Colleges Must Follow the Law, but they Don't Need to Aid SCOTUS's Resegregation AgendaRoundup
tags: higher education, affirmative action, desegregation
Richard Thompson Ford is a professor of law at Stanford University. He is the author of five books, including The Race Card (Farrar, Straus and Giroux, 2008), Rights Gone Wrong: How Law Corrupts the Struggle for Equality (FSG, 2011), and Dress Codes: How the Laws of Fashion Made History (Simon & Schuster, 2021).
On cue, the Supreme Court has invalidated race-conscious affirmative action in higher education. The majority opinion was preordained, but the dishonesty and cowardice of that opinion and the concurrences are still breathtaking. It’s especially galling that the court cloaked an attack on integration in the equal-protection clause of the 14th Amendment and the Brown v. Board of Education decision. And make no mistake: Opposition to affirmative action is part of a segregationist agenda that began with opposition to school desegregation in the 1950s and has taken new and more-underhanded forms as evolving public opinion made an open defense of segregation untenable.
Chief Justice John G. Roberts Jr.’s mentor, the late Chief Justice William H. Rehnquist, opposed Brown v. Board of Education when he was a clerk to Justice Robert H. Jackson. In a memo to Jackson, Rehnquist urged that the doctrine of “separate but equal” be upheld, writing: “I think Plessy v. Ferguson was right and should be reaffirmed.” By 1971, when Rehnquist was nominated to the Supreme Court, Brown was sufficiently well established that he felt compelled to deny his position and attribute it to his deceased former boss, Justice Jackson. (Jackson in fact voted with a unanimous majority in Brown to overturn Plessy and segregation.) Rehnquist made the same claim in his 1986 confirmation hearing to be chief justice.
But the historical record available today makes it clear that the memo endorsing segregation reflected Rehnquist’s own views. In 1987, when Ronald Reagan nominated Robert H. Bork to the court, Democrats blocked his nomination, pointing out that his originalist judicial philosophy would overturn Brown and pave the way to a return of racial segregation. From then on, opponents of integration would adopt the covert approach pioneered by Rehnquist: Rather than attack Brown directly, they would quietly undermine it by limiting its scope and distorting its meaning.
Over time they turned Brown against itself, supplanting the egalitarian imperative of desegregation with one that was compatible with continued segregation: colorblindness. It had been well understood that colorblindness was compatible with segregation. Long before Brown, Jim Crow states used formally colorblind laws to lock in racial hierarchy. For example, after Reconstruction, they enacted literacy tests and poll taxes to disenfranchise recently emancipated slaves but added “grandfather clauses” that exempted anyone descended from prewar voters from the new requirements. Later, segregated school districts tried to circumvent Brown with colorblind “school choice” plans that assigned most students to the (segregated) schools they had previously attended unless they objected to the assignment. Today’s most prominent advocate of the colorblind interpretation of Brown and the 14th Amendment is a former Rehnquist clerk, Chief Justice Roberts.
Those tactics worked. Today, many K-12 schools are as racially segregated as they were in the 1960s, and for most students in those schools, college offers their first significant exposure to people of other races. With the Students for Fair Admissions cases, the Supreme Court has taken a big step toward ensuring that selective colleges and universities become as segregated as the typical K-12 school in a wealthy suburb.