“The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” So wrote Chief Justice John Roberts, concluding his opinion of the Court in Parents Involved in Community Schools v. Seattle School District No. 1 in 2007.
The United States Supreme Court has before it an opportunity to move this land of equal opportunity a giant step forward toward ending the role that race continues to play in our society.
It should seize it.
Pending before the Court is Abigail Fisher’s petition for certiorari in her case brought against the University of Texas at Austin. (A petition for certiorari means that a party to a case is asking the Supreme Court to review the lower court’s decision.) Ms. Fisher was denied admission to UT’s entering freshman class in the fall of 2008 after her application was considered under UT’s admittedly race-conscious admissions policy.
UT’s policy was modeled after a heavily race-conscious policy that was in place at the University of Michigan Law School. The law school’s policy was challenged in an earlier Supreme Court case, Grutter v. Bollinger, et al., decided in 2003. Barbara Grutter, who—like Fisher—was denied admission to one of the nation’s flagship universities because of her race, actually won her court trial against the University of Michigan in 2001, only to see it stripped away in all-but-inexplicable fashion by Justice Sandra Day O’Connor’s opinion in Grutter.
Like Plessy v. Ferguson over 100 years earlier, Grutter permits racial discrimination for the flimsiest of rationales. In Grutter it is described as the quest to obtain the so-called “educational benefits” of a diverse student body. It is a constitutional aberration that should be reversed.
The Court has an opportunity in Fisher to right the wrong of Grutter. It requires nothing extraordinary from the justices apart from a willingness faithfully to return to the bedrock principle unanimously established over a half century ago in Brown v. Bd. of Educ.—that “racial discrimination in public education is unconstitutional.” Such an outcome would be a fitting coda to Chief Justice John Robert’s concluding phrase in the Court’s post-Grutter 2007 decision in Parents Involved, cited above.
Every American of every race should hope the Court uses Fisher as the case to reverse Grutter and return the country to the principle adopted in Brown, a principle unanimously established in what, perhaps, remains the greatest case ever decided by our Court.
I have written a document that gives a legal rationale for not only granting cert in the Fisher case, but also explaining in greater detail why the Supreme Court should reverse its decision in Grutter.
(Editor’s note: Mr. Purdy was one of the pro bono trial and appellate counsel for Barbara Grutter in Grutter v. Bollinger, et al., 539 U.S. 306 (2003).)