March 29, 2012

Publication of an Esteemed UC Davis Law Alumna

Francine J. Lipman, Professor of Law at Chapman University, is a 1993 graduate of UC Davis School of Law and was Editor-in-Chief of the UC Davis Law Review.

Here is a new publication from this esteemed alum: The “Illegal” Tax (UHLC/IHELG Research Monograph 11-09, 2012), forthcoming in 11 Connecticut Public Interest Law Journal 93-132 (Fall - Winter 2011)

This Article debunks the short, but maladroit statement that “illegals do NOT pay taxes.” It  describes the depth and breadth of undocumented immigrants as a resource for tax payments made to government coffers across America. The depth and breadth is evinced by describing the myriad of different federal, state, and local taxes undocumented immigrants are subject to and pay. Most notably, this Article verifies that undocumented immigrants not only pay the same taxes that U.S. citizens and documented residents pay, but in addition that they are subject to and pay what is described as “the undocumented immigrant tax.” The undocumented immigrant tax is effectively an additional tax burden, a surtax or tariff on undocumented immigrants and their families. As a result, not only do undocumented immigrants pay taxes, but they bear a greater tax burden than similarly situated U.S. citizens and documented residents.


March 24, 2012

Rural Women and the Limits of Law: Reflections on CSW 56

The United Nations 56th Session of the Commission on the Status of Women (CSW 56) featured as its priority theme this year "the empowerment of rural women and their role in poverty and hunger eradication, development and current challenges."  This focus on rural women is long overdue, given that rural women comprise a quarter of the world's population.  Further, women provide 43% of the world's agricultural labor, and they produce half of the world's food for direct consumption.  In fact, non-governmental organizations (NGOs) discovered some time ago that women--referred to by many as the "architects of food security"--are key agents of development.  One reason for this is that when women and girls receive income, they reinvest 90% of it in their families.  In spite of their transformative potential to reduce hunger and poverty, women own less than 2% of land worldwide and they receive less than 10% of available credit.

As one whose scholarship focuses on rural livelihoods in both the United States and abroad, I was pleased to attend three days of the two-week CSW 56 event (February 27-March 9) as an observer for the American Society of International Law. As a former gender consultant for the United Nations, I was prepared for some of what I saw (e.g., bureaucracy), but the experience also held a few surprises. One thing that intrigued me about the “Session”—which is not a session at all but a dizzying array of “high-level round tables” and other meetings, panel discussions, “side events,” and “parallel events”—is that discussion of law was relatively absent. Furthermore, relatively little of the substance of these gatherings focused on rural women in a way that went beyond adding the modifier “rural” to whatever issue was being discussed. Rather than engaging with the circumstances that often distinguish rural women’s lives from those of their urban counterparts, many of the sessions seemed merely to “add rural women and stir” in relation to a well-recognized (and admittedly very important) women’s issue (e.g., female genital mutilation, child marriage). Other sessions did take up issues more central to rural livelihoods, including spatial removal from services and agents of the state, and women’s roles in agricultural production. The lack of significant engagement with the particular challenges facing rural women is reflected in the fact that none of the resolutions adopted by the Commission was about rural women. Nor did the Commission adopt any agreed conclusions on the priority theme of the 56th Session.

In contrast to CSW’s somewhat anemic approach to the priority theme, Article 14 of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) addresses the rights of rural women as a group. Indeed, CEDAW is the first human rights treaty to recognize rural difference, to acknowledge rural populations. While Article 14 guarantees to rural women all the rights enumerated elsewhere in CEDAW, the article also addresses rights specific to rural women. These include the right:

  • to be involved in “development planning at all levels”;
  • to benefit from “all community and extension services” among other types of education;
  • to “organize self-help groups and cooperatives in order to obtain equal access to economic opportunities”;
  • “to have access to agricultural credit and loans, marketing facilities, appropriate technology and equal treatment in land and agrarian reform, as well as in land resettlement schemes”; and
  • “to enjoy adequate living conditions, particularly in relation to housing, sanitation, electricity and water supply, transport and communications.”

Read more about Article 14, its history, and its implementation herehere, and here. Given the particular attention paid to rural women in this germinal women’s rights treaty, one might have anticipated considerable attention to the provision and its potential at CSW 56. Not so at the sessions I attended. I heard Article 14 mentioned only a couple of times.

