Plessy's Ghost: Grutter, Seattle and the Quiet Reversal of Brown

Abstract

In Grutter the Supreme Court held that promoting racial diversity was a "compelling" reason that justified Michigan's consideration of race in the law school admissions process. Grutter was hailed by "both liberals and conservatives as a great victory for affirmative action." The Supreme Court of the United States placed its imprimatur of constitutionality on diversity as a compelling interest of the state. People of color won the battle! Hurrah. Yet, resegregation is taking place in the midst of "victory."

This article is about why this is happening. I argue there is no irony here: Grutter is a very conservative framework at war with the project of affirmative action. Grutter is not a victory, but a defeat in disguise. Prior to Grutter, a series of cases, from Richmond v.  J.A. Croson Co. in 1988 to Hopwood v. Texas, developed the rule that race was an impermissible consideration. The only exception was where it was necessary to consider race in order to remedy a legal wrong: identified discrimination. The underlying notion was a contractarian view of equal rights: the right of the individual to equal treatment could not be sacrificed in order to achieve a perceived social good. The problem for the civil rights community is that this framework perpetuates a terrible socio-economic gulf. Because Grutter allows diversity-a social goal-to stand as justification, many scholars received this as a crack-if not a back door-in the wall the court was building. It was not.

First, I wish to show that the current debate we are having is a debate which has its roots in reconstruction. We are, in my view, simply witnessing the end of the second reconstruction. It all begins with the debate over the reconstruction Civil Rights Acts and culminates with Plessy v. Ferguson. During this era two models of equality emerged. One model I trace to Lincoln and another model I trace to Georgia Senator Joshua Hill.  I refer to these models of equality as "equality as redemption" and "equality as imposition." Plessy, as I see it, simply places its stamp of approval on the philosophy of Joshua Hill. First, I will show the continuity between the concept of equal protection that was used to rationalize segregation in Plessy and the concept of equal protection in the Croson-Hopwood line of cases. There are uncanny parallels. Second, I will show that Grutter is the alter ego of the Croson-Hopwood cases. Finally, I will address the question Gary Orfield asked in a recent article—whether the law the Supreme Court has been writing is imbued with the spirit of Brown or the ghost of Plessy—in light of the Court's latest affirmative action case, Parents Involved in Community Schools v. Seattle School District No. 1. I write to show how that ghost, the ghost of Plessy, pervades the law of affirmative action and pervades both the Grutter and Seattle cases.