Monday, September 26, 2022

The Supreme Court and Race: A Sordid History is About to Repeat Itself

 By Eric Segall

The Supreme Court’s new term starts a week from today with several scary cases on its docket. Among them are two affirmative action cases. It is more than likely that the Court will issue a decision prohibiting both public universities and private ones that receive federal funds from using race in any way in their admissions processes. And, once again, the Court will stand directly in the way of racial progress.

In 1857, the Supreme Court stopped Congress from prohibiting slavery in the territories despite express constitutional text granting Congress the power to make all “rules and regulations” for those territories. In 1883, the Supreme Court prevented Congress from prohibiting racial discrimination in places of public accommodations such as hotels and restaurants despite Section 5 of the 14th Amendment, which gives Congress the power to enforce the equal protection clause. But in 1896, when Louisiana required separate (and obviously unequal) seating compartments for Blacks and Whites on railroads, the Supreme Court said yes, ushering in generations of segregation in public schools and government and private facilities.

Even when the Court finally ordered public schools desegregated in 1954 in Brown v. Board of Education, the Justices failed to enforce that decision. Ten years later in twelve Southern states, approximately 98% of schoolchildren attended completely segregated schools. Only when Congress passed the Civil Rights Act of 1964 did segregation under law begin to wither.

In part due to the Court’s horrific record on racial issues, we remain a country where institutional racism still runs rampant. To address these racial inequities, universities across America employ limited racial criteria to admit diverse classes of students to help Black Americans and other people of color overcome our racist past and expose young White Americans to a hopefully less racist future.

This term the Supreme Court will decide in two cases whether the 14th Amendment prohibits the use of all racial criteria in admissions by public universities and whether an important federal statute prohibits all use of race by private universities which accept federal grants (most colleges and universities). Both cases are brought by a non-profit organization long committed to ending all affirmative action in the United States. In one suit the group alleges that Harvard University discriminates against Asian Americans. The trial court in a detailed 130 page opinion, however, rejected that argument and the court of appeals agreed. Under existing legal rules, the Supreme Court can only reverse that finding if it finds it clearly erroneous.

Even if the Court were to make such a finding, however, the Court could limit its holding to the facts of the Harvard case and not end all affirmative action. But don't hold your breath for such a limited ruling.

In the other case, the organization sued the University of North Carolina for discriminating against whites (the real purpose of the Harvard suit as well). The University today is almost 60% white and only 8% black. The argument that the Constitution bars this major Southern university from trying to improve those numbers through the limited use of racial criteria in its admissions process is just as mind-numbing as the racist Court decisions of the past.

The Court should not second-guess university decisions to use racial classifications to address our racist past and present. As Justice Stevens once said, there is a significant constitutional difference between a welcome mat and a no trespassing sign. Our country put up no trespassing signs for people of color for most of our history. For example, in 1950 no flagship university in the former Confederacy admitted Black students. Today, most colleges and universities are still overwhelmingly white, and it is highly unlikely that these metaphorical welcome mats will turn into no trespassing signs for whites anytime in the future.

There is quite simply an enormous difference between using race to keep out all people of color and using race to ameliorate the present effects of past racism. To equate the two is absurd.

The 14th Amendment to the Constitution was enacted in 1868 in large part to guarantee that the persons only recently freed from enslavement would receive equal treatment under the law. The Court betrayed that effort in the cases mentioned earlier and many others. If the Justices truly believe that originalism is the dominant and preferred method of constitutional interpretation, as they said last term, then, as many scholars have argued, there is no warrant to use that Amendment to overturn the use of affirmative action to try and design a less racist future for America.

The Justices should review racial preferences designed to further educational diversity and lessen institutional racism for general reasonableness and not overturn them unless they are irrational. And there is nothing irrational about the desire to give people of color more opportunities and make university classrooms more diverse.

Judicial interference with university admissions programs voluntarily designed by mostly white administrators to redress the long-term effects of centuries of racial discrimination amounts to unnecessary and dangerous judicial hubris. This is the same type of hubris that the Supreme Court has exercised in cases involving race for over 160 years. And despite all the compelling arguments against judicial second guessing of affirmative action, it is much more likely than not that the Court will once again stand directly in the way of racial progress in the United States, and a sorry history will repeat itself yet again.