WASHINGTON (CN) — At the center of an upcoming Supreme Court case that could drastically change higher education in this country is an enduring question in American democracy: What does it mean to be equal?
Almost 70 years ago, the court made history when answering this question in relation to school segregation. In Brown v. Board of Education, the court ruled that separate but equal educational facilities for racial minorities were unequal and violated the Equal Protection Clause of the 14th Amendment.
“Brown stands for equal opportunity and fairness, and it's really this bright spot,” Michaele Turnage-Young, senior counsel at the Legal Defense Fund, said in a phone call. “It's a Supreme Court at its best. It’s the Supreme Court helping the nation live up to its loftiest ideals.”
Decades later, this case — which has in large part shaped Americans’ understanding of the court — is being used to argue against a policy intended to further integrate universities and advance diversity interests.
“How could it be that Brown was the case that led to the desegregation of our educational system, and now we have a petitioner coming along seeking to leverage Brown to resegregate higher education in this country,” Young asked.
The high court on Monday will hear an appeal led by the conservative activist Edward Blum who says the only way to create an equal opportunity for students is to adopt a race-neutral approach. Students for Fair Admissions is fighting Harvard and the University of North Carolina for their use of race in admissions. To uphold the promises of Brown, the group argues that the court should strike down the use of affirmative action policies in education.
“No one is under the illusion that we live in a postracial society, or that racial discrimination is a thing of the past,” William Consovoy, an attorney with Consovoy McCarthy representing the group, wrote in their brief. “But when elite universities place high-schoolers on racial registers and tell the world that their skin color affects what they think and know, the universities are hurting, not helping. The only realistic way ‘to stop discrimination on the basis of race is to stop discriminating on the basis of race.’ And that is what the Constitution and Title VI require.”
Students for Fair Admissions has brought a direct challenge to 2003 precedent that says race can be used in university admissions without violating the Equal Protection Clause. In Grutter v. Bollinger, the court upheld affirmative action policies at the University of Michigan Law School. Justice Sandra Day O’Connor, writing for the majority, said that admissions decisions were based on a multitude of factors, and considering race as just one facet of that decision could contribute to diversity in education. O’Connor also said that considering race in this decision did not harm nonminority applicants.
Students for Fair Admissions claims, however, that Grutter is closer to the infamous Plessy v. Ferguson than Brown.
“Because Brown is our law, Grutter cannot be,” Consovoy wrote. “Just as Brown overruled Plessy’s deviation from our ‘colorblind’ Constitution, this Court should overrule Grutter’s.”
The group understands Brown as vindicating the promise of the 14th Amendment by rejecting any use of race in education. But their understanding of Brown and the 14th Amendment is contested. Earlier this term, Justice Ketanji Brown rejected the idea that the Constitution was colorblind.
“The framers themselves adopted the equal protection clause, the 14th Amendment, the 15th Amendment, in a race-conscious way,” the Biden appointee said during oral arguments in a redistricting fight concerning the consideration of race.
Civil rights groups contend that Brown actually recognized the constitutional necessity of racially integrated schools.
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