Abstract

Excerpted From: Larry J. Pittman, The Supreme Court's Erroneous Equal Protection Clause Analysis: Societal Discrimination, The Harvard College Decision as the New Plessy v. Ferguson-lite, and the Thirteenth Amendment, 57 Creighton Law Review 189 (April, 2024) (366 Footnotes) (Full Document Requested)

The Court's opinion in Harvard College is the new Plessy v. Ferguson because it will create, or continue, a racial caste system in higher education institutions (and probably in many other institutions, industries, and jobs) where white people, as a group, will continue to benefit from the various privileges that they have obtained through hundreds of years of slavery and post-slavery racial discrimination against Black people and some other minority groups.

No one should seriously disagree with the conclusion that in the United States, on average, there are substantial disparities between white Americans and “other” Americans, including African Americans, Black Americans, Hispanics, and other minority groups. These disparities exist in the social, economic, and political statuses of white Americans and some of these minority groups, including in the wealth, health, and political opportunities that white Americans and some of these minority groups possess. These disparities affect each aspect of Black people's, and some other minorities', lives in the United States, including the educational opportunities of Black people and some other minority groups. College will ensure the continuation of many of these disparities for generations to come.

At the end of his concurring in part and dissenting opinion in the University of California v. Bakke, Justice Marshall made the above-quoted statement, appearing under the title of this Article. If he were alive today, he would probably add Harvard College to the vicious cycle of Black people's progress in America--one step forward and two steps backward.

Because of the Supreme Court's precedents that limit the use of race-conscious measures in governmental programs, and in some private programs, this country continues to be one in which, on average, white supremacy reigns. As a matter of fact, this white supremacy is widely accepted by both right-wing conservatives and left-leaning progressives, despite protestations to the contrary. And it will take a multiple-level approach to alleviate a substantial amount of this white supremancy, including legal challenges before the Supreme Court and lower courts, congressional enactments of much-needed remedial measures, and political action and protest by an engaged populace. One of the monsters that needs taming is societal discrimination. But the Supreme Court has decided to protect societal discrimination by not allowing state governments and their higher education institutions to use race-conscious measures to remedy this type of racial discrimination--which will lead to a continuation of pervasive disparities between white Americans and Black Americans, and some other minority groups.

Section II discusses societal discrimination and some of its harmful, present-day effects. Section III analyzes the failure of the Court to accept societal discrimination as a compelling interest for the use of race-conscious measures and offers the conclusion that a governmental entity can use race-conscious measures to prevent it from becoming a “passive participant” in the continuation of that societal discrimination. Section IV offers a detailed discussion of the majority and dissenting opinions in Harvard College and concludes that the Court wrongly decided the case and that its opinion will assist in the continued subjugation of Black people and some other minority groups. Section V returns to a discussion of societal discrimination and offers a possible way in which state institutions can use it as a justification for applying race-conscious measures, and how state institutions can use race-conscious measures to remedy their own acts of past and present racial discrimination. Lastly, this section discusses the Thirteenth Amendment and invites Congress to use its Section 2 authority to enact laws to eradicate the present-day effects and racial disparities stemming from slavery and post-slavery racial discrimination in this country, especially the effects that deny Black people and some other people of color the equal educational opportunities that they deserve.

[. . .]

The Court's decision that the eradication of societal discrimination is not a compelling interest is a tool that allows the continuation of a racial caste system in this country. Chief Justice Roberts's majority opinion in Harvard College employs that tool to arguably end the use of race-conscious measures in colleges' and universities' admissions processes. This Article offers several suggestions that higher education institutions can use--in the words of Justice O'Connor in Croson avoid being a “passive participant” in the continuation of the vast racial disparities that exist in the availability of educational opportunities in this country. But, ultimately, Congress is the only force that can counterbalance the Supreme Court, and it should do so by considering and adopting the measures discussed in the last section of this Article. And its legislative actions should be premised on its Section 2 authority under the Thirteenth Amendment. This will allow Congress to return to this country's “original sin” to correct that which it did not do, but should have done, to protect the former slaves and their descendants after the Thirteenth Amendment freed them. Full stop.

Professor of Law and Leonard F. Melvin, Jr. Lecturer in Law, University of Mississippi School of Law. BBA, 1983, University of Mississippi. JD, 1986, University of Mississippi School of Law. LLM, 1992, Harvard Law School.