The Supreme Court and Racial Equality: Guest Post by Eric Segall

Editor's Note: The following post is by (and reflects the views of) Professor Eric J. Segall of Georgia State University College of Law.  Professor Segall is the author of, among other things, the recent book Supreme Myths: Why the Supreme Court is not a Court and its Justices are not Judges. 

       The media attention on the Supreme Court has diminished significantly since June when the Court issued its opinion in the Affordable Care Act case. In the first half of 2013, however, the Supreme Court will have the opportunity in two potentially landmark cases to either further the cause of racial equality or set it back over fifty years.  The stakes of these cases for this country’s racial problems cannot be overstated. If history is any guide, however, the Court is likely to reject efforts by elected and politically accountable governmental officials to further the cause of racial progress.

       Mostly because of the Court’s decision in Brown v. Board of Education, most people believe that the Court often acts to protect minority groups.  In fact the exact opposite is true.  In the 19th century, the Court stopped Congress from ending slavery in the territories in the infamous Dred Scott case, and also overturned an 1875 federal law that would have prohibited racial discrimination in hotels, restaurants, and theaters. The latter decision tragically enabled centuries of Jim Crow and combined with the Court’s affirmation of the separate but equal doctrine led to generations of racial inequality.

       More recently, and not long after the Court decided Brown in 1954, the Court relieved states of all legal obligations to cure public school segregation caused by housing patterns resulting in our schools still being largely segregated by race today.  Those patterns were caused in large part by intentional governmental policies backing mortgages in white neighborhoods but not black or mixed race communities. The Court simply ignored the fact that our schools were segregated largely due to official governmental policies over many decades.

       The Court has also made affirmative action more difficult, refused to end literacy tests in the early 1960’s that were disenfranchising blacks,  and blocked efforts of several states to redistrict in ways to send more people of color to Congress.  Many more examples of the Court rejecting progressive efforts by elected leaders could be provided. The Court has also expressly rejected any notion that public education, public housing, or a minimum standard of living is a fundamental right.  In short, except for a few years during the 1960’s, the Court has far more often sided with the rich and powerful than the poor and downtrodden.

       This term the Court is hearing two cases where elected officials are trying to put a dent in racial inequality. In an affirmative action case out of Texas, the Court will decide how or maybe even whether colleges and universities can use race as one of many factors to build diverse student bodies. In a case out of Alabama, the Court will decide whether Congress has the power to require states with long histories of racial discrimination to pre-clear changes in election procedures with either a special federal court or the United States Department of Justice.  In both cases, the Court should step aside and let elected governmental officials try to assist people of color. Based on its history, however, the Court is likely to reject these efforts by policy makers to try and sustain our momentum towards a more racially equal society.

      The 15th Amendment prohibits racial discrimination in voting.  In the 1950’s and early 1960’s, many states, mostly though not all in the South, not only used literacy tests to deter blacks from voting but also physically harassed and intimidated them at the polls so that voting for African-Americans became a challenging enterprise. The Court was unwilling to prevent such abuses so Congress passed the Voting Rights Act of 1964 requiring some states, and some districts within states, to seek permission from federal authorities before making changes to election procedures (most of which tended to disenfranchise blacks and other minorities).  In 2006, Congress, believing that there was more work to be done to eliminate racial discrimination in voting, reauthorized the Voting Rights Act with overwhelming majorities in both Houses.

       Although some progress has been made, and yes we have elected a black President, there are still serious obstacles to people of color achieving equality in the voting booth. Voter ID laws, changes to early voting procedures, and other rules designed to limit the ability of minorities to vote were prevalent during the 2012 election.  Several lower courts used the Voting Rights Act to strike down efforts by republicans to make it much more difficult for people of color to vote. There is unfortunately a long way to go before we have a color blind election system.

       But even if one thinks we have reached voting equality at the polls between people of color and whites, the Fifteenth Amendment specifically provides that it is Congress that has the “power” to enforce that Amendment.  Congress can repeal the Voting Rights Act at any time. If the people of the United States feel the Voting Rights Act is a bad idea or no longer needed, they can vote in members of Congress who can repeal it.  Absent irrational or unreasonable Congressional enforcement of the 15th Amendment, the Court should allow the political process to work out the proper balance between state authority and voting equality when it comes to how we best eliminate barriers to equality. After all, the 15th Amendment is both a grant of authority to Congress and a limitation on state practices. It is not a grant of power to the Supreme Court to second guess efforts to achieve racial progress.

       The Court will also decide this term whether the University of Texas can use race in its admissions procedures. The plaintiff who was rejected from the University of Texas claims that such a procedure violates her rights under the Equal Protection Clause of the 14th Amendment which prohibits states from denying people the equal protection of the law.  Texas does not use explicit racial quotas or minority set asides but rather employs race on a limited basis to admit what it thinks is the best possible class. Texas also uses athletic ability, legacy admissions (which obviously favor whites), and intangible factors such as leadership potential to fill its class (most of which comes from a rule giving all high school students in the top 10% of their class automatic admission). Texas no more uses “race-based” admissions then it uses “athletic based” admissions. It simply takes race into account along with other criteria it deems important. Thousands of colleges and universities across the country employ similar admissions guidelines. A broad Court decision prohibiting Texas’ efforts to improve the diversity of its freshman class would have huge repercussions for colleges and universities across the country.

       The 14th Amendment, like the 15th Amendment, gives Congress the power to “enforce” its provisions. If Congress believes racial preferences by university officials violate the equal protection clause, it could deprive schools of federal funding if they employ such preferences. In fact, there is already a federal law that prohibits discrimination on the basis of race at schools that receive federal funding but that law has not been used by any Administration, republican or democrat, to prohibit affirmative action. The Court should not step in to take action that the federal government has refused to take.

       The original purposes of the 14th and 15th Amendments were to make sure that the newly freed slaves could vote and would be treated equally when they entered civil society not to deprive government officials of race-based tools to further equality. As late as 2006, members of Congress believed voting equality was still a major national problem and most colleges and universities think racial preferences are needed to build diverse classrooms. Voters can alter these conclusions at any time as they have done in a number of states where affirmative action is forbidden by state law (an appellate decision to the contrary out of Michigan is unlikely to be affirmed on appeal). The Constitution does not and should not limit how whites can improve racial equality for people of color and neither should the Supreme Court.  Tragically, the Court has rarely acted according to that principle and is again unlikely to do so in 2013. This misreading of the Constitution and abuse of judicial power should not be ignored by this country’s media.