Abstract

Excerpted From: Wendy B. Scott, The Unfinished Business of Desegregation: Race Conscious College Admissions, 32 William & Mary Bill of Rights Journal 321 (December, 2023) (165 Footnotes) (Full Document)

In Desegregation and the Law, Albert P. Blaustein and Charles Clyde Ferguson, Jr. provided doctrinal, jurisprudential, and historical context for then recently decided, and now seminal Brown v. Board of Education of Topeka opinion. In what Blaustein and Ferguson called “[a] new constitutional standard,” the unanimous Brown opinion announced that “in the field of public education the doctrine of 'separate but equal’ has no place,” and that “[s]eparate educational facilities are inherently unequal.” As predicted by Blaustein and Ferguson, more law was inevitable as new attempts were made both to enforce and circumvent the Supreme Court's desegregation mandates. The authors opined that “the desegregation law of the future will be neither novel nor new; it will be an extension of the principles which have been already established.” Thus, the “new constitutional standard” of equality announced in Brown has borne the weight of rationalizing the “desegregation law of the future” action and diversity. This means that the jurisprudence and history of school desegregation is inextricably linked to race-conscious admissions in higher education. This Article contends that the nexus between specific evidence of past discrimination against African Americans in K-12 and continuing discrimination in access to higher education justifies considering race in college admissions policies.

Until the 6-3 decision in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, diversity constituted a compelling reason to consider race in higher education admission decisions under the Equal Protection and Due Process Clauses. After Fair Admissions, the future of diversity as a compelling interest is bleak. On the other hand, the Court reaffirmed that considerations of race to remedy the proven effects of specific identified past discrimination, remains constitutionally permissible under the Equal Protection and Due Process Clauses. Fair Admissions complicates matters, however, by resting the decision on the principle of color blindness, even though educational institutions at all levels in America continue to grapple with racial homogeny and the effects of past discrimination. And while the late Thurgood Marshall, an author of the appellants' brief in Brown cited by Chief Justice Roberts, used the term “color blind,” he employed the term to defeat color blind constitutionalism in the service of white supremacy, not to foreclose the use of race to remedy discrimination against African Americans. Marshall's later writing explains the difference between his use of the idea of colorblindness from that of Chief Justice Roberts:

[T]he principle that the “Constitution is colorblind” appeared only in the opinion of the lone dissenter [in Plessy v. Ferguson]. The majority of the Court rejected the principle of color blindness, and for the next 60 years, from Plessy to Brown v. Board of Education, ours was a Nation where, by law, [a white] individual could be given “special” treatment based on the color of [their] skin. It is because of a legacy of unequal treatment that we now must permit the institutions of this society to give consideration to race in making decisions about who will hold the positions of influence, affluence, and prestige in America.

Race conscious admissions policies in higher education advance the same goal: To prevent the privilege afforded by whiteness and legacy from blocking the equal treatment of Black applicants. Why are such policies still needed? In the words of Justice Marshall:

[I]t must be remembered that, during most of the past 200 years, the Constitution as interpreted by this Court did not prohibit the most ingenious and pervasive forms of discrimination against the Negro. Now, when a State acts to remedy the effects of that legacy of discrimination, I cannot believe that this same Constitution stands as a barrier.

Marshall goes on to provide the factual and historical evidence to support his conclusion, stating that “it is inconceivable that the Fourteenth Amendment was intended to prohibit all race-conscious relief measures .... Such a result would pervert the intent of the Framers by substituting abstract equality for the genuine equality the Amendment was intended to achieve.”

In line with Justice Marshall and others, Justice Sotomayor rebuked the holding in Fair Admissions, writing, “the Court cements a superficial rule of colorblindness as a constitutional principle in an endemically segregated society where race has always mattered and continues to matter.” Justice Ketanji Brown Jackson expressly rejected the notion of a color-blind Constitution as well, stating, “With let-them-eat-cake obliviousness, today, the majority pulls the ripcord and announces 'colorblindness for all’ by legal fiat. But deeming race irrelevant in law does not make it so in life.”

The majority in Fair Admissions also failed to acknowledge the nexus between K-12 desegregation and its progeny, affirmative action and diversity, declaring “by legal fiat” and with finality that the consideration of race in college admissions is unconstitutional. This rejection of race conscious admissions practices under the Equal Protection Clause of the Fourteenth Amendment by the Court requires a revisit to desegregation jurisprudence and practice to demonstrate why the considerations of race in higher education admissions fulfills the desegregation mandate. Given its rich history and contributions to the formation of equality norms and affirmative action, desegregation jurisprudence and practice provide a foundation for the premise that the use of race in college admissions constitutes a compelling state interest, supported by specific evidence of discrimination, that moves us closer to the democratization of education and racial equality under the Fourteenth Amendment's Equal Protection and Due Process Clauses.

Part I summarizes the jurisprudence of desegregation law in K-12 and higher education. The jurisprudence supports the rationale proffered in Part II for a compelling governmental interest--undergirded by evidence of the present effects of past discrimination in K-12 education traceable to de jure segregation--for considering race as a factor in college admissions.

[. . .]

The strong provable nexus between the continued racial identifiability of K-12 school systems across the country and the corresponding absence of African Americans enrolled in institutions of higher education goes beyond societal discrimination. The evidence justifies the remedial use of race to remedy the effects of the past and present discrimination that has created the nexus. W.R. Brown admonished that, “[n]arrowing the scope of the Equal Protection Clause in school desegregation litigation, which has long held a unique place in constitutional jurisprudence and in the historical struggle to end invidious discrimination, would have a far-reaching impact.” Fair Admissions has embraced a narrow view that even Justice Scalia would question. Rather than honoring the legacy of Brown, Fair Admissions harkens back to the idea in Plessy that racial equality can derive from inequality. Even the idea of color-blind constitutionalism was tainted by the ideology of racial supremacy. The majority opinion in Fair Admissions carries this ideological taint. As long as racial inequality exists in American public schools, we will never achieve racial equality in higher education being blind to color.

Moreover, the world is watching. A recent article reaffirms that:

More than 60 years after the Brown vs. Board of Education sentence, the topic of school segregation not only remains an important area of educational research but has gained momentum in recent decades. Globalization has undoubtedly impacted this renaissance in school segregation studies .... [O]ur conclusion is that the available evidence provides solid grounds for considering school segregation by race, social class and ethnicity as a problem of enormous relevance, which should become a priority on educational policy agendas ... [to create] a shared vision of educational policy radically oriented towards socio-educational equity.

American school systems should participate in the “renaissance” of concern for ensuring racial equality in education on the global stage. Fair Admissions left open the opportunity to do so by recognizing the nexus between K-12 desegregation cases, that remain live constitutional controversies, and the constitutionally permissible use of race in college admissions to finally completing the unfinished business of desegregation.

Professor, Elon University School of Law.