III. The Fourteenth Amendment Should Not Be Interpreted to Frustrate Voluntary State Efforts, Using Race-Conscious Remedies, to Eliminate the Continuing Effects of State-Sponsored Discrimination.

As detailed above, this country faces a crisis of racial inequality, which has had the ripple effect of removing untold numbers of African Americans from the pool of individuals eligible to compete for admission to selective institutions of higher education, including the University of Michigan. See, e.g., Bakke, 438 U.S. at 370-71 (Opinion of Brennan, White, Marshall & Blackmun, JJ.). It has also provided unfair advantages to whites as a group, who have disproportionately benefitted from the racialized dimensions of economic, political, and social opportunity in our country. This systemic and systematic racial inequality, from cradle to grave, makes consideration of race not only relevant, but essential, to public institutions in today's society.

Yet the Court's jurisprudence, especially its ruling in Bakke, has dismissed this rooted inequality as “societal discrimination” that is beyond the power of state actors to remedy. See City of Richmond v. J.A. Croson Co., 488 U.S. 469 (1989); Bakke, 438 U.S. at 307. This makes it virtually impossible for a public institution voluntarily to take account of race, short of implicating itself in identified racial discrimination, which such institutions, concerned about their own liability, are frequently unwilling to do. Cf. Wygant v. Jackson Bd. of Educ., 476 U.S. 274, 291 (1986) (O'Connor, J., concurring)(public employers might be “trapped between the competing hazards of liability to minorities if affirmative action is not taken … and liability to non-minorities if affirmative action is taken”). The inability of state and local institutions to act voluntarily to relieve this continuing disparity threatens to relegate African Americans to a permanent third class status, without legally cognizable means for redressing systemic racial disadvantage brought on by such institutions throughout hundreds of years of slavery, segregation, and discrimination. It further threatens to create a permanent drain on this country's pool of potential talent and, ultimately, to produce a society forever divided by race. As Justice Marshall concluded in Bakke:

In light of the sorry history of discrimination and its devastating impact on the lives of Negroes, bringing the Negro into the mainstream of American life should be a state interest of the highest order. To fail to do so is to ensure that America will forever remain a divided society.

438 U.S. at 396 (Opinion of Marshall, J.). The Court's unwillingness to endorse race-conscious remedies aimed at mitigating the pernicious effects of widespread discrimination is contrary to the purpose and spirit of the Fourteenth Amendment. See id. (“I do not believe that the Fourteenth Amendment requires us to accept that fate. Neither its history nor our past cases lend any support to the conclusion that a university may not remedy the cumulative effects of society's discrimination ….”); id. at 407 (Opinion of Blackmun, J.) (“In order to get beyond racism, we must first take account of race. There is no other way. And in order to treat some persons equally, we must treat them differently. We cannot — we dare not — let the Equal Protection Clause perpetrate racial supremacy.”).

A. The Persistence of Pervasive Racial Inequality Calls For the Court to Revisit its Conclusion In Bakke That Redressing “Societal Discrimination” Is Not A Compelling Interest

In an opinion authored by Justice Powell, a majority of the Court in Bakke rejected the University of California at Davis Medical School's use of race to redress the effects of “societal discrimination,” which it deemed “an amorphous concept of injury that may be ageless in its reach into the past.” 438 U.S. at 307. In the “absence of judicial, legislative, or administrative findings of constitutional or statutory violations,” id., the Court concluded that it could not sanction a classification aimed at assisting “persons perceived as members of relatively victimized groups at the expense of other innocent individuals,” id.

None of the opinions that emerged from Bakke defined “societal discrimination.” Nor has the Court defined it since. Cf. Croson, 488 U.S. 469; Wygant, 476 U.S. 274. But it has placed beyond the scope of constitutionally permissible remedies a range of actions taken by state actors to redress the cumulative effects of past discrimination. Thus, for example, in Wygant the Court disapproved a school board's race-based layoff policy that aimed to create a more diverse faculty, in order to have role models for minority students, in the absence of “some showing of prior discrimination by the governmental unit involved.” 476 U.S. at 274. Similarly, the Court in Croson rejected an ordinance adopted by the Richmond City Council that required set-asides to minority-owned businesses in part because findings by the City Council concerning the deep disparity between the share of contracts awarded minority-owned businesses and the size of Richmond's minority population were held insufficient. 488 U.S. at 501. The local government could act, the Court determined, only to “eradicate the effects of private discrimination within its own legislative jurisdiction.” Id. at 491-92.

At the same time, efforts to hold state and local institutions accountable for the consequences of their past discrimination have been hobbled by courts' determinations that the effects of such discrimination are too “attenuated” or “amorphous” to justify race-conscious remedies, and that racially segregated systems are the product of private choices, rather than state action, and, therefore, are not legally redressable. See, e.g., Freeman, 503 U.S. at 494-95; cf. Jenkins, 515 U.S. 70; (limiting federal courts' remedial authority in school desegregation cases); Dowell, 498 U.S. at 250-51 (Opinion of Marshall, Blackmun, and Stevens, JJ). (school board released from desegregation decree following period of compliance could adopt student assignment plan that resulted in reappearance of all-black schools in absence of a showing that decision to implement plan was intentionally discriminatory); Pasadena City Bd. of Educ. v. Spangler, 427 U.S. 424 (1976); Milliken, 418 U.S. 717; Belk v. Charlotte-Mecklenburg Bd. of Educ., 269 F.3d 305 (4 Cir. 2001); Manning v. Sch. Bd. of Hillsborough County, 244 F.3d 927 (11 Cir. 2001). These decisions have the effect of sanctioning a range of outcomes that originated with state and local actors and continue to perpetuate racial disadvantage. See, e.g., Dowell, 498 U.S. at 251 (dissenting opinion)(school board maintained original dual system by “exploiting residential segregation”).

