After Grutter V. Bollinger - Revisiting the Desegregation Era from the Perspective of the Post-Desegregation Era
Brown, Kevin D., Constitutional Commentary
In what Justice Scalia called the Supreme Court's "split double header" (1) in the summer of 2003, the Court upheld the affirmative action plan adopted by the University of Michigan Law School in Grutter v. Bollinger, (2) but rejected the plan adopted by the University of Michigan's College of Literature, Science and Arts in Gratz v. Bollinger. (3) With these opinions, the Supreme Court has resolved one of the last major issues hanging over from the Desegregation Era of American society. The beginning of the Desegregation Era can be said to have started with the unanimous 1954 Supreme Court opinion in Brown v. Board of Education. With subsequent decisions, the Court justified the liberal use of racial classifications to remedy the harms inflicted by discriminatory practices of the past. (4)
Over the past thirty years, however, the Court has been constraining the ability to use racially conscious governmental policies and practices to remedy the current effects of America's racial history. In the 1970s, for example, the Court restricted the use of racial classifications by government to remedy past discrimination by deciding that violations of the equal protection clause are only triggered by governmental actions motivated by discriminatory intent, not discriminatory effect. (5) The Supreme Court generally prohibited the implementation of cross-district school desegregation remedies in its 1974 Millken v Bradley (6) decision. The effect of this decision was to severely restrict the use of racial classifications to eliminate segregation in America's public schools. In the 1990s the Court rendered three opinions providing for the termination of school desegregation decrees. (7) In addition, the Court has rendered several opinions rejecting the use of racial classifications to foster awarding governmental contracts to minority companies, (8) maintaining the percentage of black school teachers to act as role models for black students, (9) and striking down the use of racial classifications of prospective voters in order to ensure the creation of congressional majority-minority legislative districts. (10) Thus, it is clear that with the dawn of the Twenty-First Century, the equal protection treatment of racial and ethnic conflicts has firmly moved into a Post-Desegregation phase.
In light of the Supreme Court's opinion in Grutter, which embraces the educational and other benefits that can be derived from exposing people to different perspectives and points of view, this comment will revisit Reverend (Dr.) Martin Luther King, Jr.'s I Have A Dream Speech delivered on the steps of the Lincoln Memorial on August 29, 1963. To the extent that there is one speech or one vision that captured what the time period known as the "Desegregation Era" was about, it was the I Have a Dream Speech. Thus, a reexamination of that speech is a way in which to reexamine the meaning, purposes and goals of the desegregation of American society from the vantage point of the Post-Desegregation Era.
Section I will revisit the Court's decisions in Grutter and Gratz, but it will pay particular attention to Justice O'Connor's opinion for the Court in Grutter. It will highlight the justifications that she provided for taking account of race and ethnicity in order to achieve a critical mass of underrepresented minorities with a history of discrimination. O'Connor notes in her opinion that among the benefits derived from the use of racial classifications is the fact that discussions are livelier more enlightening and interesting when students have the greatest possible variety of backgrounds.
Section II will then revisit Reverend (Dr.) King's I Have A Dream Speech. But taking its cue from Justice O'Connor's opinion about the benefits of presenting a variety of perspectives to discuss a given social phenomena, it will revisit the speech with the Post-Desegregation Awareness. The Post-Desegregation Awareness is a conscious awareness that racial or ethnic phenomena are not understood as separate isolated and unconnected incidents. …