III. In the Court's Race-conscious Affirmative Action Jurisprudence, Whiteness Is the Privilege That Dares Not Speak its Name.

The point of recounting the role that the slave economy played in the founding of our elite colleges and universities, the extent to which the best and brightest minds from these institutions provided intellectual cover for American racial segregation, and the fact that racialized discipline policies in public education now serve as invisible third-generation instruments of white privilege is to highlight the moral artificiality - not to say intellectual dishonesty - of constitutional analysis of race-conscious affirmative action programs without a frank discussion of white privilege. Yet, perhaps the most insurmountable obstacle to that sort of intellectually honest discussion is, with all due respect, this Court's own reluctance - not to say, unwillingness - to acknowledge plainly, and without equivocation, the reality that the nation's continuing struggle with providing fair and equal access for Blacks in higher education is not simply due to the lack of college preparedness on the part of Blacks, or due to what is often quaintly referred to as the Black-White achievement gap, but also due to a strand of white privilege that is woven into the very DNA of our higher education system and that cannot be erased by pronouncing that “the way to stop discrimination on the basis of race is to stop discrimination of the basis of race.” Parents Involved in Cmty. Schs. v. Seattle Sch. Dist. No. 1, 551 U.S. 701, 748 (2007).

So, it is more than a little remarkable that, in over two centuries, this Court has decided thirteen cases where the central issue presumably concerned equal opportunities for Blacks in higher education, and in not a single one of these cases has a majority of the Court discussed the intersection between higher education and white supremacy, white superiority, and white privilege. Seven of the Court's decisions - Berea College v. Kentucky, FN107 Missouri ex rel Gaines v. Canada, FN108 Sipuel v. Bd. of Regents of Univ. of Okla., FN109 Sweatt v. Painter, FN110 McLaurin v. Oklahoma State Regents, FN111 Fisher v. Hurst, FN112 and United States v. Fordice, FN113 - grappled with the legitimacy and legacy of racial segregation. The remaining six - Defunis v. Odegaard, FN114 Regents of Univ. of California v. Bakke, FN115 Grutter v. Bollinger, FN116 Gratz v. Bollinger, FN117 Fisher v. Univ. of Texas at Austin, FN118 and Schuette v. Coal. to Def. Affirmative Action FN119 - have directly and indirectly confronted race-conscious affirmative action admission policies at public institutions of higher education. Some, like Berea College, matter only as a sort of historical relic. Others, like Gaines, Sipuel, Sweatt, Hurst, and McLaurin, stand as stark reminders of the Court's fitful attempts over nearly half a century to disguise the doctrine of separate but equal as something other than a moral abomination. But, as for the remaining decisions on race-conscious affirmative action, the Court has insisted time and time again that the single most important lesson to be derived from the American experience with slavery and Jim Crow is that race itself, as opposed to white supremacy, is such a corrosive concept that any and all of its uses should be subject to strict scrutiny.


A. The Court's Silence Regarding the Effects of White Privilege on Higher Education is Part of a Deeper Reluctance to Acknowledge the Legacy or Presence of Racism.


To borrow language from Justice Thomas, on issues of white supremacy and white privilege, the Court's “silence in this case is deafening.” Grutter v. Bollinger, 539 U.S. 306, 371 (2003) (Thomas, C. dissenting). Despite hundreds of years of discriminatory laws, “racism” was not mentioned in a Supreme Court decision until a 1944 concurring opinion delivered by Justice Frank Murphy in Steele v. Louisville & Nashville Railroad Company. FN120 323 U.S. 192, 208 (1944) (Murphy, F. concurring) (“Racism is far too virulent today to permit the slightest refusal, in the light of a Constitution that abhors it, to expose and condemn it wherever it appears in the course of a statutory interpretation.”). Justice Murphy used the term “racism” again in his dissent in Korematsu v. United States and his concurrence in Ex parte Endo, released on the very same day. FN121 Korematsu v. United States, 323 U.S. 214, 233 (1944) (Murphy, F. dissenting) (“Such exclusion goes over ‘the very brink of constitutional power’ and falls into the ugly abyss of racism.”); Ex parte Endo, 323 U.S. 283, 307 (1944) (Murphy, F. concurring) ([D]etention in Relocation Centers of persons of Japanese ancestry regardless of loyalty is not only unauthorized by Congress or the Executive but is another example of the unconstitutional resort to racism inherent in the entire evacuation program.”).

