Expanding upon an article (discussed here) that became available online last week, the Chronicle of Higher Education reports today on the expanding campaign of the Center for Equal Opportunity, The American Civil Rights Institute, and the National Association of Scholars against college and university programs that exclude students on the basis of race. (Link requires subscription)
Most of these programs are summer institutes or fellowships that are limited to members of selected minority groups. In these programs race is not a Bakke-sanctified “plus factor” or “one of many factors” that colleges say they consider when they go about applying different standards to different racial and ethnic groups. It is the only factor. Nevertheless, these programs are vehemently defended, in some cases as though they were mandated by God.
Saint Louis University issued a statement that said administrators there are confident that its scholarship program for black students complies with the law. But the February 13 edition of the St. Louis Post-Dispatch quoted Harold Deuser, the university’s director of financial aid, as saying that the university has been aware for 10 years that the scholarships probably could not pass legal muster, but kept them anyway because they are consistent with the university’s “Catholic Jesuit mission and with the Jesuit tenet of social justice.”
I seem to recall a number of people I grew up with in Alabama arguing that their favored racial customs were also divinely inspired.
I also recall the bitter resistance in the South to the demand of Brown v. Board of Education that segregation in schools — and by implication and later statute, elsewhere — be abandoned. Indeed, this “massive resistance” — and the legal challenge of every jot and tittle of every effort to end segregation — was one of the most shameful episodes in American history. But there, the actual, specific command of Brown was not altogether clear. Did it require actual integration, and hence busing and perhaps even prohibition racially separate housing patterns, or “merely” the end of enforced segregation? Put in more familiar terms, did it require the state to cease “taking race into account,” or to continue taking it into account to promote racial proportionality? We’re still sorting that out.
But there is no similar ambiguity today. Title VI of the Civil Rights Act of 1964 outlawed the very sorts of programs colleges are now defending with language that is as clear and unambiguous as it is possible for language can be. No “equal protection” fuzziness there. Its main command says:
No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.
What part of this can the general counsels at our leading colleges and universities not understand? Maybe the standards of our law schools have been lowered far more over the past generation than even the most extreme critics of preferences maintain.
Their rationale, of course, goes back to that Great Loophole that is Bakke. Most of the discussion of Bakke lately has concerned its acceptance of awarding race a “plus factor” (in close cases only, of course) in order to promote “diversity.” But that’s not all the damage it did. After reading racial “plus factors” into the 14th Amendment, it went on to say that Title VI, quoted above, didn’t really mean what it said. All it really barred, said Justice Powell for the Court, was, well, whatever the 14th Amendment barred. Funny, I haven’t heard any liberals complaining about this example of judicial activism.
Lino Graglia, a law professor at the University of Texas who has been trenchantly criticizing race preferences since at least 1970 (“Special Admission of the ‘Culturally Deprived’ to Law School,” 119 U. Pa. L. Rev. 351), has just suggested, also in the Chronicle of Higher Education, that a good solution the Court could choose in the Michigan cases is, unlike Bakke, to rely on Congress’s intent as clearly expressed in Title VI. (Link requires subscription)
The easy and correct disposition of the Michigan cases, therefore, would be a decision holding that Title VI prohibits the challenged admissions policies. That would, in effect, return the issue to Congress — where it ultimately belongs.
Four out of nine justices took just that position in 1978 in Regents of the University of California v. Bakke. With one more vote, the race-preference issue in higher education would have been settled then. But five justices, unwilling to disallow all race preferences in higher education, contended that Title VI, despite its clear terms, prohibits only race discrimination that is also prohibited by the Constitution. Four of those justices maintained, in essence, that the Constitution does not prohibit discrimination that is disadvantageous to white students as severely as discrimination that is disadvantageous to black students.
The fifth justice, Lewis F. Powell Jr., insisted that both were prohibited equally but that the race of applicants could nonetheless be considered, when necessary, to create a diverse student body for educational purposes. Race, he said, along with many other factors — for example, being of Italian descent — could be taken into account as a “plus” to “tip the balance” in making admissions decisions between competing applicants.
Graglia’s recommendation to the Court is also worth quoting:
It’s unlikely that the Supreme Court will affirm Michigan’s race-preference programs on the basis of Bakke. Because the court now holds that all official racial discrimination is subject to strict scrutiny, it would, first, have to agree with Powell that educational diversity is a “compelling interest” sufficient to justify race discrimination and unattainable without the use of race — which is doubtful. It would then have to overlook the fact that the programs do not resemble the one Powell hypothetically approved. The court would, therefore, have to contradict Powell by holding that an institution may use race as a controlling factor to achieve some minimal racial percentage in an entering class.
