After Grutter v. Bollinger - revisiting the desegregation era from the perspective of the post-desegregation era.

• Author: Brown, Kevin D.
• Position: From Brown to Bakke to Grutter: Constitutionalizing and Defining Racial Equality

In what Justice Scalia called the Supreme Court's "split double header" (1) in the summer of 2003, the Court upheld the affirmative action plan adopted by the University of Michigan Law School in Grutter v. Bollinger, (2) but rejected the plan adopted by the University of Michigan's College of Literature, Science and Arts in Gratz v. Bollinger. (3) With these opinions, the Supreme Court has resolved one of the last major issues hanging over from the Desegregation Era of American society. The beginning of the Desegregation Era can be said to have started with the unanimous 1954 Supreme Court opinion in Brown v. Board of Education. With subsequent decisions, the Court justified the liberal use of racial classifications to remedy the harms inflicted by discriminatory practices of the past. (4)

Over the past thirty years, however, the Court has been constraining the ability to use racially conscious governmental policies and practices to remedy the current effects of America's racial history. In the 1970s, for example, the Court restricted the use of racial classifications by government to remedy past discrimination by deciding that violations of the equal protection clause are only triggered by governmental actions motivated by discriminatory intent, not discriminatory effect. (5) The Supreme Court generally prohibited the implementation of cross-district school desegregation remedies in its 1974 Millken v Bradley (6) decision. The effect of this decision was to severely restrict the use of racial classifications to eliminate segregation in America's public schools. In the 1990s the Court rendered three opinions providing for the termination of school desegregation decrees. (7) In addition, the Court has rendered several opinions rejecting the use of racial classifications to foster awarding governmental contracts to minority companies, (8) maintaining the percentage of black school teachers to act as role models for black students, (9) and striking down the use of racial classifications of prospective voters in order to ensure the creation of congressional majority-minority legislative districts. (10) Thus, it is clear that with the dawn of the Twenty-First Century, the equal protection treatment of racial and ethnic conflicts has firmly moved into a Post-Desegregation phase.

In light of the Supreme Court's opinion in Grutter, which embraces the educational and other benefits that can be derived from exposing people to different perspectives and points of view, this comment will revisit Reverend (Dr.) Martin Luther King, Jr.'s I Have A Dream Speech delivered on the steps of the Lincoln Memorial on August 29, 1963. To the extent that there is one speech or one vision that captured what the time period known as the "Desegregation Era" was about, it was the I Have a Dream Speech. Thus, a reexamination of that speech is a way in which to reexamine the meaning, purposes and goals of the desegregation of American society from the vantage point of the Post-Desegregation Era.

Section I will revisit the Court's decisions in Grutter and Gratz, but it will pay particular attention to Justice O'Connor's opinion for the Court in Grutter. It will highlight the justifications that she provided for taking account of race and ethnicity in order to achieve a critical mass of underrepresented minorities with a history of discrimination. O'Connor notes in her opinion that among the benefits derived from the use of racial classifications is the fact that discussions are livelier more enlightening and interesting when students have the greatest possible variety of backgrounds.

Section II will then revisit Reverend (Dr.) King's I Have A Dream Speech. But taking its cue from Justice O'Connor's opinion about the benefits of presenting a variety of perspectives to discuss a given social phenomena, it will revisit the speech with the Post-Desegregation Awareness. The Post-Desegregation Awareness is a conscious awareness that racial or ethnic phenomena are not understood as separate isolated and unconnected incidents. In American society, the comprehension of any particular racial or ethnic phenomena, such as the I Have A Dream Speech, is always done against a sub silento background of a much larger set of ideas about race and ethnicity and there are always many different implicit backgrounds. These sub silento background sets of ideas structure and limit the various perceptions of a given racial or ethnic phenomena in alternative and irreconcilable ways. Section II will review the dream articulated by Reverend (Dr.) King in his speech, but will interpret his dream against three different background sets of ideas that generate three separate dreams-the Individualist Dream, the Nationalist Dream and the Afrocentrist Dream. By discussing Reverend (Dr.) King's speech with the Post Desegregation Awareness, the primary insight about the Desegregation Era from the perspective of the Post-Desegregation Era can be revealed-there was not one dream shared by those who fought against racial oppression during the Desegregation Era, but a number of different and incommensurable dreams.