It is a common bias among lawyers to presume law can solve problems and should be used to do so. Lawyers may be more skeptical about whether international law is effective at solving problems, attributing failures to the lack of enforceability of international law and the lack of respect for the rule of law, particularly in the developing world. As a ruralist, I have asserted that law is less effective at addressing problems in rural locales for some similar reasons. That is, when legal institutions and legal actors (including lawyers) are literally less present, laws on the books are less potent and the rule of law withers. All of these issues related to the relevance, authority, and efficacy of law were in play—sometimes explicitly, more often implicitly—in the attention CSW 56 gave to rural women.

Many of the participants in CSW 56 were not lawyers—nor were they UN or national officials. Rather, the vast majority of participants were associated with NGOs that have consultative status with the UN Economic and Social Council. Indeed, on each morning of CSW 56, officials with UN Women held a briefing for NGO representatives (also referred to as “civil society”). By the middle of the first week, UN Women announced that 1,598 NGO representatives from 358 NGOs were engaged in the annual gathering.

At these daily briefings, UN Women officials offered affirmations to NGO representatives, assuring them of the importance of their efforts. The UN officials also offered updates on what was happening at the “high-level meetings” that few NGO representatives had permission to attend. In spite of their exclusion from many of the events where member states were in direct talks, NGOs presented a robust and varied array of panel discussions. A tiny sampling of the topics and their sponsors follows:

  • Women and Corruption: Grassroots Experiences and Strategies, Huairou Commission, UN Development Program
  • Empowering Caregivers to Build Healthy Sustainable Communities, Huairou Commission, GROOTS International, International Council of Women
  • Rural Women's Groups and Key Stakeholders Frame Joint Actions, Government of Norway, Huairou Commission, GROOTS International, UN Women, UN-Non Governmental Liaison Service, Baha'i International Community, Food and Agriculture Organization, International Fund for Agricultural Development, World Food Program, Landesa
  • Rural Women Speak: Land, Health and Rights in Africa, FEMNET
  • Rural Girls and Urban Migration: The Role of Communications for Development in Bridging the Divide, UN-HABITAT, Plan International, UNESCO, Women in Cities International
  • Measuring Change for Rural Women in Sub-Saharan Africa, Global Fund for Women

Here is a link to the official programming, and a full listing of the NGO programming is here.

While most commentators in these parallel and side events presumed developing world contexts, a few offered reminders that biases against women persist in the developed world, too, including in relation to agriculture. In other words, Australia, Canada, the United States (just to name a few) all have work to do to empower women, including those in rural areas. (To be clear, unlike these other nations, the U.S. has never ratified CEDAW and is not bound by it).

This sampling of events demonstrates my earlier points about both the relative absence of attention to law’s role in solving the problems of rural women (and perhaps, by implication, all women), and also the shortage of programming regarding issues unique to rural women. To the extent that the particular concerns and circumstances of rural women were center stage, the focus typically related to agriculture. Among these were issues such as access to credit and means of marketing their products, the relative merits of “sustainable” agriculture versus intensive production agriculture, and an issue that more squarely implicates law: women’s right to own land. Officials from UN Women reported that diplomats participating in CSW 56 were sharing examples of legislation that would achieve land reform and improve land distribution schemes, but in the next breath they acknowledged the challenge of getting these laws implemented and enforced.

The need for legal reform arose in other contexts, too, but so did law’s limitations. For every comment I heard about the utility of Article 14 of CEDAW (or some other progressive national or international law) and the importance of legal and policy environments that were conducive to women’s empowerment, I also heard words of caution about the limits of law. Government and UN officials were more likely to tout the power of law, while NGOs were more likely to focus on village realities that often undermine the rule of law. Among those offering caveats regarding the potency of law were those who noted that many will be reluctant to invoke it—including criminal laws—in relation, for example, to forced child marriage. One African NGO representative stated,

Face reality ... be honest. Even in America, who tells the law? Maybe [the victims and their families] are illiterate ... [child marriage] is their custom. Who goes to tell the law except the child? And how can the child go tell the law?

This is where all of us come in ... if your NGO is interested in solving these problems. You go [to the village], watch the ways things are done and then talk to the educated locals [so that they begin to see the social and economic costs of the practice, e.g., child marriage]. And they will know they must do something.

