Affirmative Action, Law Professors, Minority Issues, Supreme Court

'Affirmative Action' In Law: The Four-Letter Phrase

How come law professors avoid speaking about affirmative action? How come we as a society can't civilly debate the merits of affirmative action?

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“If I told you that a flower bloomed in a dark room, would you trust it?”

— Kendrick Lamar

How come law professors avoid speaking about affirmative action? Are law professors banned from discussing these type of issues? Did Randall Kennedy corner the market on this policy? How come we as a society can’t civilly debate the merits of affirmative action? The 2007 plurality opinion in Parents Involved in Community Schools v. Seattle School District No. 1 (aka the PICS case) has influenced and will continue to influence desegregation/integration efforts of schools. However, it may be Chief Justice Roberts’s famous quip that could keep PICS and its repercussions at the forefront of many peoples’ minds. I wonder if Roberts regrets stating, “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” Ironically, Justice Thomas added in a concurring opinion that “if our history has taught us anything, it has taught us to beware of elites bearing racial theories.”

The fifth member of the majority, Justice Kennedy, refrained from joining Roberts’ opinion. Kennedy was critical of what he described as the chief justice’s “all-too-unyielding insistence that race cannot be a factor in instances when, in my view, it may be taken into account.” In the principal dissenting opinion, Justice Breyer denounced the majority opinion and stated, “It is not often in the law that so few have so quickly changed so much.” Breyer said segregationist policies didn’t simply tell black children where they could attend school but “perpetuated a caste system rooted in the institutions of slavery and 80 years of legalized subordination.”

As a Supreme Court justice, Thurgood Marshall championed affirmative action. I wonder how Justice Marshall’s son and widow felt as they sat in the courtroom listening to the Schuette v. BAMN opinion being announced. In Schuette, Justice Sotomayor played Roberts’s foil, and rarely has a feud between justices been so public and personal. Compared to Breyer’s 77-page dissent in PICS, Sotomayor’s 58-page dissent in Schuette may seem pithy. However, it is her dissent that has drawn additional attention to Schuette and has reinvigorated discussion about Roberts’s views in PICS. It often frustrates me that we as a society cannot engage in civil debates regarding issues like affirmative action. The PICS split opinion and Schuette’s plurality opinion leave much to be addressed.

I thought in law school our professors would express their views regarding these types of policies and question our premises in the process. Instead, most law school professors refrain from broaching these topics and abstain from expressing any views one way or the other. It is alarming to hear the fury and vitriolic speech of my fellow law students who are against the proposal or idea of reparations. The reflexive visceral reactions generated by topics such as affirmative action or reparations seem to only entrench each side of the debate into their respective positions. Fear and pain seem to drive the discussion instead of logic and reason. OK, so you are against reparations. Why are so angry about the mention or possibility of these types of policies?

Roberts’s argument seems to ignore the legacies we have all inherited, the reality we each individually face. Eric Liu, the former presidential speechwriter, may have stated it best when he wrote, “The experience of African-Americans is exceptional in its systematic, multigenerational, reverberating effects. And it’s exceptional in its centrality to the founding and building of our nation. No experience reveals more than the African-American experience both the hypocrisy and the possibility of our national creed.” I often wonder why law students against policies that seek to make up for previous discrimination become so enraged upon the broaching of such subjects. Is this why the majority of law professors are afraid to speak about such types of policies?

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Perhaps Roberts’s famous line doesn’t sit well with me because he used Justice John Marshall Harlan’s “Our constitution is colorblind” argument out of context. As the lone dissenter in the 1896 case Plessy v. Ferguson (the origin for the “separate but equal” philosophy and ultimately the Jim Crow system), Harlan states, “In the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. Our constitution is colorblind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law.” If we are to truly understand Roberts’s foundation for his colorblind commitment, we should understand the context of Harlan’s dissent – the nexus for the colorblind philosophy.

Prior to stating the “constitution is colorblind,” Harlan states “The 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. But in view of the Constitution, in the eye of the law. . . Our Constitution is color-blind.” Justice Harlan’s prefatory comments about the “white race” make the progeny of this “colorblind” philosophy disingenuous at best. The “colorblind” term was certainly never meant to support the view that “the way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” In fact, the nexus for the “colorblind” philosophy suggests exactly the opposite.

Justice Henry Brown’s majority opinion in Plessy rationalized the “separate but equal” principle by stating that if the “separate but equal” principle carried any “badge of inferiority” for African Americans, “it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it.” I often hear remnants of this rationalization for inherently unequal systems today. It wasn’t that long ago (1927) that Asian-Americans were also banned from attending schools reserved for whites.

In his book “For Discrimination: Race, Affirmative Action, and the Law,” Randall Kennedy presents reasoning for and against affirmative action. Kennedy argues that “overwhelming evidence indicates that the framers of the Fourteenth Amendment did not intend to create a colorblind Constitution,” since the Fourteenth amendment was actually designed to foster citizenship for a special class, African-Americans. This obviates the argument that race-based decisions for the purpose of affirmative action are unconstitutional.

Affirmative action exists today only because Justices O’Connor, Stevens, Souter, Ginsburg, and Breyer narrowly won the day (5-4) in 2003’s Grutter v. Bollinger. Regardless of your views regarding affirmative action, it is important to understand the logic behind such proposals. Whether you deem a policy impossible to implement or believe our system should be “colorblind,” it is important to understand the history of such policies and the legacies of our system. For some, it is race-consciousness that is racism. For others, racism is reality and history. I hope this is the year that we as peers and colleagues – law professors, law students, and lawyers – can begin to genuinely discuss and civilly debate the merits of these type of policies in our education system and society as a whole. If we don’t continue to raise these issues, who will?

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Renwei Chung is the Diversity Columnist at Above the Law. You can contact Renwei by email at projectrenwei@gmail.com, follow him on Twitter (@renweichung), or connect with him on LinkedIn. 

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