Law Offices of Bruce Fein

In the eyes of the law, there is only one race here: It is American

By Bruce Fein, Jan 22 2023

In twin pending cases, the United States Supreme Court is prepared to end the nation’s experiment with racial preferences that began in 1969 under President Richard Nixon’s Philadelphia affirmative action program in the construction industry. Students for Fair Admissions v. HarvardStudents for Fair Admissions v. University of North Carolina.

It is altogether fitting and proper that the Supreme Court should do this. Racial distinctions are odious to a free people. The American Declaration of Independence proclaims as a self-evident truth that “all men are created equal, that they are endowed by their creator with certain unalienable rights, that among these are life, liberty, and the pursuit of happiness.

The Constitution’s architects recognized that slavery contradicted justice, the end of civil society. Thomas Jefferson wrote in his sunset years, “I tremble for my country when I reflect that God is just; that his justice cannot sleep forever.”

Notwithstanding the Civil War Amendments, White Supremacy soon infected the South and much of the North after Reconstruction. In protesting the “separate-but-equal doctrine (which was always separate but never equal) in Plessy v. Ferguson (1896), Justice John Marshall Harlan thundered like a hammer on an anvil: “But in view of the constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. Our constitution is color-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law. The humblest is the peer of the most powerful. The law regards man as man, and takes no account of his surroundings or of his color when his civil rights as guarantied by the supreme law of the land are involved.” We sink or swim together under the Constitution.

In 1954, Plessy was virtually overruled in Brown v. Board of Education. Justice Harlan’s color-blind standard became constitutionally mandated. Martin Luther King’s memorable “I have a dream” speech in 1963 celebrated the content of character rather than skin color as the touchstone of judging or success. The following year, the Supreme Court in Anderson v. Martin prohibited the ballot identifications of candidates for public office by race as unconstitutional because they induced “racial prejudice at the polls.”

A color-blind mandate is not toothless. It means that a proven victim of racial discrimination is entitled to a remedy that undoes or compensates for the harm to the individual proximately caused by the racism.

But a fair opportunity to succeed on the merits unhandicapped by race was soon abandoned. Racial preferences for African Americans or Hispanics to punish whites for the odious racism of their ancestors became de rigueur, like visiting the sins of the parents on the children. The Supreme Court sustained their constitutionality in higher education in Regents of University of California v. Bakke (1978) and Grutter v. Bollinger (2003) on the unsubstantiated speculation that to the extent a campus is racially diverse, to that extent students will excel academically. In Grutter, Justice Sandra Day O’Connor naively surmised that the putative educational enrichment begotten by racial diversity would lapse after 25 years: “We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.”

Two decades after Gutter, racial preference program remain in high gear with no end in sight.

Racial preferences do not come near the horrors of slavery, lynching, disfranchisement, or other earmarks of White Supremacy during Jim Crow. But the Constitution prohibits all violations irrespective of the magnitude of the harm. The latter informs the remedy, but not liability.

Do not anticipate substantial protests over the Supreme Court’s embrace of color-blindness that ends racial preferences comparable to the uproar in the aftermath of its Dobbs ruling ending a constitutional right to an abortion. Who can fume at being judged by the content of their character and not the color of their skin?