Standing on the promise of Brown and building a new Civil Rights Movement: the student intervention in Grutter v. Bollinger.

• Author: Massie, Miranda K.S.

I want to thank the Albany Law Review for a very lively symposium, devoted to what I think is the most important subject in America--and that is race and racism and what we do about them.

I am going to break my remarks up into three short chunks. First, I want to provide a historical framework for the significance of these issues. Second, I want to tell you something about the arguments that we have been making in Grutter v. Bollinger; (1) the University of Michigan affirmative action case. Third, I will talk a little bit about what the students that I work with in several organizations, including the Coalition to Defend Affirmative Action and Integration and Fight for Equality By Any Means Necessary, have been doing to rebuild the Civil Rights Movement that, in my view, is what brought us affirmative action in the first place and what will allow us to sustain and improve our progress toward equality in the future. It is not arguments about different levels of scrutiny, not legal tests, but rather, what all of us in this room can do to educate our fellow citizens about what equality demands, where we have been, and how far there is left to go. That is what will really change things.

So first, the Grutter case was brought by the Center for Individual Rights (CIR) to challenge the constitutionality of the University of Michigan Law School's admissions policy. The people I represent anticipated that the University would rely largely on the diversity argument made in Bakke, (2) and we wanted to make equality arguments for affirmative action because to us, equality is what affirmative action is all about.

Now with that said, I do not think you can separate diversity and affirmative action. I do not think that Justice Powell's view of diversity can be separated from his understanding of racial inequality in America and the need to continue making progress toward integration. (3) Another way of putting that is that you cannot understand this case outside of the framework of Brown v. Board of Education of Topeka, (4) and if we lose this case, the principle of Brown--that separate can never be equal--will be a principle that we will have essentially abandoned in practice. It will be a principle that we honor only in the breach and that is very easy to show through the post-affirmative action figures in various jurisdictions.

I will give you some numbers on that, but I encourage you to look them up on websites of the University of Texas and the University of California. (5) It is information accessible to the public showing that when we have lost affirmative action, our schools have been resegregated. I will give you just one example now, and I will get more into this later.

One year after the school's affirmative action program was discontinued in admissions at Boalt Hall, U.C. Berkeley Law School, there was one Black student enrolled in a class of nearly 300 students. (6) Turn the clock back sixty years--to the days before Brown--and there was only one Black student at Boalt Hall. That is to say, if you turn the clock back to the days before the end of legal segregation you get the same result as you do today. The only way that we have moved forward in this nation--which is defined by the maintenance of a caste system in which White people get preferences and privileges every day based only on the fact that they are White is because of the progress of the Civil Rights Movement. We have democratic aspirations to be a nation in which there is true equality and in which we have real democracy--not just formal democracy--and that is our foundational tension. It has been built into the Constitution, and it has been built into our moments of historical progress and regress.

What we have seen recently is more regress than progress because social movements have been on the wane. But there have been moments in which we have seen progress and have been provided with occasions that we want to tell our children about. The 1963 march on Washington is one example. These are moments when we come together to stand for progress in matters of race and to say that we reject our legacy of segregation, inequality, and racism that is directed at all non White people in the United States. First and foremost at Black people in the United States but also at Latinos, Native Americans, Asian Americans and at every group of minorities. The only way we have ever been able to offset those problems is by taking account of the problem itself--which stands to reason since turning a blind eye to a problem cannot solve it. We need to confront it in a way that is honest, rigorous, serious, and not pessimistic. We should be profoundly optimistic about our capacity to move forward together.

If we know the legacy of racism, and its current existence, then we can move forward. Today, name an important area of American life: health care, mortgage rates, how much you pay for a car, whether your doctor will give you the treatment you need, or standardized test scores. Then name something that matters for opportunity and quality of life in America today, and race is the one thing that correlates most with it.

Somebody give me a counter example--there is not one. Race is a huge factor in our society, and race is not just a matter of skin color. If we were on Mars, and some of us were purple and some of us were green, and we had a wholly different society--and a wholly different history--then yes, it might be intellectually honest to use the phrase skin color as shorthand for talking about race, racism, and racial discrimination. But that is not so, and everyone in this room knows it.

Race is about experience, opportunity, community, and a whole bunch of other socially defined categories. It is not simply a matter of skin color. There is nobody that can tell me that they genuinely believe that it is.

Because racism has been so fundamental to defining the character of American democracy--both when we have made progress and when we have not made progress--when we have made progress it has been extended to other areas. So, for example, you cannot imagine the movement for women's suffrage without the abolitionist movement because all the women, and a small number of men, who stood for women's suffrage were veterans of the abolitionist movement. The same thing is true of second-wave feminists coming out of the Civil Rights movement. All of the leaders of the feminist movement were veterans of the Civil Rights struggles. We would not have gay rights, we would not have rights for people with disabilities, and we would not have an age discrimination statute enacted by Congress if we had not had struggles for progress toward racial equality.

So had there never been affirmative action, this room would be full of White men only with maybe an exception or two. I would not be a lawyer. We would not have any kind of opportunity for women of any race in the professions. We would not have any kind of opportunity for non-elite White men. Because the other thing about affirmative action is that it opened up the doors to lower income White people to go to colleges and universities. The University of Michigan, prior to the adoption of affirmative action policies, had no systematic way of dealing with financial aid...