For years “racism” only appeared in dissenting and concurring opinions. FN122 The word “racism” was not used in a majority opinion until 1992 in Georgia v. McCollum. FN123 505 U.S. 42, 58 (1992) (“We have, accordingly, held that there should be a mechanism for removing those on the venire whom the defendant has specific reason to believe would be incapable of confronting and suppressing their racism.”).

In 1967, Loving v. Virginia marked the first and only time that the Supreme Court of the United States struck down legislation because it was enacted to support white supremacy. 388 U.S. 1 (1967). FN124 Similarly, the Court has only used the term “white privilege” once in a footnote. Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 551 U.S. 701, 782 n.30 (2007) (describing white privilege as “an invisible package of unearned assets which I can count on cashing in each day, but about which I was meant to remain oblivious.”).


B. In Contrast to Its Reluctance to Acknowledge the Concept of White Privilege, the Court has been Far More Open to Discuss, Whether in Approbation or Condemnation, the Notion of Black Inferiority.


Both the notion of Black and white as biologically distinct categories, as well as the identification of the Black race as being of a lower order were in great part the creation of the legal system. FN125 The earliest cases involving questions of race were heard in state courts that, in many instances, had to determine the petitioner's race, which in itself determined the person's status. See Brom and Bett v. Ashley, (Mass. 1781); Hudgins v. Wright, 11 Va. 134 (1806); Vaughan v. Phebe, 8 Tenn. (Mart. & Yer.) 5, 5 (1827). In Hudgins v. Wright, the Virginia Supreme Court heard arguments of a petitioner challenging her enslavement based on her mother's status as a Native American. The court held for the petitioner on the basis that Native American slavery ended in Virginia in 1691. See Wright, 11 Va. at 139. In defining each party's burden, the court stated “[w]here white persons, or native American Indians, or their descendants in the maternal line, are claimed as slaves, the onus probandi [or burden] lies on the claimant; but it is otherwise with respect to native Africans and their descendants, who have been and are now held as slaves.” Id. In Vaughan v. Phebe, the Tennessee Supreme Court of Errors and Appeals, heard the case of a petitioner who claimed that she was wrongly held in slavery because her greatgrandmother was a Native American woman. 8 Tenn. (Mart. & Yer.) at 5. The court held for the petitioner and based its decision on the record that her maternal aunt had previously brought a successful [freedom] case which relied on the same information. FN126

Over time, this Court heard some of these same “freedom suits.” FN127 In “Negro” John Davis v. Wood, 14 U.S. 6, 4 (1816), this Court dealt with very similar facts as those of Hudgins and Vaughan. However, unlike Hudgins and Vaughan, in an opinion delivered by Chief Justice John Marshall, the Court held that: “[e]vidence by hearsay and general reputation is admissible only as to pedigree, but not to establish the freedom of the petitioner's ancestor, and thence to deduce his or her own.” Id. at 8. In the coming years, the Court would buttress its support of “the idea of ‘negros' as a degraded race [helping] justify the anomaly of chattel slavery in a republic that was otherwise devoted to liberty.” FN128 Thus, in 1856, with its opinion in Dred Scott v. Sanford, 60 U.S. 393 (1856), the Court expressly shifted an entire race of people into the non- human category. FN129 In ruling upon Dred Scott's claim for freedom, Chief Justice Roger Taney phrased the question before the Court as “Can a negro, whose ancestors were imported into this country, and sold as slaves, become [a citizen under] the Constitution of the United States, [be] entitled to all the rights, and privileges … guarantied by that instrument to the citizen?” Dred Scott, 60 U.S. at 403. The Court answered that:

[A]s beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations; and so far inferior, [the Black race] had no rights which the white man was bound to respect; and that the negro might justly and lawfully be reduced to slavery for his benefit. Id. at 407.

So ingrained was this notion of Black inferiority that even while condemning the majority's separate but equal doctrine in Plessy v. Ferguson, 163 U.S. 537, 538 (1896), Justice Harlan pointed out that “[t]he white race deems itself to be the dominant race in this country. And so it is, in prestige, in achievements, in education, in wealth, and in power. So, I doubt not, it will continue to be for all time, if it remains true to its great heritage, and holds fast to the principles of constitutional liberty.” Id.


