Supplementing the university’s brief were submissions by allied defenders of racial affirmative action. In Grutter, amicus curiae briefs from leading figures in the military and business seem to have made an important impression on Justice O’Connor; she cited them conspicuously in her opinion. In Fisher, similar groups voiced the same messages. Former senior officers and civilian leaders of the armed forces (including General Colin L. Powell, General Wesley K. Clark, and Admiral Bobby R. Inman) maintained that “a highly qualified and racially diverse officer corps … is a mission-critical national security interest.”114 They asserted that “race-conscious policies are vital to increasing and maintaining the pool of highly qualified minority military officers.”115 They insisted that “fulfillment of the national security interest in officer corps diversity must not be imperiled by a sweeping ruling against race-conscious admissions.”116
In an amicus curiae brief on behalf of leading businesses, including American Express, Halliburton, and Wal-Mart, lawyers argued that the Supreme Court “should reaffirm … that the conscious pursuit of diversity in the admissions decisions of institutions of higher education … is a compelling state interest.”117 This mattered to these businesses, they said, because “the only means of obtaining a properly qualified group of employees is through diversity in institutions of higher education, which are allowed to recruit and instruct the best qualified minority candidates and create an environment in which all students can meaningfully expand their horizons.”118
The most moving of all the briefs submitted to the Court in Fisher was the “Brief of the Family of Heman Sweatt as Amicus Curiae in Support of Respondents.” It revisited the experience of Heman Marion Sweatt, who had been denied admission to the University of Texas Law School in 1946. The president of the university, Theophilus S. Painter, acknowledged that, except for one consideration, Sweatt was “duly qualified for admission.” Sweatt was qualified, Painter declared, “except for the fact that he is a negro.” Unwilling to admit Sweatt to the state’s premier law school, state officials instead admitted him to a law school for Negroes that the state legislature conjured up virtually overnight. No one registered for any of the three classes offered by the law school for Negroes, and it closed within a week of its opening. Sweatt maintained that the instant makeshift state-sponsored law school to which he had been admitted was inferior to the venerable, influential, state-sponsored law school that had excluded him solely because of animus against his race. This, he charged, violated the “separate but equal” standard of Plessy v. Ferguson and justified an order commanding that he be admitted forthwith to the “white” University of Texas School of Law. State courts ruled against Sweatt, holding (to their eternal shame) that the two law schools were “substantially equal.” The Supreme Court, however, ruled in his favor, noting that the white school was superior in tangible assets—number of faculty, scope of library, size of student body—and, more important, intangible assets: reputation, contacts, experience—features the Court described as “those qualities which are incapable of objective measurement, but which make for greatness in a law school.”119
Sixty-two years later, the daughter and nephews of Heman Sweatt urged the Court to uphold the affirmative action program under attack at UT. Acknowledging that their relative had been commemorated at UT in a variety of ways (a named professorship, symposia, the naming of a part of the campus), the Sweatt family asserted that “it is [the university’s] commitment to creating a genuinely diverse student body—one based on a holistic review of applicants’ unique history and persona, not just their race—that best honors Heman Marion Sweatt.”
More than any other submission to the Court, the Sweatt family brief accentuates what should be a central concern: the unfinished business of rectification. This is a point I made at the outset of this book when I mentioned that my own parents were refugees from the Jim Crow South: segregation is not far away historically. It directly impinged upon the parents of millions of Americans alive today, often diminishing their opportunities. Some, like Heman Sweatt’s daughter, were able to forge ahead and prosper despite racist impediments. But many others found themselves stymied by inherited confinements that are mirrored by the stark patterns of racial disparity that attend every index of well-being and development in American society, including educational attainment.
The Sweatt family brief reminds readers that, forty-five years after Sweatt v. Painter, segregation continued to infect Texas higher education. In 1994, when rejected white applicants challenged affirmative action programs at the University of Texas Law School, a federal trial judge examined in detail the pathology of uncured segregation at every level of public education in Texas, remarking that “the problem of segregated schools is not a relic of the past.”120 Judge Sam Sparks cataloged the long history of segregation in Texas schooling, including egregiously stubborn resistance to desegregation. Judge Sparks noted that, even as he wrestled with the pending challenge to affirmative action at the University of Texas School of Law, there remained a serious question whether, with respect to educational desegregation, Texas had fully and finally complied with federal statutory and constitutional requirements.