Since there were different and incommensurable dreams dreamed by those struggling against racial oppression, there are different interpretations of how to judge the successes of the Desegregation Era. Section III will review how the Desegregation Era was understood by the three different dreams. In addition, each of the separate dreams would have a different comprehension of the Supreme Court's opinion/decision in Grutter. Section III will also briefly discuss Grutter against the background set of ideas generated by each of the three dreams.

1. COURT'S OPINION IN GRUTTER V BOLLINGER AND GRATZ V BOLLINGER

   Justice O'Connor's opinion for the five-person majority of the Court in Grutter starts by reaffirming Powell's opinion in Regents of the University of California v. Bakke. She notes that the "[t]he guarantee of equal protection cannot mean one thing when applied to one individual and something else when applied to a person of another color. If both are not accorded the same protection, then it is not equal." (11) Since the Fourteenth Amendment protects persons, not groups, all governmental actions based on race should be subjected to detailed judicial inquiry to ensure that the personal right to equal protection of the laws has not been infringed.

   Applying strict scrutiny, Justice O'Connor's opinion noted the benefits of enrolling a critical mass of underrepresented minority students with a history of discrimination are substantial. (12)

   [T]he Law School's admission policy promotes "cross-racial understanding", helps to break down racial stereotypes, and "enables students to better understand persons of different races". These benefits are "important and laudable" because "classroom discussion is livelier, more spirited and simply more enlightening and interesting" when the students have "the greatest possible variety of backgrounds." (13) O'Connor goes on to note that the need for critical mass is not premised "on any belief that minority students always (or even consistently) express some characteristic minority viewpoint on any issue. (14) Just as growing up in a particular region or having particular professional experiences is likely to affect an individual's views, however, the unique experience of being a racial minority in a society where race unfortunately still matters will also effect a person's views. O'Connor goes on to assert that the Law School's claim of a compelling interest is further bolstered by expert studies and reports that show that student body diversity promotes learning outcomes and 'better prepares students for an increasingly diverse workforce and society as well as better prepares them as professionals.'" (15)

   O'Connor then notes additional benefits that flow from diverse student bodies that are not just tied to improvements in the educational process. Major American businesses have made it clear that the skills needed in the increasingly global market-place can only be developed through exposure to widely diverse people, cultures, ideas and viewpoints. Relying on the brief filed by high-ranking retired officers and civilian leaders of the military, O'Connor also notes that their decades of experience reveal that a highly qualified, racially diverse officer corps is essential for the military to fulfill its principle mission to provide national security. At present, the military simply cannot achieve the twin goals of an officer corps that is both highly qualified and racially diverse, without using limited race-conscious recruiting and admissions policies in the service academies and the ROTC. Finally, O'Connor notes that universities, and in particular, law schools, represent the training ground for a large number of our Nation's leaders. In order to cultivate a set of leaders with legitimacy in the eyes of the citizenry, it is necessary that the path to leadership be visibly open to talented and qualified individuals of every race and ethnicity. "All members of our heterogeneous society must have confidence in the openness and integrity of the educational institutions that provide this training.... Access to legal education (and thus the legal profession) must be inclusive of talented and qualified individuals of every race and ethnicity,...." (16)

   With the above arguments, a majority of the justices on the Supreme Court, for the first time, recognized the tremendous educational and non-educational value derived from exposing people to the different perspectives derived from the experience of minority groups with a history of discrimination. These benefits are substantial enough to constitute a compelling state interest to justify the use of racial classifications. However, the Supreme Court also rejected the affirmative action plan presented to it in Gratz as not narrowly tailored because the plan did not provide for...