This woman, like many others I heard over three days, extolled the importance of grassroots efforts to achieve the empowerment of women.

Wherever one might strike the balance between formal law on the one hand and local, grassroots efforts to educate and achieve cultural change on the other, few coming out of CSW 56 would dispute that both have significant roles in empowering not only rural women, but indeed all women.

Originally posted to; cross-posted to Legal RuralismIntLawGrrls and Agricultural Law.



March 16, 2012

Fisher v. Texas and the Reasons Why Liberals and Conservatives on the Supreme Court Don’t Trust Each Other on Affirmative Action: Part Two in a Two-Part Series of Columns

Cross-posted from Justia's Verdict.

My most recent column for Justia’s Verdict, Part One in this series, began to look at issues raised by the Supreme Court’s recent decision to grant review in the Fisher v. University of Texas affirmative action case.  There I discussed some of the ways in which both the so-called liberal and the so-called conservative Justices have come across as less than completely intellectually honest in many of the substantive votes they have cast on the constitutionality of race-based affirmative action, contributing to a mutual distrust among the groups of Justices on the subject.  In the present column, I continue developing this theme of intellectual (in)consistency, this time focusing less on the outcomes that the Court or various of its Justices have reached, and more on the questions of how the Court should decide these cases—that is, what methodology should be used in these cases—and, indeed, whether the Court should have been willing to decide some of these cases at all.

The “How” Question: Why Has There Been No Sustained Discussion of the Use of Originalist Methodology in the Affirmative Action Cases?

For about a generation, the conservatives on the Court have been arguing for originalism, a particular approach to constitutional interpretation that seeks to understand and apply the text of the document as “intelligent and informed people of the time” of enactment would have.  Justice Antonin Scalia, the American jurist most often associated with the development of originalism in recent American jurisprudence, has explained that originalism seeks to construe the Constitution’s text “reasonably, to contain all that it fairly means.” Under originalism, the meaning that counts is “the original meaning of the text”—”how the text of the Constitution was originally understood” by interpreters of the day.

Originalism in some form is a very attractive idea.  Yet throughout the modern affirmative action cases over the last generation, the most conservative Justices have never really explained how their view that government cannot use race in any way whatsoever—that the Constitution is “color-blind,” so to speak—can be squared with the fact that the very same Congress that passed the Fourteenth Amendment did, in fact, use race-based programs to help African Americans.

Consider the Parents Involved ruling from 2007, which I discussed in Part One of this series, and which tested the validity of race-based pupil assignments employed to promote high school integration in Seattle and Kentucky.  In that decision, Justice Breyer, in dissent, finally began to call out the color-blind-Constitution Justices on this point, reminding observers that the federal government, even in the Nineteenth Century, at times offered relief to all African Americans, and not just newly freed slaves.  Justice Thomas, the most ardent color-blind-Constitution Justice and also a staunch proponent of Scalian originalism, had only this to say by way of response:

“The dissent half-heartedly attacks the historical underpinnings of the color-blind Constitution. . . . What the dissent fails to understand, however, is that the color-blind Constitution does not bar the government from taking measures to remedy past state-sponsored discrimination–indeed, it requires that such measures be taken in certain circumstances. Race-based government measures during the 1860’s and 1870’s to remedy state-enforced slavery were therefore not inconsistent with the color-blind Constitution.”

Justice Thomas’s comment here is, from what I can tell, the most elaborate explanation that originalists have offered about originalism and the “color-blind Constitution.” And it is far from enough. Why? Because the programs at issue in the 1800s extended beyond former slaves to other African Americans, and thus could not be easily characterized as surgically redressing slavery.  And also because Justice Thomas does not address the fact that slavery was not illegal until 1866, when the adoption of the Thirteenth Amendment made it so.  If the government has the authority to use race to rectify slavery (which was not illegal when maintained), why can’t the government as a more general matter use race to rectify racial problems (such as de facto segregation) that also go beyond past state lawlessness?

There may be plausible originalist responses to my questions, but it’s hard to know, because the color-blind-Constitution Justices simply haven’t made any. Indeed, they haven’t applied originalism to affirmative action at all.  Nor have they explained why they haven’t.

