Racial inclusion, exclusion and segregation in constitutional law.

• Author: Adams, Michelle

"Racial isolation" itself is not a harm; only state-enforced segregation is. (1)

A compelling interest exists in avoiding racial isolation, an interest that a school district, in its discretion and expertise, may choose to pursue. (2)

INTRODUCTION

For more than a generation, much of the legal scholarship concerning the underpinnings and aims of the equal protection clause has centered on a debate between "anti-subordination" and "anti-classification" or "anti-differentiation." For some time, these twin themes have animated the discussion about equal protection law. On the anti-classification or anti-differentiation view, the equal protection clause protects against government action that classifies on the basis of race or that otherwise differentiates on the basis of race. (3) An anti-classification view emphasizes discrimination, and is primarily concerned with individual versus group rights, and the particular motivations of the government actor in taking the complained-of action. (4) The anti-classification or anti-differentiation perspective has largely been associated with a narrower interpretation of the equal protection clause, one that would tend to reject affirmative action programs.

On the other hand, the anti-subordination view emphasizes that the equal protection clause protects against government action which "helps sustain or reinforce unjust forms of social hierarchy or social subordination." (5) The anti-subordination view emphasizes groups rather than individuals, is concerned with social status and racial hierarchies and argues that the equal protection clause should be interpreted to prevent an unjust social structure. (6) The anti-subordination view has largely been associated with a broader interpretation of the scope of the equal protection clause, one that would countenance affirmative action schemes.

However, the Court has never explicitly articulated its acceptance of the anti-subordination approach. On the other hand, the Court has expressly adopted the anti-classification view and it refers to the need to root out racial classification schemes routinely in equal protection cases. (7) To be sure, many of the Court's cases can be explained by reference to antisubordination values. (8) But only in the few instances where the Court has spoken directly to the evils of "white supremacy" (9) or explained how racially separate public schools create feelings "of inferiority as to their status in the community" (10) do we have more direct evidence of the Court's adoption of an antisubordination approach.

Conversely, the Court has often spoken explicitly about the evils of racial segregation as distinct from the harms associated with racial classification schemes. In some contexts, the Court has acknowledged that segregation operates as a particularly effective mechanism of exclusion, separating individuals on the basis of race and preventing them from having access to opportunity. Supreme Court doctrine suggests that the Court "cares" about racial segregation because it is a strong marker for exclusion. Has the Court always displayed concern about segregation as a mechanism of exclusion? No. Segregation's status and constitutional relevance is the subject of great debate on the Court. But the Court's view of segregation has not been monolithic. This Article argues that the Court has evidenced far more concern about de facto segregation as an exclusionary and stigmatizing mechanism than many scholars and commentators recognize. As it turns out, a very specific type of anti-subordination value often animates the Court's equal protection jurisprudence: a concern about the corrosive effects of de facto racial segregation.

This argument is not just of historical import. Instead, the Court's perception of the harms of segregation will play a large role in determining the continuing constitutional vitality of affirmative action in higher education. Indeed, the Court is poised to revisit its decision in Grutter v. Bollinger, (11) which upheld the University of Michigan Law School's affirmative action program. In a recent and widely followed case, Fisher v. University of Texas, (12) the United States Court of Appeals for the Fifth Circuit relied upon Grutter to uphold the University of Texas' affirmative action program against a constitutional challenge. (13) But in a special concurrence, Judge Emilio M. Garza urged the Supreme Court to overturn its decision in Grutter v. Bollinger. (14) The Court has granted certiorari in Fisher and the ultimate outcome will almost certainly hinge on whether the Court still believes that affirmative action programs serve broadly inclusive, non-segregative ends or whether such programs are simply so divisive that they cannot comport with the equal protection clause.

In Part I of the Article, I examine early cases in which the Court described segregation as a form of resource "lock-up." In several cases leading up to Brown, the Court detailed how racial segregation allows a more dominant group to hoard substantial societal resources. In these early cases, the Court's focus was on segregation as a mechanism for excluding individuals from valuable benefits on the basis of race; it did not speak explicitly to the harms associated with racial classification schemes. In this Part of the Article, I also return to Brown v. Board of Education and explore the Court's discussion of segregation and its link to psychological harm and status diminution. As in several of the cases leading up to Brown, the Court does not speak explicitly to the evils of racial classification schemes. Brown still stands as a sharp critique of the evils of segregation.

In Part II, I explore how the Court has sometimes used de facto segregation as evidence of de jure discrimination in school districts that had been (but were no longer) segregated by law. In the South at least, the fact of segregation in the public schools triggered an affirmative duty to desegregate even when the public school districts were not necessarily responsible for that segregation. In this Part, I also trace Brown's journey North. I offer an interpretation of Milliken v. Bradley II, (15) which emphasizes the Court's deep discomfort with segregation and links its dismay with the social stratification and racial stigma associated with segregation. This Part ends with a reading of the Court's later Brown implementation cases, which refused to adopt Justice Thomas' narrow view of the meaning of "segregation."

In Part III, I shift to the voting rights context and discuss how the Court in Shaw v. Reno (16) viewed a districting scheme which explicitly segregated voters by race into separate electoral districts as a particularly virulent form of racial classification. In Shaw, the Court is concerned not just with racial classification schemes that infect the political process, but it is also concerned with how racial segregation undermines the political process. As I explain, Shaw's central claim is that segregation, not just racial classification schemes, harms the polity. The lesson of Parts I, II and III of this Article is that while the Court's understanding and concern about segregation is often contradictory and dismissive, it is also far more nuanced than commonly appreciated. Segregation can "move" the Court when it explicitly stands as a marker of exclusion.

Finally, in Part IV, I discuss Grutter v. Bollinger. (17) In Grutter, the Court held that the government could use racial classifications to enhance racial diversity. Grutter embraced racial integration as a mode of facilitating racial inclusion. Grutter has links to previous cases in which the Court demonstrated a deep and abiding concern about the stigmatizing and racially exclusionary aspects of segregation. But in Parents Involved, the Court appeared to step back from Grutter's more enthusiastic endorsement of racial integration. Grutter's continuing viability will turn on whether the Court views affirmative action as playing a divisive, balkanizing and exclusionary role in American life or instead on whether the Court sees affirmative action as playing a broad inclusionary and desegregative role in American life. (18)

1. SEGREGATION AND RESOURCE "LOCK-UPS"

   At various points, the Court has characterized segregation as a form of exclusion. In several cases decided prior to Brown, the Court described the harm associated with segregation as a type of "resource lock-up." Take McLaurin v. Oklahoma State Regents for Higher Education. (19) In McLaurin, a student was admitted to a state graduate program in education, but segregated from his peers within the school. (20) Rather than focus on the harm created by the state's classification scheme which required intra-school segregation, the Court focused on how segregation harmed McLaurin's ability to study and learn his profession. (21) The Court noted that the segregation requirement "sets McLaurin apart from the other students," (22) which had the effect of preventing him from gaining access to a valuable resource on the same terms as white students, a doctorate in education.

   Another way of stating this is to suggest that a valuable resource, graduate study, was being reserved to members of the dominant group and members of the disfavored group were excluded from equal access to that resource; McLaurin suggests that that resource must be shared. (23) Indeed, the Court previewed a theme that was to become dominant in Grutter almost three generations later: the relationship between higher education and societal leadership. The Court observed that as our society grows increasingly complex, the "need for trained leaders increases correspondingly." (24) The Court asserted that individuals attaining advanced degrees would become leaders in their communities and trainers of others. (25) But McLaurin's ability to perform this vital leadership function would be fatally undermined by a racially segregated education. (26)

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