Racial Integration as a Compelling Interest
Anderson, Elizabeth S., Constitutional Commentary
The premise of this symposium is that the principle and ideal developed in Brown v. Board of Education (2) and its successor cases lie at the heart of the rationale for affirmative action in higher education. The principle of the school desegregation cases is that racial segregation is an injustice that demands remediation. The ideal of the school desegregation cases is that racial integration is a positive good, without which "the dream of one Nation, indivisible" (3) cannot be realized. Both the principle and the ideal make racial integration a compelling interest. The Supreme Court recognized these claims in Grutter v. Bollinger. However, it failed to take full advantage of them. It thereby failed to answer crucial questions that must be answered by policies subject to strict scrutiny. In this essay, I shall display the links tying Grutter to Brown, discuss the vulnerabilities of Grutter in the absence of an explicit grounding in Brown, and demonstrate how the affirmative action policy upheld in Grutter, when explicitly grounded in Brown, survives strict scrutiny. To understand this argument, it is helpful first to explain the integrationist perspective that underlies it.
I. THE CONTINUING CAUSES OF BLACK DISADVANTAGE
The integrationist perspective begins with a diagnosis of the causal mechanisms that continue to systematically disadvantage blacks. (4) Sixty years after Brown declared state-sponsored racial segregation unconstitutional, and fifty years after the Civil Rights Act of 1964 banned racial discrimination in employment, blacks remain seriously disadvantaged on nearly every measure of well-being. (5) Given that discrimination and overt hostility toward blacks have declined since these landmark legal events, what continues to keep blacks back? Two stubborn legacies of white supremacy play pivotal roles in sustaining black disadvantage: segregation and racial stigma.
Residential segregation is the norm for blacks of all socioeconomic classes in the United States. (6) Segregation of neighborhoods leads to segregation of public schools--levels of which increased in the 1990s. (7) Jobs, too, tend to be racially segregated. (8) Black segregation from the mainstream has profound socioeconomic consequences. It isolates blacks from the predominantly white informal social networks that govern access to economic opportunities. It confines blacks to regions experiencing severe job decline, without adequate means of transportation to the white suburbs where jobs are being created. (9) It deprives blacks of investment opportunities, because their homes do not appreciate in value as white suburban homes do. (10) Lack of housing appreciation, in turn, undermines their access to the credit needed to start businesses. (11) Segregation multiplies and spreads the effects of employment discrimination, by filling blacks' social networks with people who have been similarly shut out of job opportunities. It concentrates and thereby multiplies poverty, exclusion, and disadvantage. Concentrated disadvantage reduces the tax base while increasing the demands on public services in cities where blacks live, resulting in higher tax burdens for poorer services--especially, worse schools--than what whites enjoy. (12) Segregation also impedes the formation of cross-racial political coalitions, by ensuring that public services devoted to black areas will have no spillover benefits for other groups. (13) These consequences of de facto segregation affect middle class as well as poor blacks. (14)
A second broad cause of continuing black disadvantage is racial stigma--habits of racial classification, perception generalization, and interpretation, and modes of identification that mark blacks as unworthy, undeserving, pathological, and alien--not fully "us." (15) Slavery constituted blacks as a dishonored race; Jim Crow branded them as an untouchable caste. Although the overt hostility of such "old-fashioned" racism has waned, it has left behind subtler forms of systematic bias against blacks, residing more in cognitive than affective mechanisms, more unconscious than willingly avowed as such. …