The combined impact of the Court's Fourteenth Amendment jurisprudence has been to squeeze both ends against the middle — shielding from constitutional scrutiny policies which, though neutral on their face, have a disproportionate adverse impact on African Americans, see, e.g., Village of Arlington Heights v. Metropolitan Hous. Auth., 429 U.S. 252 (1977); Washington v. Davis, 426 U.S. 229 (1976); cf. Personnel Admin'r of Mass. v. Feeney, 442 U.S. 256 (1979)(Equal Protection violation exists only if state policy was adopted because of, rather than merely in spite of, its disparate impact on suspect class); Rodriguez, 411 U.S. 1 (state method of financing education through property taxes held not to violate Equal Protection Clause despite significant adverse impact on poor children), while at the same time barring affirmative measures taken to alleviate the impact of systemic racial inequality, see Croson, 488 U.S. 469; Wygant, 476 U.S. 274; Bakke, 438 U.S. 265.

It is ironic, moreover, that the Fourteenth Amendment has been interpreted to hamstring voluntary state efforts to compensate for past discrimination, considering that state actors have been the most determined to frustrate the mandate of Brown. Well after the Court's decision in Brown, Southern states continued their vocal opposition to measures to ensure black equality, see, e.g., Dowell, 498 U.S. at 252-56 (Marshall, J., dissenting) (describing efforts by Oklahoma school authorities to evade Brown's dictates); Cooper v. Aaron, 358 U.S. 1, 11 (1958) (Arkansas); Holmes v. Danner, 191 F. Supp. 394 (M.D. Ga. 1961)(black candidates categorically excluded from University of Georgia on basis of race), and vestiges of these dual systems have persisted decades after Brown was decided. See United States v. Fordice, 505 U.S. 717 (1992); Knight v. Alabama, 14 F.3d 1534 (11 Cir. 1994). Massive campaigns to limit the rights of African Americans also existed in Northern states. See Bakke, 438 U.S. at 393-94 (Marshall, J. concurring in part, dissenting in part). Thus, it is inconceivable that state actors should be barred from taking voluntary, racesensitive measures to eliminate vestiges of their earlier intransigence. See Adarand Constructors, Inc. v. Peña, 515 U.S. 200, 243 (1995) (Stevens, J., dissenting) (“There is no moral or constitutional equivalence between a policy that is designed to perpetuate a caste system and one that seeks to eradicate racial subordination.”).

The history of racial caste in this country further calls into question the appropriateness of the Court's decisions to limit the constitutional authority of state and local actors to remedy pervasive racial disadvantage. Although the Court has determined that the rights created by the Fourteenth Amendment “are, by its terms, guaranteed to the individual” and “are personal rights,” Bakke, 438 U.S. at 289, the oppression of African Americans has been distinctly groupbased. As Justice Marshall observed in his Bakke opinion:

[I]t is more than a little ironic that, after several hundred years of class-based discrimination against Negroes, the Court is unwilling to hold that a class-based remedy for that discrimination is permissible. [This] ignores the fact that for several hundred years Negroes have been discriminated against, not as individuals, but rather solely because of the color of their skins.

Id. at 400. Justice Marshall's observation is as relevant today as it was twenty-five years ago when Bakke was decided. See, e.g., Freeman, 503 U.S. at 490; Grutter v. Bollinger, 288 F.3d 732,765 (2002) (opinion of Clay, J., concurring). This country has made remarkable strides toward realizing the promise of the Fourteenth Amendment, but it has yet to reach that goal. See Croson, 488 U.S. at 561-62 (Blackmun, J., dissenting) (expressing confidence that the Court would again do its best to fulfill the promises of the Constitution). Until that time, race-sensitive policies that take into account the unique experiences and opportunities of African Americans are both necessary and appropriate.

B. A Principal Purpose of the Fourteenth Amendment Was to Constitutionalize Race-Conscious Remedies

The legislative history of the Fourteenth Amendment establishes that one of its chief objectives was to secure the constitutionality of race-conscious legislation enacted by the Thirty-ninth Congress. This Court should not, therefore, interpret this Amendment to bar the very kinds of race-specific remedial measures it was designed to authorize and legitimate.

Following the Civil War, Congress proposed a series of race-specific social welfare laws and programs specifically targeting blacks for special assistance. Many of these programs were intended to benefit all blacks — not just recently freed slaves — often to the exclusion of whites. The distinctions made within such programs on the basis of race were neither inadvertent nor unopposed; on the contrary (see the description of the legislative history contained in Appendix “A” to this Brief), they were debated and enacted in the face of opposition to the very idea of race-conscious programs by those who perceived such measures as unfair to whites.

It was against the backdrop of the affirmative remedial measures that the Thirty-ninth Congress concomitantly fashioned, debated, and approved the Fourteenth Amendment. Virtually all of the members who supported the Amendment also voted in favor of the Freedmen's Bureau legislation. The Amendment's proponents viewed the 1866 Freedmen's Bureau bill to be precisely the kind of measure for which the Amendment would provide clear constitutional authority. Therefore, the original understanding of the Fourteenth Amendment supports a broad remedial consideration of race and cannot provide the basis for striking down state-sponsored policies conceived to improve the conditions of blacks.