University Times

Law Dean William "Chip" Carter

For Americans who believe government still has a role to play in righting past and current discrimination, “there is good historical reason to question whether the Supreme Court should be the final arbiter on these divisive issues,” School of Law Dean William M. “Chip” Carter told a standing-room-only crowd on Jan. 30.

Carter was the first lecturer of the Reed Smith spring 2013 speaker series in the School of Social Work’s Center on Race and Social Problems.

Affirmative action “is by no means a settled legal issue,” Carter said. “The arc of the court’s jurisprudence has been to restrict those measures” and he believes the affirmative-action case set for a Supreme Court decision in May — a college-admissions program dispute called Fisher v. the University of Texas-Austin — will not reverse the court’s recent trends.

“The concept of affirmative action of course as traditionally enacted has been grounded in the notion that the legacy of slavery, combined with modern-day discrimination and inequality imposed on people of color, justifies the government’s positive consideration of race in some circumstances,” he said. The rationales for affirmative action have been to effect remediation — redressing social inequality — and create more diversity, which generally is believed to enhance the conditions and performance of many institutions, from the workplace to the classroom.

“We are a country that had, as Condoleezza Rice originally said, a birth defect in the form of American slavery,” he said. “We have spent centuries seeking to correct the injustices that were wrought by slavery, Jim Crow and subsequent discrimination, and we should not be too quick to assume the government’s goodwill when it today says it is using race for positive purposes.”

Only in the two decades before the 1978 case Regents of the University of California v. Bakke did the United States see a progressive Supreme Court ready to use its powers to further racial equality, he said. In more recent decades the rationales for affirmative action have been diluted and increasingly dismissed, Carter asserted.

In Bakke, the Supreme Court ruled against a medical-school admissions diversity program that had set aside a number of seats for underserved groups. The justices said it was not permitted under the Constitution’s 14th Amendment, known as the equal protection clause: “No state shall … deny to any person within its jurisdiction the equal protection of the laws.”

“The plurality of the court believed that an institution, if it is pursuing remediation — that is, seeking to level the playing field, if you will — can only go so far to remedy general societal discrimination,” Carter said about the Bakke case. In particular, he added, the court ruled that large institutions such as schools and governments “cannot consider race in order to correct generalized societal discrimination.”

Since then, using the same legal reasoning, the Supreme Court has ruled against a Richmond law that gave city contract slots to those with minority subcontractors; a similarly aimed federal contracting law, and a 2003 University of Michigan admissions practice that gave extra points to underrepresented minorities.

That same year, however, saw another case against the University of Michigan, Grutter v. Bollinger, that seemed to give Supreme Court favor to a new kind of affirmative action. Michigan’s law-school admissions program used a broad review of each applicant’s file, considering GPA but also athletic ability, status as a possible legacy admission and race, among many factors.

“The nature of the program was different,” said Carter. “It was indeed a flexible, holistic review that treated each individual file as an individual rather than a quota or a set-aside. And it considered race as one factor in the analysis, not the determining factor.”

In upholding the Michigan law school’s approach, the court indicated that “there is something important and different and special, perhaps, about the mission of higher education that makes diversity a particularly unique value in that field,” Carter said. “[It] was definitely not a ringing endorsement of all these other kinds of affirmative action programs. … In essence, the opinion reads as a ticket for that train only …”

Today, some scholars and a majority of the Supreme Court justices, he said, believe that America has entered a post-racial society in which remediation measures such as affirmative action “are not only unnecessary … but are in fact counterproductive because of the divisiveness that they generate. If race is no longer the problem, to quote one of the justices, then race can no longer be the solution. The way to get beyond discrimination on the basis of race, in the words of Chief Justice [John] Roberts, is to stop discriminating on the basis of race. So, under the post-racial world view, a government program that seeks to level the playing field is constitutionally and morally equivalent to a government program that seeks to subjugate racial minorities or other historically disenfranchised groups.”

There is plenty of evidence that America is not quite post-racial, he added, citing statistics on disproportionately higher levels of poverty, high-school dropouts and incarceration, and lower levels of earnings and familial wealth, among African Americans compared to whites.

Carter also disputed the validity of Constitutional originalism as a credible judicial philosophy. Originalism is the idea that judges “are bound to follow either the subjective intent or the objective evidence of intent of the framers of the Constitution,” he said. Originalists contend that the Constitution mandates all laws be colorblind.

“The clause is not the equal treatment clause, it’s the equal protection clause,” he said. Its authors “understood that unequal starting points may require different kinds of protection.”

Carter said this emphasis on pure colorblindness in the law cannot be justified by the arguments of civil-rights leaders — not even Rev. Martin Luther King, Jr.’s most famous remark, “I have a dream that my four little children will one day live in a nation where they will not be judged by the color of their skin, but by the content of their character.” Saying legal remedies to past discrimination are now illegal because society needs to be colorblind “is profoundly mistaken. That is not what they said, that is not what they believed, that is not what they thought, that is not what they advocated, that is not what they pursued … and the historical record demonstrates that quite clearly.

“What’s going on here is that the court believes that part of its role … is facilitating social cohesion,” Carter contended. “If that is part of the court’s mandate then, then it makes sense … that the Supreme Court as the arbiter of the law would declare illegal those measures that they believe drive us apart.”

Not that Carter believes even divisive laws need some sort of court remedy simply to bring members of society closer. And in the Supreme Court recently, he said, “You see a high commitment to social cohesion and avoiding divisiveness when it comes to measures that are putatively aimed at improving the lives of people of color. You see far less concern when the court is reviewing measures that impact negatively upon people of color.”

When Jackson, Mississippi, was ordered to desegregate its public facilities in the mid-1970s, the city agreed to integrate all of them — except for its swimming pools. Instead of integrating its pools, Jackson simply closed them all. The implication, to black people, was that they were somehow unfit to share those sorts of facilities with whites. But when the Supreme Court got the case, they did not rule that social cohesion was a paramount concern. Instead, Carter said, “the courts said … the meaning of government action does not matter. What matters are the formal effects of the government actions. And here everyone is being treated equally, because the pools are not available to anyone. Case done.”

In May, the Supreme Court is set to rule in Fisher v. the University of Texas-Austin. By the mid-1990s, the state of Texas had stopped employing affirmative action as a remedy in college admissions, due to another lawsuit. Instead, the state adopted a program that guaranteed public university admission to anyone who graduated in the top 10 percent of his or her high-school class.

Seeing that this had brought diversity to some of its programs but not all, the University of Texas-Austin added an internal admission review similar to the one that had passed Supreme Court muster in the Grutter case: a holistic review of each applicant’s file, in which race was but one factor.

Several disappointed applicants sued. Carter expects five of the justices to vote in favor of the plaintiffs, especially because Justices Samuel A. Alito, Clarence Thomas, Antonin Scalia, John G. Roberts and Anthony Kennedy “have never, ever, voted to uphold an affirmative action program”; Kennedy was even a dissenter in the Grutter case, he points out. “And that’s going to have reverberations throughout higher education.

“If we are looking for a repository in which to place our Constitutional faith in an institution to advance racial equality,” Carter concluded, “I would humbly suggest that the court might need to be cautious about assuming that it is the most appropriate place. Debates about social meaning are best resolved through the democratic process.”

If you believe in a world still seeking racial justice, he said, “vote in people who will enact policies that are consistent with that worldview.”

—Marty Levine