The Dark Side of Grutter
Spann, Girardeau A., Constitutional Commentary
Liberals have generally cheered the Supreme Court's decision in Grutter v. Bollinger (1) as validating the continued use of affirmative action in the struggle against racial injustice. (2) But the Supreme Court's modern race cases rest on a misunderstanding of the nature of contemporary racial discrimination. From Brown, (3) to Bakke, (4) to Grutter, (5) the Court has advanced a color-blind conception of racial equality that treats race-conscious affirmative action as constitutionally suspect, because it deviates from an aspirational baseline of race neutrality that lies at the core of the equal protection clause. However, race neutrality is a hopelessly artificial concept in a Nation like ours, that continues to make race an operative factor in the allocation of nearly all significant societal resources. Rather, it is colorblind race neutrality that should be viewed as constitutionally suspect, because that is what now constitutes the culture's preferred form of racial discrimination. Contemporary "race neutrality" is simply a modern descendent of the more traditional forms of invidious discrimination that have been practiced in the United States since the Nation was founded. And the Supreme Court's current preference for race-neutrality over race-consciousness is a modern descendent of the Court's own tradition of complicity in racial discrimination.
Part II of this article describes the Supreme Court's current conception of racial discrimination, emphasizing the manner in which the Court has confused the concept of race neutrality with the concept of racial equality. Part III argues that the concept of race neutrality is constitutionally suspect, because it has now become a tool for discriminating against racial minorities. Part IV argues that the only way in which we are ever likely to remedy the systemic discrimination that continues to permeate American culture is by pursuing the precise racial balance goals that the Supreme Court has deemed to be unconstitutional. Part V concludes that the Supreme Court is once again impeding the Nation's progress toward racial equality, as it has done so many times in the past.
II. THE COURT'S CONCEPTION OF EQUALITY
The Supreme Court views racial equality as if it were largely synonymous with race neutrality. As a result, the Court treats all racial classifications as constitutionally suspect, and subjects them to strict scrutiny under the equal protection clause, whether they are invidious or benign. (6) The Court's preference for prospective neutrality has the effect of invalidating most uses of race-conscious affirmative action, which in turn makes it difficult to eliminate the existing inequalities that have been produced by centuries of prior discrimination. (7)
A. RACE NEUTRALITY
The Supreme Court's fondness for race neutrality is traceable to Brown v. Board of Education. (8) Brown invalidated the race-conscious, separate-but-equal regime of Plessy v. Ferguson, (9) holding that, in our racially stratified society, separate was "inherently unequal." (10) Brown, therefore, treated race-conscious governmental classifications as intrinsically objectionable, even if race was used in ways that were hypothetically "equal." But Brown also generated a logical dilemma. The Nation's long history of official discrimination left a legacy of existing inequalities that could not be remedied merely through the use of prospective race neutrality. Indeed, the ingrained and often unconscious racial attitudes that caused Brown to characterize racial segregation as inherently unequal meant that racial minorities could never make up for the considerable head start that whites had given themselves in the race for economic, political and social resources--unless whites were forced to slow down long enough for racial minorities to catch up. Therefore, the race-neutral society that Brown envisioned could come into existence only through use of the race-conscious means that Brown found objectionable. …