The “Whether to Decide” Questions:  Issues of Standing in Affirmative Action Cases

In the 1975 Supreme Court case of Warth v. Seldin, various individuals and organizations had sued the Town of Penfield, New York, alleging that the town’s zoning ordinance excluded persons of low and moderate income from living there, in violation of the plaintiffs’ rights under, among other provisions, the equal protection clause of the Fourteenth Amendment.  The question of whether governmental discrimination, overt or tacit, against the poor (who also frequently happened to be persons of color) violated the Constitution was indeed a thorny one.  But the Court determined that it didn’t need to reach that prickly issue, because none of the plaintiffs had standing to sue. (Standing is the right, based on the facts of one’s situation, to bring a particular case to court.)

What about the plaintiffs who seemed to be the most likely to have standing, the low-income persons who said they wanted to live in Penfield?  The Court said that these folks lacked standing because their injury—the inability to live in Penfield—was not caused by the municipal defendant, insofar as even if Penfield rewrote its zoning laws to encourage more low-income housing, the particular plaintiffs before the Court still couldn’t afford to live there.  It was the harsh economic market—not Penfield’s laws—that was causing these particular challengers to live elsewhere.  Because there was no causation, there was no standing.

Fast forward to 1993, when the Court decided Associated General Contractors v. City of Jacksonville.  There, non-minority contractors alleged that they would have bid on construction work that was set aside for minority contractors, but could not due to their race.  The contractors were challenging the requirement that 10% of city contracts be awarded to minority-owned businesses.  The problem, however, was that even absent the set-aside program, the particular challengers still would not have been awarded any contracts—their bids would have been uncompetitive even in the absence of the affirmative action program.  In other words, the challengers would have lost out to other non-minority companies.  It was the existence of these other non-minority bidders, and not the set-aside program, that caused the plaintiffs to lose out on the contracts.  But the Court said that in equal protection cases like these, the relevant injury is not the denial of the benefit itself, but the denial of equal treatment that is imposed by a discriminatory barrier to obtaining a benefit.  Or, put another way, the injury is the inability to compete on an equal footing in the bidding process.  So the challengers had standing even if they would never have been awarded the contracts.

The Court admitted some “tension” between its decision and the ruling in Warth, but with a few sentences of elaboration the Court deemed the tension “minimal.”

Associated General Contractors, then, recognizes that a constitutional equal protection injury can consist of unfair treatment in a selection process even if the ultimate benefit sought would not be forthcoming. In addition to its inconsistency with Warth, the decision is also hard to square with a case that was decided eight years later, Lesage v. University of Texas.  In Lesage, the Court held that a challenger to a UT race-based affirmative action plan who would have been denied admission even in the absence of the plan could not recover anything from the University, which means that the injury consisting of unfair procedural treatment has no monetary value.

Should We Anticipate More Procedural Innovation/Manipulation From the Court in the Fisher Case?

A close cousin of standing rules—the mootness doctrine—may figure prominently in the Fisher affirmative action case that is now pending at the Court.  The plaintiff in Fisher (who was once one of two plaintiffs, but now is the only one left) applied to UT as a freshman and was denied admission.  She then filed suit in federal court challenging UT’s race-based admissions criteria, but at the same time enrolled in another college. In her Complaint, she asked for a declaration that she was entitled to have her UT application considered without regard to race; an injunction (a court order) directing UT to consider admitting her without regard to race (on the premise that she would transfer to UT if admitted); and money damages “in the form of” a refund of her admissions application fee (on the theory that her application had not been processed fairly, and therefore she was entitled to get her money back.)

But here’s the (or at least a) big wrinkle.  Since it took a while for her case to be resolved by the U.S. Court of Appeals for the Fifth Circuit (which ruled in UT’s favor on the merits), she’s now no longer interested in transferring to UT (given that she’s already a senior at her current college).  So her claims for declaratory and injunctive relief are no longer alive; in legal parlance, they are moot.  But what about her small monetary refund claim (for a sum total of roughly $100)?

In opposing Supreme Court review a few months ago, UT told the Court that if the Justices were to grant review, UT could simply offer to refund plaintiff the $100, thereby mooting the damage claim too!  So, argued UT, it would be a waste of time for the Court to grant review, only to have to dismiss the case before deciding it.

That is a very interesting argument.  If UT follows through on its threat and makes a tender of $100 (or a bit more, just to be on the safe side), what will/can the Court do?  Perhaps it will dismiss the case as moot; by granting review, perhaps it wanted to at least force UT make the tender, which, if it moots the case, would also erase (vacate) the Fifth Circuit ruling that some conservative Justices don’t like.

