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Now Accepting Article Submissions for 2016-17!

Whether one calls it modern day slavery or the new Jim Crow, mass incarceration represents the most recent dynamic mechanism by which the state exercises controls over black and brown bodies in the name of justice. The term encompasses  more than the wild racial disparities in police brutality, the school to prison pipeline, arrest rates, pretrial detention, conditions of incarceration, sentencing, and capital punishment; it describes a system in which criminal justice has evolved to control people of color. Harvard Journal on Racial & Ethnic Justice welcomes the submission of articles on the history, politics, economics, or theory behind race in law enforcement and the criminal justice system and the diverse ways in which it defines the lived experience of people of color.

JREJ accepts submissions on a rolling basis. Please send all submissions to hjrejsubmissions@gmail.com. In addition to the full text, authors should submit a current CV and an optional cover letter. Footnotes should conform to The Bluebook (20th ed. 2015). We look forward to hearing from you!

JREJ Hosts Spring Symposium

The Harvard Journal on Racial and Ethnic Justice (JREJ) is hosted its spring symposium, “The Legal Status of Racial Power: A Retrospective of ‘Whiteness as Property’” on Wednesday, April 8that 12 – 2PM. The event was located at Harvard Law School in Milstein West and featured presentations from Professors Cheryl Harris, Kimberlé Crenshaw, Devon Carbado and Jasleen Kohli.

 

 

JREJ - The Legal Status of Racial Power

Still Separate, Still Unequal

The Harvard Journal of Racial and Ethnic Justice (JREJ) recently published its first online volume. It consists of material first presented at JREJ’s Spring 2014 Symposium: “40 Years After Milliken: Remedying Racial Disparities in a ‘Post-Racial Society.’”  The 1974 Supreme Court case Milliken v. Bradley held that courts were not permitted to address public school segregation by incorporating into integration plans school districts that were not found to have engaged in “de jure” discrimination—even if such an inter-district remedy was the only way reverse the harm.  During the Milliken Symposium—and in longer pieces published in the online volume—scholars explored Milliken’s present-day relevance and discussed the difficulties of receiving redress for racial inequality in an era where discriminatory intent is nearly impossible to prove.

Associate Professor at Georgia State University College of Law Tanya Washington tracks the origins of the Supreme Court’s affirmative action jurisprudence in “Jurisprudential Ties that Blind: the Means to End Affirmative Action.” Washington interrogates the Court’s limited conception of racial discrimination—particularly its de jure-de facto distinction—and how this approach has sowed the seeds for our current moment, and a future in which all race-conscious affirmative action programs could be found constitutionally impermissible. Given this, she questions the capacity of color-blind affirmative action to ensure educational equity and racial diversity.

Professor at the University of Louisville Brandeis School of Law Cedric Merlin Powell lays out a wide-ranging critique of Milliken in his article, Milliken, ‘Neutral Principles,’ and Post-Racial Determinism.” Powell explains how the Supreme Court’s reinterpretation of Brown’s mandate and its adherence to a false neutrality in Milliken not only preserved status quo segregation, but ensured that courts would remain powerless in addressing it. The author also uses Justice Thurgood Marshall’s dissent in that case as providing the proper framework for deciding school desegregation cases.

Dr. Laura McNeal, Associate Professor of Law at the University of Louisville Brandeis School of Law, argues in “The Milliken Effect: Moral Exclusion Under the Guise of Equity,” that Milliken ushered in the demise of desegregation by engaging in “moral exclusion,” a “psychosocial orientation toward certain individuals or groups for whom justice principles or considerations of fairness and allocation of resources are not applicable.” Dr. McNeal posits that post-Milliken era cases have perpetuated educational inequality by upholding structural barriers to educational equity and deliberately ignoring contextual realities of race and poverty.  The author argues that ultimately, we must acknowledge the significance of race in education in order to counteract moral exclusion.

In “Implicit Injustice: Using Social Science to Combat Racism in the United States,” Equal Justice Society Co-Founder and President Eva Paterson and Berkeley Law Student Luke Edwards detail blacks’ historical and present-day battles for equality, within and outside of the law.  They explore unconscious bias in a host of contexts—most notably the criminal justice system—and how the use of social and mind sciences can help to counteract these problems to achieve equality in a “post-racial” America.

