The brief of Amici Curiae on Behalf of a Committee of Concerned Black Graduates of ABA Accredited Law Schools in Grutter v. Bollinger was written so as to intervene and to assist in the refraining of the public debate surrounding minority admissions programs in institutions of higher education

Harris, Luke Charles

English

University of Michigan School of Law

Michigan Journal of Race and Law Volume 92003 Prologue: Brief of Amici Curiae on Behalf of a Committee of Concerned Black Graduates of ABA Accredited Law Schools: Vicky L. Beasley, Devon W. Carbado, Tasha L. Cooper, Kimberlé Crenshaw, Luke Charles Harris, Shavar Jeffries, Sidney Majalya, Wanda R. Stansbury, Jory Steele, Et Al., In Support of Respondents Luke Charles Harris Vassar College Follow this and additional works at: https://repository.law.umich.edu/mjrl  Part of the Constitutional Law Commons, Law and Race Commons, Legal Education Commons, and the Litigation Commons Recommended Citation Luke C. Harris, Prologue: Brief of Amici Curiae on Behalf of a Committee of Concerned Black Graduates of ABA Accredited Law Schools: Vicky L. Beasley, Devon W. Carbado, Tasha L. Cooper, Kimberlé Crenshaw, Luke Charles Harris, Shavar Jeffries, Sidney Majalya, Wanda R. Stansbury, Jory Steele, Et Al., In Support of Respondents, 9 MICH. J. RACE & L. 1 (2003). Available at: https://repository.law.umich.edu/mjrl/vol9/iss1/1  This Prologue is brought to you for free and open access by the Journals at University of Michigan Law School Scholarship Repository. It has been accepted for inclusion in Michigan Journal of Race and Law by an authorized editor of University of Michigan Law School Scholarship Repository. For more information, please contact mlaw.repository@umich.edu. PROLOGUEBRIEF OF AMICI CURIAE ON BEHALF OF ACOMMITTEE OF CONCERNED BLACK GRADUATESOF ABA ACCREDITED LAW SCHOOLS:VICKY L. BEASLEY, DEVON W CARBADO,TASHA L. COOPER, KIMBERLE CRENSHAW,LUKE CHARLES HARRIS, SHAVARJEFFRIES,SIDNEY MAJALYA,WANDA R. STANSBURY,JORY STEELE, ET AL.,IN SUPPORT OF RESPONDENTStLuke Charles Harris*The brief of Amici Curiae on Behalf of a Committee of ConcernedBlack Graduates of ABA Accredited Law Schools in Grutter v. Bollinger'was written so as to intervene and to assist in the refraining of the publicdebate surrounding minority admissions programs in institutions ofhigher education.Some commentators and social justice advocates have celebrated theSupreme Court's decision in Grutter because it builds on Justice LouisPowell's opinion in Regents of the University of California v. Bakke.2 To besure, it does affirm and expand Justice Powell's use of the "diversity ration-ale" as a constitutional justification for affirmative action. In this respect,Grutter represents a serious loss to the opponents of affirmative action. Abroad range of conservative organizations had hoped that the court woulduse the Grutter decision to affirm the ideological triumph of a particularvision of colorblindness under the Fourteenth Amendment's Equal Pro-tection Clause. They hoped that, when there was no proof of intentionaldiscrimination, states would be forbidden from exposing and correctingracial disparities. They also hoped that the Court would constitutionalizea theoretical framework that normalizes an extraordinarily inegalitariant Wanda Stansbury and Vicky L. Beasley originated the idea to bring this team ofacademics and practicing attorneys together to author this brief. Without their wisdom,patience, and extraordinary logistical skills, this project could never have been successfullycompleted.* Chairman, Political Science Department, Vassar College; B.A. 1973, St. Joseph'sCollege; J.D. 1977, L.L.M 1980, Yale Law School; Ph.D. 1995, Princeton University. Iwould like to express my deep appreciation to Professor Kimberl6 Crenshaw, a co-authorof the brief, whose ideas and assistance helped to shape the contours of this prologue.1. 123 S. Ct. 2325 (2003).2. 438 U.S. 265 (1978).Michigan Journal of Race & Lawstatus quo, not only with respect to racial minority participation in highereducation, but in many other spheres of American life as well. In the end,the Court did no such thing. It in no way endorsed a vision of colorblindneutrality. Quite to the contrary, it proclaimed that states could both takeofficial notice of and act to address patterns of racial exclusion.For these reasons, the Grutter decision should be celebrated. At thesame time, however, we must be careful not to lose sight of the dangerinherent in the current trajectory of equal protection jurisprudence. Thisdanger has to be uncovered and confronted in ways that resonate deeplyboth with advocates of social justice and with the general public. In thisregard, we must consider what Grutter failed to accomplish. Most impor-tantly, it failed to connect the rationale for affirmative action policies tohistorical and contemporary forms of racism. In this sense, Grutter, likethe Bakke decision before it, represents only a modest victory for the pro-ponents of affirmative action. Unfortunately, the task of uncovering theinadequacies of Bakke was largely ignored by the civil rights communityin favor of undertaking tremendous efforts to sanction the use of affirma-tive action programs within the narrow diversity framework. In some veryimportant respects, the civil rights community simply allowed issues ofdistributive justice, unwarranted institutional exclusion, and communityinterest to be taken off the table. In the aftermath of Grutter, we must notrepeat this error.While civil