But it seems more likely a majority of the Justices think that they have found a way to keep the case alive.  There are a number of possibilities as to how they might do so, including (though not limited to): (1) rejecting the tender as too manipulative; (2) holding that the plaintiff implicitly requested in her Complaint (or may amend her suit to request) more extensive damages for not having been able to attend UT; and (3) holding that the plaintiff implicitly requested nominal damages and that such nominal damage claims cannot be mooted with a tender that is unaccompanied by an admission of liability. Yet each of these three options involves significant tension past decisions and/or actions in earlier Court cases.

Thus, many legal analysts are anxious to see if, and how, the Court can get past the procedural hurdles it has erected in many other settings to reach this latest affirmative action dispute on the merits.

March 12, 2012

Moot Court Event on "Obamacare"

I'm heading to Los Angeles tomorrow to take part in a special moot court event on President Obama's sweeping health care reform legislation.  UC Davis School of Law is a co-sponsor of the event.  Here are the details:

Tuesday, March 13
6:00 - 7:30 P.M.
The California Endowment - Yosemite Hall
1000 North Alameda St.
Los Angeles, CA 90012

Just two weeks before the United States Supreme Court hears oral arguments on the constitutionality of the Affordable Care Act, The California Endowment, Southern California Public Radio, and distinguished law schools are bringing together a bipartisan mix of renowned legal minds and policy experts to hear and argue the case that will decide the health status of millions.  

The moot court event will offer an exclusive look into the highly anticipated U.S. Supreme Court case Department of Health and Human Services v. State of Florida by specifically examining the lawfulness of the Affordable Care Act's minimum coverage requirement. 

Theodore Boutrous, partner at Gibson, Dunn & Crutcher, LLP

Kathleen M. Sullivan, partner at Quinn Emanuel Urquhart & Sullivan, LLP

Justices :
Vikram Amar, Associate Dean, UC Davis School of Law

Hon. Gray Davis, Former California Governor

Judge Alex Ferrer, Host of Judge Alex and Former Florida Circuit Court Judge

Daniel Philip Kessler, Professor of Law, Stanford Law School, and Senior Fellow, Hoover Institution

Thomas E. Lorentzen, President, Health Approaches, and Former Regional Director, U.S. Department of Health and Human Services

Rachel F. Moran, Dean, UCLA School of Law

Hon. Carlos R. Moreno, Former Associate Justice, California Supreme Court

Thomas A. Saenz, President and General Counsel, MALDEF

Hon. Deanell Reece Tacha, Dean, Pepperdine University, and Former Circuit Judge, 10th Circuit U.S. Court of Appeals

Audio from the event will be streamed live at


March 8, 2012

Presumed Incompetent: The Intersections of Race and Class for Women in Academia

Professor Angela Harris has a new book out, titled Presumed Incompetent: The Intersections of Race and Class for Women in Academia.

From the publisher: "Presumed Incompetent is a pathbreaking account of the intersecting roles of race, gender, and class in the working lives of women faculty of color. Through personal narratives and qualitative empirical studies, more than 40 authors expose the daunting challenges faced by academic women of color as they navigate the often hostile terrain of higher education, including hiring, promotion, tenure, and relations with students, colleagues, and administrators. The narratives are filled with wit, wisdom, and concrete recommendations, and provide a window into the struggles of professional women in a racially stratified but increasingly multicultural America."

To learn more, visit




March 2, 2012

Fisher v. Texas and the Reasons Why Liberals and Conservatives on the Supreme Court Don’t Trust Each Other on Affirmative Action: Part One in a Two-Part Series of Columns

Cross-posted from Justia's Verdict.

The Supreme Court’s grant of cert. last month in the Texas college affirmative action case, Fisher v. University of Texas, has generated, and will continue to generate, tremendous buzz among commentators, educators and civil rights advocates.  Whether the Court ends up completely or substantially eliminating race-based affirmative action (and even whether the Justices can overcome procedural hurdles to resolve the case on the merits at all) remains to be seen.  But as my friend and fellow Verdict columnist Mike Dorf observed in his column on the Texas case earlier this week, the judicial opinions that emerge may very well fail to offer candid, honest treatment of the complex issues involved.

