The following contribution to our Fisher symposium comes from Inimai Chettiar, the Director of the Justice Program at the Brennan Center for Justice at New York University School of Law. The Brennan Center filed an amicus brief in Fisher v. University of Texas along with the League of Women Voters.

Fisher v. University of Texas perfectly demonstrates how a constitutional jurisprudence divorced from reality and history can make the Supreme Court turn logic into a pretzel. Next month the Court has the opportunity to allow universities to use race explicitly to create genuine equal opportunity. Or, it can perpetuate the farce that the Equal Protection Clause and today’s society are colorblind. Unfortunately, since the Court’s modern jurisprudence overlooks the true purpose of the Equal Protection Clause and the reality of structural bias, the latter may be an easier path.

It is absurd to argue that the Equal Protection Clause does not support race-conscious college admissions. Congress drafted the Fourteenth Amendment, which was ratified in 1868, specifically to redress the wrongs of slavery, an institution based on the systemic subordination of people based on skin color. The Amendment was explicitly intended to allow the government to set race-based policies. Reconstruction-era legislators passed many such measures, such as the Freedmen’s Bureau. Almost a century later, in Brown v. Board of Education, the Court ruled that the government must end unequal application of the law and has an affirmative constitutional obligation to end racial disparities in schools. In the 1960s, “affirmative action” was initiated to provide “compensatory justice” to redress the historical oppression of African Americans and other racial minorities.

Unfortunately, since Brown the Court has repeatedly restricted government’s tools to promote integration and racial equality. Equal protection has been turned upside down, protecting white Americans at the expense of people of color. For example, in 1974 in Milliken v. Bradley, the Court reversed a lower court’s desegregation plan for Detroit and its suburbs, despite the Sixth Circuit’s warning that it would be “opening a way to nullify Brown.” Four years later, in Regents of University of California v. Bakke, the Court struck down a medical school’s policy to reserve a set number of slots for people of color. In his controlling opinion, Justice Lewis Powell missed the larger intent of the equal protection clause and coated it with an unnecessary layer of complexity: Absent a specific history of intentional discrimination, a university can constitutionally use race-conscious admissions only to promote “diversity” among the student body, but not to remedy broader inequality. In 2003, Justice Sandra Day O’Connor relied on Powell’s diversity rationale when deciding Grutter v. Bollinger, which upheld the University of Michigan Law School’s use of race as one factor among many in admissions decisions. Yet, because it is practically impossible to rip “diversity” from its historical context, this has left equal protection jurisprudence in a tortured form.

Less than a decade after Grutter, the Court is now revisiting the law well-settled in Grutter. The current challenge in Fisher involves undergraduate admissions at the University of Texas at Austin (UT Austin). UT Austin awards eighty-five percent of its freshman slots to students in the top ten percent of their high school class. The remaining fifteen percent of the class is reserved for students evaluated on a “holistic” basis, which considers academic factors, leadership skills, extracurricular activities, work history, family background – and race. These applicants are admitted based on the totality of their lives to foster a diverse student body. UT Austin has followed Grutter’s instructions to the letter.

Simply because these policies have brought some people of color some progress does not mean society is now color-blind and equal treatment for all prevails. The idea that today’s society is now “post-racial’ is a convenient fiction. Empirical research has found repeatedly that people of color are underrepresented in institutions of higher education, hold a smaller percentage of political and private-sector leadership positions, have poorer health outcomes and lower income, and are disproportionately arrested and imprisoned compared with white Americans. The fact that this litany even has to be cited shows how unmoored from reality our notion of equality has become.

At root, what has created this confused jurisprudence is the Court’s underlying definition of “equal” treatment. The modern American definition of “equality” stems from Aristotle’s theory that “like cases should be treated in a like manner” and “unlike cases should be treated in an unlike manner.” But as pioneering scholar Catharine MacKinnon has noted, this definition fails to recognize that “unlike cases” can still be equal. Cultural, gender, and racial norms and experiences create different people – all still of equal value – who enhance society because of their “unlike” attributes. Just because a person of color may bring different strengths to university life does not mean he or she is not of equal value as a white student. To argue the opposite is to impose a sterile, one-dimensional value on human beings.

Critical race legal theorist Derrick Bell pointed out that legal, societal, and educational “norms” overlook women and people of color. While to critics it may appear that these constituencies seek an “unfair advantage” – especially in the context of higher education admissions — all they seek is fair consideration in the first place. In fact, this dynamic is present in the debate about critical race theory itself. Judge Richard Posner has criticized critical race theorists for using narrative and allegory. Posner argues that, “by repudiating reasoned argumentation, the storytellers reinforce stereotypes about the intellectual capacities of nonwhites.” But the very notion that “reasoned argumentation” is somehow intellectually superior to narrative and allegory to explain legal theory is the product of a racially biased norm. (It appears Posner also forgot that Plato – the father of Western philosophy – wrote in allegory.) Our entire system of education and legal norms was built by and for those in power - white heterosexual men of privilege. Outsiders must conform to these supposedly “objective” academic measurements, or else be branded as lacking sufficient intelligence. But when the very instrument for determining who meets certain criteria is itself biased in favor of those in power, any assertions of objectivity are false.

It is this reality that modern equal protection jurisprudence misses: racial preference for white Americans is already built into the fabric of the educational system, law, and society. So, for example, a teacher who held Posner’s beliefs may give lower grades to students of color who use a narrative explanation and higher grades to white students who have internalized the traditional western norms of writing because he considers the latter a “better” form of writing. Academic grading is itself biased. It is not a race-neutral judgment – especially given the disparities in educational resources in communities of color versus white communities, even after controlling for income. Different cultural norms and forms of expression, as well as non-English languages spoken at home, also affect student performance. All of these differences affect the academic portion of a student’s application. This is exactly why selective institutions such as the University of Michigan and UT Austin have turned to holistic evaluations as a part of their admissions process.

Ending de jure segregation does not, in and of itself, achieve racial equality. Despite the Court’s tortured interpretation to create a color-blind Equal Protection Clause, remedying racial disparities is still this nation’s ongoing constitutional mandate. Racial inequality will actually become more intractable if the Court decides that the Constitution prevents the government from reducing discrimination.

Against the odds, let’s hope that the Roberts Court – and Justice Kennedy in particular – neither blithely ignores the precedent of Grutter and the cases before it, nor the historical and contemporary realities of race.

Posted in Featured, Fisher Symposium

Recommended Citation: Inimai Chettiar, Online Fisher symposium: The limits of an Aristotelian constitutional jurisprudence, SCOTUSblog (Sep. 12, 2012, 12:30 PM),