Colorblind diversity: the changing significance of "race" in the post-Bakke era.

• Author: Baldwin, Bridgette
• Position: Symposium: Defining Race

"If there is one lesson to be learned from our tragic experience in the Civil War and its wake, it is that the question of racial discrimination is never settled until it is settled right. It is not yet rightly settled."

Chief Justice Earl Warren (1)

"Thus, in the long effort to gain equality through integration, blacks have learned that white America will accommodate the interests of blacks and other racial minorities when and only when those interests converge with those of whites."

Derrick Bell (2)

INTRODUCTION

In 1954, fifty-eight years after the Plessy v. Ferguson (3) decision, the Supreme Court was afforded another opportunity to revisit the "separate but equal doctrine" in Brown v. Board of Education of Topeka (Brown 1). (4) Brown I was a consolidation of five civil rights cases from the District of Columbia, Delaware, Kansas, Virginia, and South Carolina that attempted to change race relations in America by affording African Americans a piece of the pie. (5) A few other cases soon followed Brown I. In 1963, Goss v. Board of Education of Knoxville (6) proclaimed that any program that structurally appeared to maintain segregation would be held unconstitutional. (7) And in 1964, Griffin v. Prince Edward County School Board (8) announced that pretense integration of black children would also violate the Constitution. (9) Despite the Court's signature announcement of equality of "Negroes," (10) Brown I has not completely altered the inequalities of the past. For that reason, race-conscious policies instituted not only by admissions departments in colleges and universities but also in primary and secondary educational institutions are needed to level the playing field. Since Brown I, there have been a number of statutes, court cases and policies that have continued to struggle over the use of race-conscious policies in the goal for racial equality. (11)

Title VI of the Civil Rights Acts of 1964, (12) the governing standard in Regents of the University of California v. Bakke (Bakke), (13) California's and the state of Washington's anti-affirmative action propositions, (14) and a number of judicial decisions regarding racial preferences are persistent themes in the continuing saga over the use of affirmative action and race-conscious programs. (15) Race-conscious programs were enacted for the most part to remedy past transgressions inflicted upon African American citizens and to help them overcome decades of discrimination. (16) The setting for the challenge to the few legal benefits afforded African Americans in higher education came in the Bakke case. (17) Unsurprisingly, in a narrowly split decision, Justice Powell announced that while separate benefits designed to attract and matriculate minorities were prohibited, affirmative action plans involving racial classification were permissible under the Fourteenth Amendment. (18) Ironically, however, what appears to be a permissive judicial decision actually signaled the downward spiral against legal considerations of racial diversity within higher education.

In what follows, I will first argue that while Bakke preserved the possibility of race preference, its language of racial neutrality detached the law from the social and historical context of racial inequalities. The language on race is so neutral that it has allowed whites to argue that racial preferences constitute reverse discrimination under the law. (19) This same language that was once used to right past wrongs is now being used to support "white skin privilege." (20) Second, denying the social and historical context of governing standards like Bakke allows society to ignore that white preferences still exist. Because Bakke never erased white preferences, diversity must remain a key factor in our implementation of affirmative action programs. Finally, while Grutter v. Bollinger (21) reinforced the value of diversity in higher education settings, I contend that diversity is a variable that should be incorporated into affirmative action programs that extend to all levels of education.

1. HISTORICAL AND SOCIAL CLIMATE

   It is important to view court decisions involving affirmative action programs in the context of the social and historical climate in which they were delivered. Unbeknownst to many, the Bakke case was not the first decision on race-based admissions policies in higher learning institutions to reach the Supreme Court. The first case was Defunis v. Odegaard. (22) Luckily, the issue surrounding whether Marco Defunis, Jr. was the victim of reverse discrimination in this case was rendered moot, (23) leaving intact the spirit of Brown I that recognizes group inequalities in their historical context. (24) This proved to be a short lived victory, however, because just four years later, Allen Bakke sued the Regents of California Medical School, alleging that he was denied admission twice for what he deemed to be discriminatory reasons. (25) With no majority opinion, the Supreme Court reached its landmark 5-4 decision with "no single one speaking for the Court." (26) While the Bakke decision ruled that universities could not set specific quotas for minority admissions, it left open the possibility that race could be used as a factor to achieve the important goal of diversity on campuses. (27) Under the Court's strict scrutiny analysis, the governing standard was clear, race-based admissions policies could still be used to matriculate minority students. (28)

