There is a longstanding tradition in the Court's “race” jurisprudence of the Court speaking what it believes are hard truths to civil rights plaintiffs. Less than twenty years after the end of the Civil War, Justice Bradley, writing for the majority in The Civil Rights Cases, 109 U.S. 3, 25 (1883), lectured Black plaintiffs who had been denied access to public accommodations not to rely upon the federal government to vindicate their civil rights because “[w]hen a man has emerged from slavery …, there must be some stage in the progress of his elevation when he takes the rank of a mere citizen, and ceases to be the special favorite of the laws …” Similarly, in the days of Jim Crow, when an armed mob of white men nearly lynched a group of Black applicants at a whites-only sawmill, in Hodges v. United States, 203 U.S. 1, 9-10 (1906), the Court found it illegitimate for Congress to make the attempted lynching a federal crime because at the close of the Civil War the nation granted Blacks citizenship “doubtless believing that thereby in the long run their best interests would be subserved, they taking their chances with other citizens in the states where they should make their homes.” More recently, in upholding race-conscious remedies for the sake of student body diversity, Justice O'Connor, writing for the majority in Grutter v. Bollinger, 539 U.S. 306, 343 (2006), believed it necessary to warn that “we expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.”

In the same spirit, Amicus curiae respectfully submit that no determination of the constitutionality of race conscious affirmative remedies can take place without facing the hard truth that white privilege remains an indelible strand of higher education. “We are capable of bearing a great burden, once we discover that the burden is reality and arrive where reality is.” FN137 If race be the great American burden we must bear, the hard reality this Court needs at long last to face is white privilege.