By V.I. King
A 25-year deadline is fast approaching; in fact, 5 years have expired, and there are only a short 20 years remaining.
In July, 2003, the U.S. Supreme Court issued landmark legal opinions in the two lawsuits filed against the University of Michigan. It held, essentially, that universities can continue to give preferences in admissions on the basis of race for the purpose of promoting diversity. However, in an opinion by Justice Sandra Day O’Connor, the Supreme Court gave our society a deadline. She wrote, “Race-conscious admissions policies must be limited in time . . . The Court expects that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.”
Five years have passed. Time is running out fast, and—as unpleasant as the task may be—political leaders, public intellectuals, journalists, social scientists, and voters need to start a national debate about affirmative action — whether to keep it, how to fix it, and what it means for the future of the country.
Those who might believe that there is no urgent need to confront these issues now should bear in mind the long road to Brown v. Board of Education. The legal path to that decision in 1954 actually began 20 years earlier, when civil rights attorney Charles Houston joined the National Association for the Advancement of Colored People. The following year, in 1935, Houston and his protégé – the young Thurgood Marshall – won the first battle against the separate-but-equal doctrine of Plessy v. Ferguson, in the case of Murray v. Pearson (which forced Maryland to open its law school to African-American applicants). Nineteen more years of hard-fought litigation followed, including landmark cases such as Missouri ex rel. Gaines v. Canada (1938), Smith v. Allwright (1944), Morgan v. Virginia (1946), Patton v. Mississippi (1947), and Shelley v. Kraemer (1948), culminating in the issuance of the decision in Brown v. Board of Education.
To play a role in shaping how the U.S. Supreme Court will rule in 2028, higher education leaders and lawyers need to strategize – as Houston and Marshall did – about what test cases are emerging in all 50 states, how those cases will create appellate opportunities, and how each court decision can build upon a prior decision.
If the goal is to push back against Justice O’Connor’s expectation of a race-free admissions process after 2028, then those who support race-based admissions must think about what legal cases can best frame the argument that 2028 is too early a year to abandon that system. If the goal is to recast affirmative action as a class-based system starting in 2028, those advocates need to build the case for why class is a fitting substitute for race when it comes to admissions.
There is a possibility that no appropriate case will reach the U.S. Supreme Court in 2028 to cause it to issue a ruling that will change affirmative action. But there is an even greater possibility that opponents of race-based admissions are preparing, even now, to file test cases in the near and distant future that will drive these issues to the U.S. Supreme Court just in time to try to turn Justice O’Connor’s 2003 expectation into the law of the land.
V.I. King is President of the Board of Trustees at Glendale Community College and University Legal Counsel at California State University, Los Angeles.