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Excerpted From: NAACP Legal Defense and Educational Fund, Inc. and the American Civil Liberties Union, Brief for the NAACP Legal Defense and Educational Fund, Inc. and the American Civil Liberties Union as Amici Curiae in Support of Respondents, United States Supreme Court Amicus Brief, Barbara Grutter, Petitioner, V. Lee Bollinger, et Al., Respondents, and Kimberly James, et al, Respondents. No. 02-241. February 14, 2003. (9 Footnotes) (Full Document)

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Summary of Argument

This country has journeyed a long and painful road toward racial integration that this case now threatens to destroy. For many African Americans, the force of this nation's sordid and all too recent history of apartheid still blocks their path. If there is any hope for this country to continue to make racial progress, it lies, at least in part, in the unique ability of colleges and universities to bring together persons of all racial backgrounds to achieve the educational benefits of diversity and, ultimately, to create a more just, racially integrated society.

More than 300 years of slavery, segregation, and invidious discrimination by public and private actors have produced a systemic racial hierarchy that continues to this day. Numerous studies document continuing widespread racial inequality in virtually every aspect of our society, including education, employment, income, housing, health care, life expectancy, criminal justice, and in the accumulation of wealth. These studies demonstrate the impact that race has in molding the opportunities, experiences, and outlook of the overwhelming majority of African Americans, including the black middle class. The impact of race stretches across all economic strata and extends even to those arguably best positioned to capture the benefits of race-neutral policies. While class is an important factor in accounting for opportunity, it is demonstrably incorrect at this relatively early stage in our country's progress on race to assert that class alone uniquely shapes economic, social, and political opportunity in this country. In short, race matters, significantly — not because it should, but because it does.

Yet the Court's jurisprudence, including notably its discussion of “societal discrimination” in Bakke, has cast a pall over the ability of state and local actors to remedy voluntarily the powerful imprint of racial discrimination on our society. The Court's affirmative action cases refer only in passing, if at all, to our country's undeniable and tragic history of racial oppression. The cumulative, inter-generational consequences of such racial subordination are dismissed as mere “societal discrimination,” for which no institutional actor may be held accountable, even those that have been complicit in perpetuating racial disadvantage.

A principal objective of the Fourteenth Amendment was to mitigate the enormous burdens of African Americans emerging from slavery. It is a perversion of its purpose to prohibit modest state efforts, such as the University of Michigan Law School's admissions program, to redress systemic racial inequity.

ARGUMENT

It is because of a legacy of unequal treatment that we now must permit the institutions of this society to give consideration to race in making decisions about who will hold the positions of influence, affluence, and prestige in America. For far too long, the doors to those positions have been shut to Negroes. If we are ever to become a fully integrated society, one in which the color of a person's skin will not determine the opportunities available to him or her, we must be willing to take steps to open those doors. I do not believe that anyone can truly look into America's past and still find that a remedy for the effects of that past is impermissible.

Justice Thurgood Marshall, in his Bakke dissent

 

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