Addressing Implicit Bias Employment Discrimination: Is Litigation Enough?” focuses on the impact implicit bias has on racial discrimination, particularly in the context of employment. Labor and Employment Attorney Sabreena El-Amin tracks the history of employment discrimination in the United States and explores the costs and benefits of using litigation as a means for addressing the issue. The author argues that litigation should not be relied upon as the exclusive means for grappling with implicit bias in employment, offering instead a model that envisions non-profit organizations working together with private businesses seeking diverse talent.

Check back with the Harvard Journal on Racial and Ethnic Justice at hjrej.org for more information on how to order an electronic or print issue of our online volume.

Commentary on “Fisher” and the Future of Affirmative Action

Introduction

Nearly fifty years after eleven-year-old Linda Brown journeyed up the steps of the Supreme Court of the United States, seventeen-year-old Abigail Fisher took her place in front of the country’s most esteemed judicial bench. Fisher, too, argued for equal educational opportunities. But the similarities stop there. While Brown argued against Kansas’s segregated school system, Fisher found fault in being denied admission to the University of Texas at Austin. As a white Texas resident with a 3.59 GPA and an 1180 SAT score, she alleged that the University’s admissions policy discriminated against her on the basis of race.

The Fisher case follows a long line of Supreme Court precedent. Most relevant are three cornerstones of affirmative action jurisprudence: Regents of the Univ. of Cal. v. Bakke, which held unconstitutional the use of racial quota systems; Gratz v. Bollinger, which held unconstitutional the automatic awarding of points to certain racial groups in an admissions program; and Grutter v. Bollinger, which upheld the use of race as one of many “plus factors” in an admissions program that evaluated applicants on a variety of metrics.

Unlike the affirmative action plans at issue in the Court’s prior decisions, however, the University of Texas’s admissions plan is complicated by a measure adopted by the Texas State Legislature. That measure, the Top Ten Percent Law, grants automatic admission to each student in the top 10% of his graduating high school class. Never before had the Supreme Court heard a case in which the legislature enacted a race-neutral statute aimed at increasing minority enrollment in state universities.

First confronted with the challenge of evaluating Fisher’s claim, the District Court granted summary judgment to the University. The United States Court of Appeals for the Fifth Circuit then affirmed. With seven judges dissenting, the Court of Appeals denied Fisher’s request for rehearing en banc.

Shortly after the Court decided to hear Fisher’s case, advocates on both sides of the affirmative action debate began speculating on whether Fisher would mark the end of the Grutter era and signal the end of affirmative action in higher education. Many thought the decision would be dismissed for standing, insofar as Fisher ultimately graduated from another university. Still others believed that Justice Kagan’s recusal from the case would result in a 5-3 split on conservative-liberal lines in favor of striking down Grutter. But none could have predicted the opinion that Justice Kennedy would eventually deliver.

Without Saying Anything, the Court Said It All

Writing for the majority, Justice Kennedy’s opinion did nothing speculators believed it would. Kennedy neither upheld nor struck down the University’s admissions plan and Grutter came out of the court battle at least partially in tact. Instead, Kennedy remanded the case for further review on the basis that the Fifth Circuit had failed to use the correct standard of review.

Rather than applying strict scrutiny, the circuit court relied on bothGrutter and Bakke to give “due deference” to the “university’s educational judgment in developing diversity policies.” More simply, the Fifth Circuit had given deference to the University not only in its determination that diversity is essential to its educational mission, but also in its determination that the means chosen to attain diversity were narrowly tailored to the diversity goal. To do so in the second instance and to rely on the University’s good faith, according to Kennedy, was a mistake.

Although Kennedy’s opinion seems straightforward, a close reading of the Fifth Circuit’s decision in conjunction with Grutter reveals flaws in the reasoning on which it relies. At every step of the inquiry, the Fifth Circuit applied the very same strict scrutiny analysis as did the court in Grutter. Furthermore, the circuit court relied most heavily on comparisons to the program upheld in that decision. Even though it afforded deference, the circuit court determined through strict scrutiny that the University had designed a plan that ensured “each applicant is evaluated as an individual and not in a way that makes an applicant’s race or ethnicity the defining feature of his or her application.”