In my column today, the first in a two-part series of columns about the Court and its upcoming affirmative action case, I build upon this theme of intellectual insincerity, and describe in greater detail how the Justices have gotten to the point where neither wing of the Court seems remotely open to, or trustful of, the other on these matters.

As Mike explained, and as I chronicled in some detail in my first column on the Fisher litigation last year, there are a number of prior Supreme Court cases—Bakke, Croson, Grutter, Parents Involved, and a handful of others — that anyone trying to understand the constitutional law surrounding educational affirmative action should know about.  These cases establish doctrinal rules—categories, boxes, standards of review, etc.—that apply to affirmative action programs.  But these cases also illustrate that doctrinal tests are not self-implementing; even when all nine Justices largely agree about the legal standard that should govern, they can still disagree 5-4, and quite bitterly, over what the application of that abstract standard really means in actual disputes.

Moreover, these cases have created a voluminous track record of intellectual sleight-of-hand that can explain why the affirmative action defenders and skeptics on the Court have good cause not to trust each other.  I offer three examples below:

The First Example: The Liberals’ Unwillingness to Apply Meaningful Strict or Even Intermediate Scrutiny to Race-Based Programs

Consider first the case of City of Richmond v. Croson, where a divided Court struck down a Richmond, Virginia contracting set-aside program that reserved a certain percentage of the money the city spent on public construction contracts for minority-owned contracting companies.  The City argued that the plan was necessary to remedy past discrimination, both by the City itself and within the private contracting industry and beyond, against minority contractors, but the majority (which included Chief Justice Rehnquist as well as Justices White, Stevens, O’Connor, Scalia, and Kennedy) rejected this justification (more on this in a moment).

The three dissenters—Justices Brennan, Marshall and Blackmun—would have upheld the plan by applying what they said was intermediate scrutiny to the measure, the same standard of review they had used to vote to invalidate virtually all gender-based laws they saw during their time on the Court.  They would have upheld Richmond’s plan, under this supposedly forceful standard of review, even though the program embodied an overt quota—something the Court has said for decades is impermissibly rigid—and even though the remedial plan included as set-aside beneficiaries contracting companies owned by Aleuts, as if Richmond had a history of discriminating against Aleutian contractors in its recorded past.

The willingness of the liberal dissenters to defer to an obviously poorly crafted and mechanical plan that made use of race went a long way toward convincing the more conservative majority that the constitutional affirmative action battle would likely be waged in all-or-nothing (or close to it) terms, and that trying to identify a middle ground (the way the Court would do in the abortion setting in Planned Parenthood v. Casey three years later) would be a waste of effort.

The all-or-nothing question may now be in front of the Court again in Fisher, where observers openly wonder whether Justice Kennedy is still seeking, and can find, a middle ground from which he might invalidate the Texas plan, but still leave room for meaningfully effective diversity-promoting programs.

The Second Example:  The Conservatives’ Unfair Treatment of Remedial Rationales

Let’s stay with Croson for a moment, because there is some intellectual dishonor to be seen in the conservative opinions there as well.  The majority rejected the plan not just because, as described above, it was shoddily crafted.  The majority also thought that the goal of remedying past discrimination was itself not one on which the City should be able to act easily without detailed findings (which the City had not made) as to exactly what discrimination occurred, and when, and by whom.  Nobody denies that, in Richmond, there had been overwhelming, pervasive and persistent societal discrimination against African-Americans in particular for generations.  Yet the main opinion in Croson said, in dismissing the relevance of this history: “It is sheer speculation how many minority firms there would be in Richmond absent past societal discrimination.”

This is true, but it would remain true even if Richmond had made the kind of findings of past discrimination that the conservative Justices said they wanted.  Knowing the “when,” the “where,” and the “how much” about discrimination in the past still leaves unclear exactly what the world would look like today had that past wrongdoing never existed.  To deny government the ability to redress past discrimination precisely because its enormity creates uncertainty about whether the proposed remedy is perfectly calibrated to the wrong creates a perverse situation in which the greater the past injustices are, the more powerless the government is today to deal with their effects—which are undeniably real and lingering, but inevitably somewhat fuzzy in their particulars.