If, however, the Supreme Court rules against the universities’ policies on the basis of Title VI, it will be faithful to the clear purpose of the law. Perhaps even more important, it will effectively return the issue to Congress, which could then either accept the decision by doing nothing or overrule it by amending Title VI to explicitly exempt certain racial preferences.
To do so, Congress would presumably have to specify the nature, extent, and purpose of the exempted preferences. That would make the operation of race-preference programs open and above board — unlike now, when the amount of preferences, for example, is never willingly stated. The constitutional question would no doubt still eventually reach the Supreme Court, but in a significantly different context.
Graglia’s fear is that the Court will not do this but instead will split 4-4 on the merits of race preference, leaving the final outcome up to the current Powell, Justice O’Connor.
If so, and if she fudges the way Powell did, this matter would continue to percolate through our politics and the courts for another generation or two.
You left out Graglia’s throwaway line in that article that Brown was a big “stretch” from the 14th Amendment. After that, I tended to dismiss the rest of his argument. (I realize that doesn’t invalidate it, just that whatever its merits, I don’t feel he’ll persuade me.)
Andrew – I suspect there is a consensus — or if not, at least a very widespread view — among law profs (even lefties) that Brown was a very poorly reasoned opinion … that reached the right result. That’s my view, and I strongly suspect it’s Graglia’s as well.
P.S. – One more thought on the above: if you (and others) think that John Marshall Harlan was right in Plessy and that the 14th Amend. means that “our Constitution is colorblind,” i.e., that Brown was not a stretch from the 14th, then by definition you also believe that the 14th bars racial preferences. Graglia, being I think a strict originalist, probably would not agree with this. One of the many problems of Brown is that it avoided confronting that question. It didn’t even formally, or rather doctrinally, overrule Plessy, instead holding that legally required “separate” could not be “equal.” In my view, anyone defending racial preferences must agree with the doctrinal holding of Plessy that the 14th does not require colorblind neutrality.
I don’t think liberal law professors are nearly so dismissive of the logic of Brown as they are of Roe. (Example) I think there’s some feeling that the social science studies that were adduced in evidence (Clark) were naive, and we could design them better now. But all the evidence in the world was out there about the harmful effects of Jim Crow, and there were 30 years of increasingly firm decisions enforcing the “equal” clause which the Southern states evaded to the maximum extent. (The late flurry of spending on Negro schools right before Brown is reminiscent of the policy to arm slaves to fight for the South, one month before Appammatox.) School segregation was just one brick, a keystone, in an edifice that was manifestly unequal, and whose very purpose was the perpetuation of inequality.
Anyway, I’d be curious if you have a list of “liberals” other than Bickel who’ve soured on Brown.
I’d even take a moment to compare this anti-Brown reasoning with attempts ro rehabilitate the legal arguments in favor of teaching so-called Scientific Creationism in public schools. As you know, “Scientific” Creationism is a carefully-redacted version of a brain-dead reading of the Genesis Creation story from which explicit references to the Deity have been removed in an attempt to sneak into public schools. (The Creationists issue parallel textbooks with their authentic beliefs in the series for private religious school use.) Now, there’s nothing in a plain reading of the First Amendment that says you can’t teach the Earth is 6000 years old and was drastically shaped by a scientifically-impossible global flood. But when you add in historically contingent data the fact that Scientific Creationism is a religious dogma becomes clear. If it weren’t for Genesis and a particular reading of it, no one would ever have dreamed up Scientific Creationism in the first place. (Two federal courts threw out Creationist curricula.)
What does this have to do with Brown? I think you can reach the conclusion that the Court’s reasoning was weak (as opposed to a little sloppy on the social science) only by, similarly, stripping out all of the historical data. And I think that’s what Graglia proposes to do: “originalism” not as a way of reading a text (leave aside problems with Epimenides’ Liars Paradox here), but as a way of rolling back the clock. I don’t think we take that attitude in civil law and I don’t think it’s compatible with the reasonable doubt standard for criminal convictions, either. Our sense of “reasonable doubt” is dependent not just on fingerprint reliability or data like that, but on how we judge the parties’ motives, how plausible we find their excuses, and so on. The Graglia reading of the Jim Crow record seems sterile, and unhelpful.
Andrew – I’ll leave creationism for another day. Re Brown, it would actually be quite easy to compose a list of law profs who are critical of its reasoning, but I don’t have time right now. For starters, you might look at a book Jack Balkin of Yale edited in 2001 called WHAT BROWN v. BOARD OF EDUCATION SHOULD HAVE SAID.
I took Professor Graglia
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