When the Supreme Court issued its ruling in Students for Fair Admissions v Harvard and held that the use of race-conscious admissions programs violates the Equal Protection Clause of the Constitution, the majority opinion rejected the Court’s earlier view found in Bakke, Grutter and Fisher that affirmative action was constitutional. And while these previously issued rulings might be considered complicated concerning both the splintered opinion in Bakke and Grutter’s 25-year time limit that is very prone to interpretation, in Students for Fair Admissions v Harvard the Court invoked two significantly more unambiguous decisions from its past: Brown v Board of Education and Plessy v Ferguson, especially Mr. Justice Harlan’s lone dissent.
In 1896 the Supreme Court heard arguments in a case called Plessy v Ferguson about whether the Jim Crow era doctrine of ‘separate of equal’, and by extension the Jim Crow laws of the American South that segregated Black and White people from each other, were constitutional. In an 8-1 ruling, the Court stated that separate railcars for Blacks and Whites were equal despite their separateness and that the separateness of the races alone did not constitute a sense of inferiority. The rationale that would be heavily questioned 58 years later. The essential finding of Plessy for a reader from the 21st century was that the Constitution was not color-blind and that there was constitutional basis for judging people differently according to the color of their skin. It could be said that the decision in Plessy was weaponized by the majority opinion in Harvard to strike a resemblance between it and Bakke, Grutter and Fisher – the Supreme Court rulings that upheld affirmative action in higher education. Justice Harlan’s dissent, however, left the door open for the Roberts Court to cite it to show how “Justice Harlan knew better” than to want to uphold a scheme that gave one racial group an advantage over the other merely on the basis of race.
However, 58 years later in what is nowadays known as one of the most significant landmark cases in the history of the United States Supreme Court, a unanimous panel of the nine justices held that the ruling made in Plessy had to be overturned. In 1954, a case by the name of Brown v Board of Education re-examined whether segregation in public schools and the doctrine of ‘separate but equal’ were still considered constitutional. A Black plaintiff called Oliver Brown challenged the policy of a segregated public schooling system in Topeka, Kansas in a lawsuit that eventually reached the United States Supreme Court. In a turn of events that seemed and eventually was seen as a political rather than a judicial fight, Chief Justice Earl Warren wanted to build a consensus around a single opinion that would end racial segregation once and for all. What followed were two unanimous opinions with no concurring opinions presented, and an assertion that public schools must start admitting children “on a racially nondiscriminatory basis with all deliberate speed”. The irony is that while the decision was one of the first steps in ending segregation and it worked in favor of Black Americans, the decision was later used as a stepping stone for the Court’s current conservative majority to strike down colleges’ affirmative action policies that had also favored Blacks for at least five decades (with Bakke being decided already in 1978). The rationale was that the Constitution was not color-blind only when it benefited Blacks, but that it had to be color-blind no matter what the outcome of that color-blindness would be. Affirmative action was a historical error just like segregation, and one wrong couldn’t be used to remedy the other.
At the end of the day, it didn’t matter what amount of precedent lay between Brown and Students for Fair Admissions v Harvard. Historical errors had to be made right no matter how long that erroneous interpretation had reigned. The parallel was also visible, almost crystal clear, in the majority and concurring opinions: just like Brown corrected the historical error made in Plessy, so was Students for Fair Admissions v Harvard almost compelled to correct the Plessy-echoing errors made in Bakke, Grutter and Fisher.
Team L. M. W. F. (Harvard, Case Genetics)