For this reason, the goal of remedying past discrimination has largely been abandoned as a legal justification for affirmative action programs, at least in the higher education setting.  Instead, diversity of the student body as a pedagogical asset is the primary interest that universities assert to defend race-based programs.  I do not disagree with the idea that diversity can be a compelling interest.  But I do think that most defenders of affirmative action, were they completely honest, would say that the remedial justification, especially in the case of African Americans, is the most natural, obvious and compelling reason to maintain race-based programs.  And yet, that honest reason why many proponents of affirmative action continue to think race-based programs are necessary is not discussed much in higher education cases, in large part because it was shut down unfairly in cases like Croson.  Here, the conservative wing of the Court has brought about dishonesty in our conversation about race.

The Third Example: The Justices’ Treatment of History and Past Precedent

In the affirmative action setting, the Justices are often guilty of selective memory and quotation when it comes to the Court’s prior decisions. One of the most prominent examples of selective (mis)reading of a past precedent was the prominent invocation in 2007 of Brown v. Board of Education by Chief Justice Roberts’s plurality opinion (joined by Justices Scalia, Thomas and Alito) in the racial student-assignment cases (or “racial balancing” cases, as these “color-blind” Justices described them) from Seattle and Louisville.  After asserting that “when it comes to using race to assign children to schools, history will be heard,” Chief Justice Roberts quoted language from Brown to the effect that “full compliance” with Brown‘s edict required school districts “to achieve a system of determining admission to the public schools on a nonracial basis.”

It’s true that the Court wrote these words, which, when analyzed in isolation, seem to condemn all governmental consideration of the race of students.  But to read Brown as a case about color-blindness is to ignore much of the analysis and language that the Court used to explain why it was invalidating the segregation schemes before it.

Indeed, perhaps the most famous language from Chief Justice Earl Warren’s opinion for the Court in Brown spoke not in terms of color-blindness, but in terms of the special damage that is done to minority racial groups when race is used by government in an overt attempt to create racial hierarchy and stigma: “To separate [African-American children] from others of similar age and qualifications solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone.”

In other words, Chief Justice Robert’s plurality opinion quoted the language about achieving a “system of determining admission to public schools on a nonracial basis” without acknowledging that this language was used in a setting where—unlike the modern Seattle and Louisville settings—there was a clear stigma and message of inferiority visited upon one race.  Such an omission is historically and intellectually misleading at the very least. Ultimately, while the result in Brown can be reconciled with a color-blind approach, the analysis and language in Brown, read in their entirety and against the historical backdrop that was 1954 America, do not really make Brown very strong stare decisis support for a total or near-total ban on governmental race consciousness.

Current proponents on the Court of a color-blind approach to the Fourteenth Amendment are also guilty of selective use of precedent when they invoke Justice Harlan’s dissent in Plessy v. Ferguson, the infamous 1896 case in which the Court, over Justice Harlan’s protestations, permitted Louisiana to mandate separate railway cars for blacks and whites.  Today, supporters of a complete ban on government race-consciousness often invoke Justice Harlan’s famous statement that “[o]ur Constitution is color-blind,” largely because Harlan’s bottom-line vote in Plessy was legally right and morally just. Yet those who invoke Harlan ignore other language from his writing that focused not on absolute colorblindness, but instead on the need to avoid the creation of “caste” in the United States.

Because Louisiana’s (and most every other American government’s) use of race in the Nineteenth Century tended to promote a racial caste system, a statement back then about colorblindness and a statement about anti-caste principle meant the same practical thing. But now, in 2012, when the use of race in colleges does not seem to be deployed in support of, and is not likely to lead to, a racial caste system, we must interpret Harlan’s opinion more holistically, and should not wrench the “colorblind” sentence from its linguistic and historical context.

Indeed, there are yet other passages from Harlan’s dissent that advocates of modern colorblindness ignore even more tellingly. In describing the world that would result if government adhered to his prescription about the use of race, Harlan wrote: “The white race deems itself to be the dominant race in this country. And so it is, in prestige, in achievements, in education, in wealth, and in power. So, I doubt not, it will continue to be for all time, if it . . . holds fast to the principles of constitutional liberty.”  Small wonder people who want to draw upon Harlan’s “colorblind” metaphor don’t mention where he himself believed that metaphor would lead us.

In my next column, Part Two in this series on the Court and affirmative action, I will explore some of the procedural machinations and dishonesties from the Court that the race-based affirmative action cases have generated. That column is currently scheduled to appear here on Justia’s Verdict on March 16.