rights advocates remained largely silent on these issues,conservative think tanks, researchers, grass roots activists, and lawyersworked hard to appropriate the language of the Civil Rights Movementto create a common sensibility about the apparent contradictions betweenaffirmative action policies and colorblind justice. They maintained that, asa general rule, the Equal Protection Clause compels us to ignore racialcategories in the formulation of state-sponsored public policies. Indeed,they effectively framed affirmative action as measures inimical to theAmerican vision of equality. We must boldly challenge and vigorouslycontest this misleading perspective. Our brief carefully reframes the termsof the affirmative action debate by placing contemporary remedial con-cerns rooted in problems of institutional discrimination at its center.Those concerns were not considered in the Grutter case.We contend thatremedying such problems will ultimately lead to more diverse environ-ments in different domains of American life, with all of their attendantbenefits. Diversity, then, remains a major component of our analysis. Weargue, however, that it represents a complementary justification for af-firmative action rather than the core justification for it.What then are the weaknesses of the diversity rationale? To beginwith, it only legitimizes affirmative action on the grounds of institutional[VOL. 9:1FALL 2003]diversity.' Thus, it casts into the shadows a variety of social justice argu-ments for affirmative action that focus on the problems faced by themembers of racial minority groups that continue to suffer the effects ofhistorical and ongoing forms of systemic discrimination. By not focusingon such concerns, the Bakke decision left open the implication that af-firmative action initiatives are inextricably bound to a process tainted by"reverse discrimination:' "preferential treatment," "unfairness to Whites"and "the stigmatizing effects of affirmative action on racial minorities"4These notions continue to dominate and distort the public perceptions ofthese programs to this day. Indeed, they are reflected in the Grutter deci-sion and oral arguments. Through our brief we hope to assist in therefraining of the national debate on these issues by introducing considera-tions that transcend, even as they incorporate, Justice Powell's diversityrationale in the Bakke case.At the heart of our argument is the notion that affirmative actionpolicies are not a matter of affording "preferential treatment" to theirbeneficiaries. Rather, we maintain that these initiatives represent nothingmore than an attempt to offer their beneficiaries a greater equality of op-portunity in a social context marked by pervasive inequalities: a context inwhich many institutional practices serve to impede a fair assessment of thecapabilities of the beneficiaries of these programs. Affirmative action pro-grams, then, are not simply a form of recompense for a history of slavery,apartheid, and racism. Nor are they merely tools for the diversification ofacademic environments. Instead, they are egalitarian measures designedprimarily to offset patterns of institutional discrimination in many differ-ent spheres of American life. Viewed from this perspective, the only"burden" that Whites face in the context of the use of affirmative actionpolicies in higher education is the loss of the expected privilege that ac-crues to them when admissions officials who overemphasize theimportance of traditional conceptions of meritocracy evaluate membersof racial minority groups unfairly. Not surprisingly, then, we are deeplyskeptical of perspectives on affirmative action that concentrate excessivelyon the perceived educational benefits of diversity for academic institutionsand too little on the unfair and unwarranted obstacles that confront mi-nority students seeking to attend these institutions.3. See Luke Charles Harris & Urna Narayan, Affirmative Action and the Myth of Pref-erential Treatment: A Transformative Critique of the Terms of the Affirmative Action Debate, 11HAv. BLACKLETTER LJ. 1 (1994); Luke Charles Harris & Ura Narayan, Affirmative Actionas Equalizing Opportunity: Challenging the Myth of "Preferential Treatment, in ETHICS IN PRAc-TICE:AN ANTHOLOGY 451 (Hugh LaFollette ed., 2nd ed. 2003).4. See Luke Charles Harris, Rethinking the Terms of the Affirmative Action Debate Es-tablished in the University of California v. Bakke Decision, in THE COLOR LINE: RACIAL ANDETHNIC INEQUALITY AND STRUGGLE FROM A GLOBAL PERSPECTIVE 133 (Gwen Moore et al.eds., 1999).PrologueMichigan Journal of Race & LawThis brief was also used to frame a series of discussions at the Afri-can American Policy Forum's (AAPF) two-day affirmative actionconference at Columbia Law School in March 2003. The conferencebrought together academics, policy advocates, lawyers, and media expertsto discuss Grutter and Gratz v. Bollinger' and the ongoing need for affirma-tive action policies to offhet institutional forms of discrimination in manyspheres of American life. Conference materials can be downloaded fromthe AAPF's website at www.aapf.org.5. 123 S. Ct. 2411 (2003).[VOL. 9:1

Prologue: Brief of Amici Curiae on Behalf of a Committee of Concerned Black Graduates of ABA Accredited Law Schools: Vicky L. Beasley, Devon W. Carbado, Tasha L. Cooper, Kimberlé Crenshaw, Luke Charles Harris, Shavar Jeffries, Sidney Majalya, Wanda R. Stansbury, Jory Steele, Et Al., In Support of Respondents

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