Jim Crow's Long Goodbye
Chin, Gabriel J., Constitutional Commentary
Most judicial discussions of affirmative action and racial justice are unsatisfying because they omit a fundamental category of evidence: Information which would provide a basis for evaluating the scope of Jim Crow and its systematic consequences. Some assessment of the entirety of the institution is necessary to have an informed view of whether Jim Crow has been eliminated. While there is much scholarship, legislative history and jurisprudence about particular issues such as school segregation or racial disenfranchisement, especially at specific times and places, there is apparently no source which makes it possible to analyze the scope of racial discrimination through law and custom over time on a national level. There is no source, for example, identifying all of the school systems in the United States that were segregated by law or custom, no reference listing even the largest governmental agencies and corporations known to have practiced formal racial discrimination in employment.
The absence of systematic factual information and the consequent necessity of over-reliance on intuition are significant because the Supreme Court and its justices often explore the question of whether it is time to declare that they have put America's race problem behind them. In exploring these questions, the justices seem to believe that a level playing field is both important and legally significant.
In Grutter v. Bollinger, (1) a majority of the Court concluded that the promised land had not yet been reached. The majority approved an affirmative action program at the University of Michigan Law School; in a series of opinions, every member of the Court addressed the question of when affirmative action would be unnecessary. Justice O'Connor's opinion for the majority noted that:
It has been 25 years since Justice Powell first approved the use of race to further an interest in student body diversity in the context of public higher education. Since that time, the number of minority applicants with high grades and test scores has indeed increased.... We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today. (2)
Whatever the actual underlying rationale for this forecast, (3) the Court's prediction rests on the idea that within 25 years, a sufficiently racially diverse student body will be achieved through ordinary sorting and application processes. When that happens, the decades of debate about the permissibility of affirmative action and the rationales for it will become moot; affirmative action will not be justified as a means of remedying past discrimination, because it will have been remedied, and it will not be justified as a means of achieving diversity because diversity will result automatically, just as it does, for example, with respect to Asian Americans, Italian Americans, and those of the Jewish faith.
Although the perspectives of the concurring and dissenting opinions were quite different, they shared with the majority the explicit or implicit premises that race-neutrality is desirable, that the nation is moving towards racial fairness and that judges can tell when (or that) the nation has achieved equal opportunity. Justice Thomas's dissent quoted Frederick Douglas, who argued for nothing more or less than equitable treatment: "'What I ask for the negro is not benevolence, not pity, not sympathy, but simply justice.'" (4)
Justice Ginsburg argued that the legacy of past discrimination was too weighty either to declare victory now, or even to establish any particular time limit:
As lower school education in minority communities improves, an increase [in minority students with high grades and test scores] may be anticipated. From today's vantage point, one may hope, but not firmly forecast, that over the next generation's span, progress toward nondiscrimination and genuinely equal opportunity will make it safe to sunset affirmative action. …