In deference to Justice Powell’s opinion in Bakke, Judge Sparks also upheld racial affirmative action at UT for the purpose of attaining diversity. But the need for remediation was the main thrust of his opinion. Discussing the plaintiff’s contention that any racial preferential treatment is unconstitutional, Judge Sparks declared that “such a simplistic application of the Fourteenth Amendment would ignore the long history of pervasive racial discrimination in our society that the Fourteenth Amendment was adopted to remedy and the complexities of achieving the societal goal of overcoming the past effects of that discrimination.”121 Later, Judge Sparks returned to this theme, maintaining that “the reasoning behind affirmative action is simple—because society has a long history of discriminating against minorities, it is not realistic to assume that the removal of barriers can suddenly make minority individuals equal and able to avail themselves of all opportunities.”122 According to Judge Sparks, “until society sufficiently overcomes the effects of its lengthy history of pervasive racism, affirmative action is a necessity.”123 Applying this general idea to the specifics of the University of Texas Law School, Judge Sparks ruled that racial affirmative action, properly designed, was permissible there because “the legacy of the past … has left residual effects that persist into the present.” According to the judge, “those effects include the law school’s lingering reputation in the minority community … as a ‘white’ school.…An affirmative action program is therefore necessary to recruit minority students because of past discrimination.”124
Judge Sparks invalidated the particular affirmative action program that was in place when the Hopwood plaintiffs applied for admission, ruling that it did not suitably follow the directives posited by Justice Powell in Bakke. But he emphatically endorsed appropriately tailored racial affirmative action at the University of Texas Law School, because “overcoming the effects of past discrimination is an important goal for our society.”125
In an opinion written by Judge Jerry E. Smith, the United States Court of Appeals reversed, holding that UT could not use race at all in selecting students. Better known for its repudiation of diversity, the Fifth Circuit in Hopwood also expressly rejected desegregation as a valid basis for the UT affirmative action program.126 It maintained that Judge Sparks’s conception of a remedial predicate for affirmative action was overly expansive. He had pointed to invidious discrimination by public primary and secondary schools and by the University of Texas as a whole. In doing so, the Court of Appeals declared, Judge Sparks had cast his net too widely, addressing historical misconduct that, albeit regrettable, was too far afield from the law school to be a proper basis there for racial affirmative action. The Court of Appeals insisted that the only racial misconduct pertinent to assessing affirmative action at the law school was misconduct by the law school its
elf. The Court of Appeals also rejected Judge Sparks’s conclusion that the effects of the law school’s own past racial discrimination were sufficiently evident to warrant a racially selective remedy. Denying that the law school’s poor reputation among blacks was a vestige of past misconduct warranting affirmative action, the Court of Appeals remarked that “knowledge of historical fact simply cannot justify current racial classifications.…[T]he very enormity of that [historic] tragedy […] lends resolve to the desire to never repeat it, and [to] find a legal order in which distinctions based on race shall have no place.”127
Denying that blacks’ perception of a hostile racial environment was a vestige of segregation warranting a racially selective remedy, the Court of Appeals declared that there had been no showing of action by the university that contributed to any racial tension. Indeed, according to the Court of Appeals, “any racial tension at the law school is most certainly the result of present societal discrimination and, if anything, is contributed to, rather than alleviated by, the overt and prevalent consideration of race in admissions.”128 Finally, denying that the paucity of blacks at the law school was a vestige of past misconduct, the Court of Appeals ruled that, inasmuch as that underrepresentation was mainly attributable to acts or omissions other than those directly chargeable to the law school, there was no basis for a racially selective remedy at the law school. “Past discrimination in education, other than at the law school, cannot justify the present consideration of race in law school admissions.”129
The ruling by the Court of Appeals on the ongoing implications of past racial misconduct by state authorities in Texas has never been reviewed by the Supreme Court. The Supreme Court declined to review Hopwood. Then, seven years later, in the University of Michigan cases, the Court indirectly reversed Hopwood by ruling, in direct contravention to the Fifth Circuit, that Powell’s opinion in Bakke was binding and, therefore, that race could permissibly be taken into account by properly designed affirmative action programs. But the Court never did grapple with the Court of Appeals’ handling of Hopwood as a desegregation case. Fisher offers the Court that possibility insofar as it, like Hopwood, involves the University of Texas Law School. That institution, unlike the previous ones that have helped to generate the Court’s affirmative action jurisprudence, did categorically exclude or discriminate against blacks on a racial basis until the 1950s and beyond. But with the exception of the Sweatt family brief and a few others, advocates in Fisher have avoided the theme of remediation. At the oral argument of Fisher, there was no discussion at all of historical invidious racial discrimination by Texas educational institutions and no allusion whatsoever to Sweatt v. Painter.
The Sweatt family brief usefully demonstrates that for the purpose of adjudicating Fisher rightly, the ordeal of Heman Sweatt is neither ancient nor irrelevant. Yet, for all its virtues, the Sweatt family brief also manifests problems that are pervasive in our race relations law. Although it is, in part, a plea for candor, the brief ultimately joins a discursive mode that evades a full reckoning with our burdensome past. For one thing, there is no hint in the brief that the Supreme Court ruling in Sweatt v. Painter was itself complicit in the baleful racist fiction of segregation. After all, Sweatt did not invalidate racial segregation but merely held that Texas authorities had failed to meet the standard of “separate but equal” and that the Negro complainant was thus entitled to the extraordinary remedy of admission to a “white” institution. Sweatt was surely a step forward for racial justice. But it was a step forward within a legal environment in which the lie of segregation’s innocence still held sway. Recall that when Sweatt was announced, Brown v. Board of Education remained four years in the future.
