Lyle Denniston, the National Constitution Center's constitutional literacy adviser, looks at cases working their way through the lower courts about affirmative action and what they could indicate about societal views of the "race question."
THE STATEMENT AT ISSUE:
“The Supreme Court’s decisions holding that there is a compelling government interest in using race as a factor in [college] admissions decisions in pursuit of ‘diversity’ should be overruled. Those decisions were wrongly decided at the time they were issued and they remain wrong today….Given what is occurring at Harvard and at other schools, the proper response is the outright prohibition of racial preferences in university admissions – period….Harvard and other academic institutions cannot and should not be trusted with the awesome and historically dangerous tool of racial classification.”
– Excerpts from a lawsuit filed on November 14 in federal court in Boston, arguing that Harvard University is using a freshman admissions program that discriminates on the basis of race, primarily against Asian-American applicants. A similar lawsuit was filed the same day against the University of North Carolina, in a federal court in Winston-Salem, claiming discrimination against African-American applicants.
WE CHECKED THE CONSTITUTION, AND…
Americans have been preoccupied – at times obsessed – with the issue of race at least since the days of the Founding generation, and probably before then. Recall what Thomas Jefferson said about slavery: “We have the wolf by the ear, and we can neither hold him, nor safely let him go. Justice is in one scale, and self-preservation in the other.”
Race was very much on the minds of those who wrote the Constitution at the Philadelphia Convention. Indeed, there would have been no Constitution, historians have concluded, if the Founders had not compromised to allow the Southern states to continue importing slaves for another 20 years, given them added population and thus added membership in Congress by counting each slave as three-fifths of a person, and guaranteed them that any runaway slaves would be returned to the owner.
Those very provisions led Supreme Court Justice Thurgood Marshall to argue, in an article in 1987, that the original Constitution should not be celebrated on its 200th anniversary because it had blatantly embraced slavery.
The annals of Supreme Court history are notable for the landmarks that have kept “the race question” a dominant issue for Americans. Until near the mid-point of the 20th Century, the Supreme Court regularly dealt with “the race question” in ways that continued the harsh cultural understandings of the original Constitution: Prigg v. Pennsylvania in 1842, upholding the federal law that implemented the Constitution’s fugitive slave clause; Dred Scott v. Sandford in 1857, denying Congress the power to ban slavery in the territories and declaring that slaves were property not human beings with rights; the Civil Rights Cases in 1883, reading the post-Civil War amendments narrowing and nullifying the first major federal civil rights law; Plessy v. Ferguson in 1896, upholding racial segregation in public schools.
That trend would continue until the Supreme Court, in the 1938 case of United States v. Carolene Products, set the stage for a modern civil rights revolution by suggesting that the Supreme Court would be ready to take steps to ensure rights for “discrete and insular minorities,” long the victims of discrimination. The revolution, of course, would bring Brown v. Board of Education in 1954, ending racial segregation in public schools, and University of California Regents v. Bakke in 1978, launching the movement toward “affirmative action” – government measures using race not to continue discrimination but to overcome the lingering effects of past discrimination.
Since then, the use of race as a factor in making education policy, at all levels, has become the dominant focus of “the race question.” That gained more attention than that given to racial factors even in the workplace and certainly more than in handing out government contracts.
Perhaps inevitably, there would be a backlash, such as a claim of “reverse discrimination” against whites, claiming that they had lost out to minorities benefitting from “affirmative action” in various programs. In 1996, in the first significant test of voter sentiment on “affirmative action,” California’s voters approved “Proposition 209” flatly barring the use of race in public education and in government jobs and contracting.
In the early 21st Century, the Supreme Court itself would begin to have misgivings. Chief Justice John G. Roberts, Jr., would reflect this repeatedly, in pithy comments he wrote in various cases. In a 2005 ruling barring public school districts from voluntarily adopting a race-based school assignment plan, he wrote: “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” The next year, in a election redistricting case, he would declare: “It is a sordid business, this divvying us up by race.”
In a succession of other decisions, the court has narrowed significantly the reach of the 1965 Voting Rights Act, changed it approach to college admissions to make it more difficult for public universities to use race as a factor in that process, upheld a Michigan voter-approved ban on any use of race in college admissions (similar to California’s Proposition 209), and allowed states to impose increasing requirements for citizens to qualify to vote – rejecting, in each of those scenarios, the claim that its action would have a strongly negative impact on racial minorities.
It is fair to assume that, even without conducting any public opinion polling on its own, the Supreme Court in recent years has been reflecting what seems clearly to be a rising unease – at least in some sectors of the population -- with “the race question.” There could be no clearer example of this than two new lawsuits, filed by an organization formed explicitly to challenge all uses of race in college admissions, against Harvard University and the University of North Carolina at Chapel Hill, with more such lawsuits promised in coming weeks.
The lawsuits were drafted for the group, Students for Fair Admissions, with the explicit aim of getting a case ultimately to the Supreme Court with a direct plea to overrule the Bakke decision that has stood as such a powerful symbol of “affirmative action,” and later precedents on race-based policies. It is time, those new lawsuits explicitly argue, to stop “racial preferences” altogether, proclaiming it a constitutional failure.
It may take two years, at least, for those cases to work their way through the lower courts, which themselves would have no authority to overturn Supreme Court precedents. But, by the time they do reach the Supreme Court, the lawsuits’ sponsors clearly hope, there may be a receptive majority among the Justices to end the “affirmative action” experiment after a four-decade run.