C. The Court's Colorblindness, Merit, and Innocence Rhetoric Both Renders Invisible and Perpetuates White Privilege.


In the place of an honest assessment of the legacy of white privilege in higher education, the Court has, time and time again, reiterated the notion that the United States Constitution requires - and American society should aspire to - colorblindness. This notion of colorblindness emerged even before the end of the Civil War as a means of opposing any attempt to provide for the education and welfare of newly emancipated slaves and, as such, was always more of an idée fixe than a defensible moral philosophy. Between 1863 and 1868, Congress took up a series of social welfare legislation, generally termed the Freedmen's Bureau Act and mostly designed to ease assimilation of newly freed slaves into American society. FN130 In the course of congressional debates over these pieces of legislation, and long before Justice Harlan would declare in Plessy v. Ferguson that “our Constitution is color-blind, and neither knows nor tolerates classes among citizens,” FN131 there developed a basic narrative of colorblindness that race-conscious remedies are per se unconstitutional; that they only serve to confer benefits upon a special class of citizens; that they are better apportioned on the basis of social class rather than race; that they inevitably breed dependency in Blacks and resentment in whites; that they create the impression that Blacks are unable to succeed through their own hard work; and that, once adopted, these remedies risk extending into perpetuity. Not much has changed in the intervening 150 years. The narrative of colorblindness has remained remarkably consistent, as has the seemingly sincere belief on the part of some that it is, or ought to be, the answer to every race question, the solution to every race problem, and the cure to every race conflict.

The harm in failing to acknowledge the effects of years of policies that have promoted white supremacy, white superiority, and white privilege is aggravated by the Court's assessment of race-conscious remedies through the prism of so-called merit-based admissions and white innocence. FN132 Merit-based admission considerations are far from objective. Scholars who defend merit-based admissions assume merit is “neutral, impersonal, and somehow developed outside the economy of social power.” FN133 In Justice Thomas's Grutter dissent, he revealed the myth of meritocracy when he explained that “[t]he rallying cry that in the absence of racial discrimination in admissions there would be a true meritocracy ignores the fact that the entire process is poisoned by numerous exceptions to ‘merit.’ ” Grutter v. Bollinger, 539 U.S. 306, 367-68 (2003).

Legacy status, for example, is considered in the admissions policies of many institutions of higher education. Research has shown that the benefit of having legacy status as an applicant is the equivalent of a 47-160 point increase on the SAT. FN134 Because of the history of discrimination at institutions of higher education, it is rare for Black students to have adequate representation in the legacy applicant pool. FN135 Thus, in effect, legacy status becomes an “educational grandfather clause” benefitting white applicants at a higher rate by allowing racially discriminatory policies that were long ago deemed unconstitutional to continue to influence future enrollment. FN136

Moreover, the Court's seeming acquiescence to the notion of white plaintiffs as innocent victims of race-conscious remedies has resulted in a narrative that finds victimhood in the privileged and villainy in the oppressed. For example, in Regents of Univ. of Cal. v. Bakke, this Court stated that it was inequitable to force “innocent persons … to bear the burdens of redressing grievances not of their making.” 438 U.S. 265, 298 (1978) (emphasis added). The Court further explained that race conscious policies should be “subject to continuing oversight to assure that it will work the least harm possible to other innocent persons competing for the benefit.” Id. at 308 (emphasis added). By using the language of innocence, the Court has created an unusual dynamic where white persons are assumed to belong in institutions of higher education while Black persons are assumed undeserving of the same opportunity. At least three other examples illustrate this point. In Wygant v. Jackson Bd. of Educ, this Court held that a clause protecting minority teachers from layoffs in a collective bargaining agreement between the Board of Education and the teachers union was unconstitutional. 476 U.S. 267, 283 (1986). The Court emphasized that, while racial discrimination exists in this country, “as the basis for imposing discriminatory legal remedies that work against innocent people, societal discrimination is insufficient and over expansive.” Id. at 281 (emphasis added). In Grutter, the majority quoted Justice Powell in explaining that narrowly tailored race conscious policies “are subject to continuing oversight to assure that it will work the least harm possible to… innocent persons competing for the benefit.” 539 U.S. at 341. Even Justice Blackmun's defense of affirmative action policies necessarily included a word about the innocence of those whom the policies affect in explaining that “[h]istory is irrefutable, even though one might sympathize with those who - though possibly innocent in themselves - benefit from the wrongs of past decades.” City of Richmond v. J.A. Croson Co., 488 U.S. 469, 561 (1989) (Blackmun, H., dissenting) (emphasis added). In Parents Involved in Community Schools v. Seattle School Dist. No. 1, a case in which the district's school assignment program was deemed unconstitutional, Justice Thomas explained that “[a]lthough presently observed racial imbalance might result from past de jure segregation, racial imbalance can also result from any number of innocent private decisions, including voluntary housing choices.” Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 551 U.S. 701, 750 (2007) (emphasis added).