The Sweatt family brief lionizes the Sweatt decision, declaring,
In Sweatt, this Court first recognized that in higher education, the interplay of ideas and exchange of views among students are critical.…It was in Sweatt—not Bakke—that the Court first found that diversity, including racial diversity, was a compelling component of effective higher education.130
What was most wrong with Heman Sweatt’s exclusion at the University of Texas Law School, however, was not that it deprived him or others of “diversity.” If the alternative law school for Negroes that the Texas authorities created overnight had offered more diversity than the University of Texas Law School, the arrangement would still have been outrageous and intolerable. The key deprivation was not pedagogical but an affront to basic human dignity by dint of an egregious policy based upon and expressive of the notion that blacks are a degraded caste that must be segregated from whites so as to avoid contaminating them.
Although the Sweatt family brief commendably relates Heman Sweatt’s ordeal to the issues posed in Fisher, the brief stays within a framework that remains unduly narrow. It carefully avoids expressly justifying affirmative action on grounds of rectification. Seeking to invoke and replicate Bakke and Grutter, the brief champions “diversity” at every turn. Openly begging for Justice Kennedy’s elusive favor, the brief ultimately accommodates itself to the ascendant currents of race relations law as it pleads with the Supreme Court to refrain from pruning Texas’s admissions regime. I do not begrudge taking that tack to advance a cause. I do believe, though, that some advocates should be willing to voice arguments for reparatory justice, even if such arguments have previously been rejected by a majority of the justices. Things change. The composition of the Supreme Court evolves. Arguments that were once thought implausible become persuasive if backed with sufficient force. Ever since Bakke, the Supreme Court has wrongly rejected the rectification of “societal discrimination” as a basis for racial affirmative action. That is an argument, however, that should be preserved for the sake of future possibilities, notwithstanding current judicial disapproval.
It is widely expected that the Supreme Court will reverse the Court of Appeals ruling that upheld affirmative action at the University of Texas. One possibility is that the Court will use Fisher as an opportunity to relitigate Grutter and overrule it. Grutter was decided by a 5–4 majority. A key member of the majority coalition and the author of the opinion announcing the Court’s judgment was Sandra Day O’Connor, now retired. She was replaced by Justice Samuel Alito, an ideologically hardened, intellectually confident conservative who seems to be hostile to affirmative action. Chief Justice William H. Rehnquist, who died in office, was replaced by Chief Justice John Roberts. But that transition changed nothing. The new chief justice is also an ardent opponent of affirmative action. Justice David Souter, who retired, was replaced by Justice Sonia Sotomayor. But that, too, changed little since both are supportive of affirmative action. Justice Elena Kagan (who replaced Justice John Paul Stevens) would almost certainly have voted, like her predeccesor, to uphold the Court of Appeals. But she recused herself, having taken a position in the litigation supporting the University of Texas as the United States solicitor general prior to her nomination by President Barack Obama. The anti–affirmative action bloc of justices would have to reach a bit to reverse Grutter, but they might well do so, fearing that time is running out, given the Supreme Court vacancies that are likely to open during President Obama’s second term. Apprehensive about what a more liberal Court might do in the future, the conservative bloc could decide to strike now, surrounding future justices with precedents that will take time to erode, evade, or overrule.
Another possibility, more likely in my view, is that the Supreme Court will reverse the Court of Appeals on narrower grounds, ruling that explicitly racial affirmative action at the University of Texas is unnecessary and thus excessive in light of the racial diversity obtained through the Top Ten Percent Plan.
A Supreme Court ruling categorically barring race from admissions decisions—in other words, nationalizing Proposition 209 and Hopwood v. Texas—would have major consequences in higher education, since most colleges and universities have, for decades, relied upon Powellian diversity to guide their efforts to recruit and admit racial minorities who, abs
ent special help, would lose out to better-prepared competitors. Such a ruling would directly affect all public universities. It would also affect most private institutions, inasmuch as their access to federal government funds is statutorily conditioned on their compliance with federal constitutional antidiscrimination standards. The protocols that colleges and universities have honed and relied upon over the past several decades, including the ritualistic, incantatory repetition of the terms “diversity” and “holistic,” would presumably be rethought and reconfigured at considerable expense. Ostensibly “race-neutral” alternatives would likely take the place of explicit racial selectivity at many institutions. This has been the experience of colleges and universities in states in which racial affirmative action has been barred by voter initiatives. Still, as the Fisher litigation shows, there can be significant differences in the distributional effects of explicit racial selectivity versus race-neutral regimes. And there is some likelihood that at certain institutions, the discontinuation of old-style Bakke-Grutter racial selectivity will be superseded by nothing, as opposed to creative alternatives.
The ramifications will be more modest if the Court strikes down the Texas racial affirmative action program on account of the presence of the Top Ten Percent Plan. Officials and students in Texas will be affected, of course. At present, however, there are few if any other public universities that have pursued what officials in Texas have done in terms of layering racial-diversity affirmative action on top of a so-called race-neutral percentage plan.
Race, Affirmative Action, and the Law Page 24