   The Supreme Court's preservation of racial preferences in Bakke indicates that the Court believed that we had not arrived at our colorblind country. The Court's seemingly neutral ruling, however, in fact detached the law from the true social and historical context of then-existing racial inequalities. By example, the Court concluded that "[a]s the interest of diversity is compelling in the context of a university's admissions program...." (29) "Ethnic diversity, however, is only one element in a range of factors a university properly may consider in attaining the goal of a heterogeneous student body." (30) By indicating that ethnic diversity may be used as a factor instead of perhaps connecting racial representation to historic oppression, the Court opened the door for anyone to claim racial oppression based on simply having an ethnic identity. This seemingly ambiguous language allowed whites to suggest that their race too must be considered as a factor in a race-based policy. It also gives those identified as white the opportunity to argue for "white skin privilege" under the guise that their civil rights are being violated and that they become the victims of reverse discrimination when policies are created to target truly marginalized minority groups.

   Likewise, it is clear that

   [t]he guarantee of equal protection cannot mean one thing when applied to one individual and something else ... to a person of another color. If both are not accorded the same protection, then it is not equal.... [T]he [Fourteenth] Amendment itself was framed in universal terms, without reference to color, ethnic origin, or condition of prior servitude. (31) While this may be true, in this country, white people have never been relegated to substandard housing, or subjected to poor health care or limited educational opportunities on the grounds of race. While inequality to white people might come from class, gender or sexual orientation, when one is culturally/legally sanctioned as white in this country, one acquires some variable level of "white skin privilege," whether the beneficiaries of this privilege realize it or not. The converse is true for African Americans, who confront the ubiquitous consequence of being born into the "black detriment."

   It is obvious that the plurality opinion in Bakke at least realized that the consideration of race was also meant to afford minorities at least a seat on the train and not necessarily a free ride to the top. (32) The Court's language, however, safeguards positions of power for whites. Here again,

   this Court has ... interpret[ed] the Equal Protection Clause ... assuring to all persons "the protection of equal laws," in a Nation confronting a legacy of slavery and racial discrimination.... [L]andmark decisions ... arose in response to the continued exclusion of Negroes from the mainstream of American society, [and the decisions] could be characterized as involving discrimination by the "majority" white race against the Negro minority. But they need not be read as depending upon that characterization for their results. It suffices to say that ... "this Court has consistently repudiated '[d]istinctions between citizens solely because of their ancestry' as being 'odious to a free people whose institutions are founded upon the doctrine of equality.'" (33) On the surface level, one could applaud this passage as recognition by the Court of past discrimination on the grounds of racial injustice. Under closer analysis, however, a language of neutrality immediately suppresses the original declaration where the Court says that the equal protection decisions "need not be read as depending upon that characterization [(discrimination of blacks by whites)] for their results." (34) In my mind, this passage becomes the linchpin in turning a conversation about injustice against African Americans, contemplated within its historical and social context, into an abstract conversation about race that could be accessed by anyone despite his or her privileges. (35) So, what was once an issue of racial inequality is transformed into one merely of racial difference. After Bakke, it was not inequality on the grounds of racial injustice that conferred rights, but just the simple ownership of a racial identity, whether black or white, which conferred a position of poverty or privilege. It is this passage that reinforced the legal justification for terms like reverse discrimination.

   Although the question in Bakke boiled down to whether race could...