If Kennedy could find any fault in the Fifth Circuit’s analysis, it is that the circuit court relied on Grutter’s majority opinion as the basis for its decision. Kennedy’s restatement of Grutter reflects his own beliefs that the decision should have set a less deferential standard than it did. Dissenting in Grutter, Kennedy wrote:

“The Court confuses deference to a university’s definition of its education objective with deference to the implementation of this goal. In the context of university admissions the objective of racial diversity can be accepted based on empirical data known to us, but deference is not to be given with respect to the methods by which it is pursued. . . . The majority today refuses to be faithful to the settled principle of strict review designed to reflect these concerns.”

This statement clearly illustrates the difference between Grutter as Kennedy understood it then and Grutter as Kennedy would read it inFisher. His own statements acknowledge that Grutter allowed for deference at both phases of inquiry.Then Chief Justice Rehnquist’s dissenting opinion in Grutter, joined by Justices Scalia, Kennedy, and Thomas, reveals the same truth. He wrote, “Although the Court recites the language of our strict scrutiny analysis, its application of that review is unprecedented in its deference.”

O’Connor’s majority opinion acknowledged criticism from the dissent. “Contrary to Justice Kennedy’s assertions, we do not ‘abando[n] strict scrutiny.’ Rather . . . we adhere to Adarand’s teaching that the very purpose of strict scrutiny is to take such ‘relevant differences into account.’” The clear debate between the factions of the court show that Grutter’s holding stood for “giving a degree of deference to a university’s academic decision.”

Justice Ginsburg’s fireball of a dissent pointed out the same logical flaws, arguing that “the Court of Appeals has already completed [the strict scrutiny] inquiry, [with] its judgment[] trained on this Court’sBakke and Grutter pathmarkers.” She further rejected the idea that the Top Ten Percent Law should have any effect on the Court’s view of the University’s admissions policy, because “only an ostrich could regard the supposedly neutral alternatives as race unconscious.”

Ignoring precedent, Kennedy turned the Grutter dissents into theFisher majority, effectively rewriting Grutter’s strict scrutiny standard and silently overruling what could be called the most important decision to affirmative action proponents. Those that callFisher a punt or view it as a mere remand to apply strict scrutiny have failed to appreciate the craft behind the opinion.

Not only did Kennedy find some merit in the use of race-based admissions policies, but he also pulled in the reins on Grutter’s deference to universities in favor of a more demanding strict scrutiny analysis in the educational context. He effectively rewroteGrutter without writing anything. Therefore, it should come as no surprise that Kennedy was able to cull together a 7-1 majority comprised of two liberal proponents of affirmative action and two strong conservatives with the three conservative justices who dissented from Grutter’s deferential standard in the first instance.

What Fisher Might Mean for the Future

Refusing to reach the merits allowed the Court to reserve the question for a later date, leaving the status of affirmative action policies in a relative standstill. The public may not have to wait too long for answers, however. The Court will have its chance to address unresolved issues on affirmative action next term in Schuette v. Coalition to Defend Affirmative Action. The Court may very well have had Schuette in mind when it wrote the Fisher opinion; it granted cert. before Fisher’s oral arguments had even begun.

At issue in Schuette is Prop 2, an amendment to the Michigan Constitution that bans affirmative action programs in the state. In light of Fisher, Schuette may indeed signal the end to affirmative action. Fisher is in many ways a retreat from Grutter’s stronghold on affirmative action. And if Schuette’s ban is found constitutional, opponents of affirmative action will be able to legislate against it, avoiding the Grutter framework altogether. As Michigan Attorney General Bill Schuette says in his petition for cert., such a decision would affirm a state’s “right to accept this Court’s invitation inGrutter to bring an end to all race-based preferences.”

Until Then, The Debate Continues

Whether Fisher is viewed as a win or a loss, affirmative action is as safe as it can be for now. Until Schuette, advocates on both sides of the debate will just have to wait. In the meantime, we can all chew on Justice Thomas’s outspoken concurrence. If you’ve read his opinion, you know there’s plenty to digest.


Davida McGhee, the author, is a second-year law student at Harvard Law School and Articles Editor for the Harvard Journal on Racial and Ethnic Justice.