SCOTUS Affirmative Action Cases Hinge on History of Brown and the 14th Amendment

As affirmative action prepares to meet its fate before a transformed Supreme Court, after having been deemed constitutional in higher education for more than four decades, the cases to be argued on Monday bring into sharp focus a stunning reality.

After all this time, after the civil rights movement and the many anti-discrimination laws it gave birth to, after the election of the first Black president and the profound racial reckoning of the past few years — perhaps because of all those things — the country is still debating the meaning of Brown v. Board of Education.

A dispute over what the court meant when it declared in 1954 that racial segregation in the public schools violates constitutional equality is not what I expected to find when I picked up the daunting pile of briefs filed in two cases challenging racially conscious admissions practices at Harvard and the University of North Carolina. There are more than 100 briefs, representing the views of hundreds of individual and organizational “friends of the court,” in addition to those filed by the parties themselves.

Both cases were developed by a made-to-order organization called Students for Fair Admissions Inc. The group asks the court in both cases to overturn Grutter v. Bollinger, its 2003 decision upholding affirmative action in student admissions to the University of Michigan’s law school.

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Relying on a kind of double bank shot, the argument by Students for Fair Admissions goes like this: The Brown decision interpreted the 14th Amendment’s equal protection guarantee to prohibit racial segregation in public schools. In doing so, it overturned the “separate but equal” doctrine established 58 years earlier in Plessy v. Ferguson. Therefore, the court in Brown necessarily bound itself to Justice John Marshall Harlan’s reference in his dissenting opinion in Plessy to a “colorblind” Constitution.

“Just as Brown overruled Plessy’s deviation from our ‘colorblind’ Constitution, this court should overrule Grutter’s,” the group asserts in its brief. “That decision has no more support in constitutional text or precedent than Plessy.”

Briefs on the universities’ side take vigorous issue with what the University of North Carolina’s brief calls “equal protection revisionism.” Noting that Justice Harlan’s objection to enforced separation of the races was that it imposed a “badge of servitude” on Black citizens, the brief observes that “policies that bring students together bear no such badge.”