges and universities to continue -- as they have for decades -- to bring many different kinds of students together in order to enhance everyone's capacity to cross sensibilities and to help create a better citizenry, we must not pause to celebrate. So much remains to be done.
We in higher education must do a better job of reaping more of the educational benefits we claim for diversity. The society must do more to reduce if not eliminate the inequities of our K-12 system, and universities can do more to help. And we must recognize a hard reality: With present and future appointments to the judicial branch, with such determined foes to affirmative action who I predict will not relent in the face of a defeat, and with cautious legal counsel warning university presidents of the risks and burdens of defending lawsuits (which, I can testify, are extraordinary), we properly should worry that a victory here and now will be pyrrhic.
In the cycles visible in American history, few stand out more dramatically than the ebbing and flowing of our commitments to dealing with the injustices -- and the potential richness -- of racial differences. From the incorporation of slavery into our fundamental laws at the moment of national conception, to the bloody crushing of slavery in the Civil War, to the upholding of Jim Crow laws in Plessy v. Ferguson, to the emphatic rejection of "separate but equal" in Brown, to today, the nation has labored mightily and retreated wearily. I have to say it feels like one of those decisive moments right now.