Grutter v. Bollinger Brief for the NAACP Legal Defense and Educational Fund, Inc. et al. as Amici Curiae in Support of Respondents

    No. 02-241

In  THE

Supreme Court of tfjo United States
B a r b a r a  GRUTTER, Petitioner,

V.

LEE BOLLINGER, e t a l. , Respondents, 
and

K im b e r l y  Ja m e s , e t a l, Respondents.

On Writ of Certiorari To The 
United States Court of Appeals for the Sixth Circuit

BRIEF FOR THE NAACP LEGAL DEFENSE AND  
EDUCATIONAL FUND, INC. and the AMERICAN  
CIVIL LIBERTIES UNION as AMICI CURIAE IN 

SUPPORT OF RESPONDENTS

E l a in e  R. J o n es  
Director-Counsel 

T h e o d o r e  M . S h a w  
N o r m a n  J. C h a c h k in  
R o b e r t  H . St r o u p  

*E l is e  C. B oddee 
D a m o n  T . H e w it t  
C h in h  Q. L e  
NAACP Le g a l  D e f e n s e  

a n d  E d u c a t io n a l  
F u n d , In c .

99 Hudson Street, 16th FI. 
New York, NY 10013 
(212) 965-2200

* Counsel o f Record

(Listing of Counsel continued inside cover)

L i a B. E p p e r s o n  
NAACP L e g a l  D e f e n s e  

a n d  E d u c a t io n a l  
Fu n d , In c .

1444 Eye Street, N.W.. 
10th Floor

Washington,D.C. 20005 
(202)682-1300



(Listing of Counsel continued from cover)

O f Counsel:

St e p h e n  R . S h a pir o  
Legal Director 

C h r is t o p h e r  A . H a n s e n  
E. V in c e n t  W a r r e * 
Am e r ic a n  C iv il  L iberties  
U n io n  F o u n d a t io n  
125 Broad Street, 18th FI. 
New York, NY 10004 
(212) 529-250 *

Counsel fo r  Amici Curiae



1

TABLE OF CONTENTS

Table of Authorities ................................................................... ii

Interest of Amici .......................................................................... 1

Summary of Argument...............................................................1

ARGUMENT —

I. Race-Sensitive Admissions Policies Further the
Compelling Goals of Diminishing the Effects of 
Deepening Racial Segregation and of 
Preserving Opportunities in Higher Education 
for African A m ericans............................  3

n. Historical Racial Oppression by Governmental and 
Private Actors and Ongoing Discrimination 
Continue to Significantly to Affect the Lives and 
Opportunities of African Americans ..........................6

A. Slavery and Jim Crow Constituted an
Unbroken Chain of Racial Oppression That 
Remained Intact Until the Second Half of 
theTwentieth C entury.......................................7

B. The Cumulative Effect of Generations of
Racial Subordination and Continued 
Discrimination Has Produced Stark 
Inequality Which, By Any Measure, Leaves 
A frican  A m ericans S ig n ifican tly  
Disadvantaged ............... ......................... .. . 13

Page



TABLE OF CONTENTS (continued)

Page

HI. The Fourteenth Amendment Should Not Be 
Interpreted to Frustrate Voluntary State Efforts,
Using Race-Conscious Remedies, to Eliminate 
the Continuing Effects of State-Sponsored 
Discrimination ...........................................................22

A. The Persistence of Pervasive Racial
Inequality Calls For the Court to Revisit its 
Conclusion in Bakke That Redressing 
“Societal Discrimination” Is Not A 
Compelling In te re s t.......................   24

B. A Principal Purpose of the Fourteenth
Amendment Was to Constitutionalize 
Race-Conscious Remedies ............................ 29

C onclusion..........................................................  30

Appendix “A” — Legislative History of Freedmen’s 
Bureau Acts and Similar 
Legislation...................    la

TABLE OF AUTHORITIES

Cases:

Adams v. Richardson,
480 F.2d 1159 (D.C. Cir. 1973) .....................................  10

Adarand Constructors, Inc. v. Pena,
515 U.S. 200(1995) .................   . . . 2 7



Ill

TABLE OF AUTHORITIES (continued)

Page

Cases (continued):

Board ofEduc. o f Okla. City v. Dowell,
498 U.S. 237 (1991).....................................  4 ,26 ,2 7

Beerv. United States,
425 U.S. 130 (1976)................................................. 17

Belkv. Charlotte-Mecklenburg Bd. ofEduc.,
269 F.3d 305 (4th Cir. 2 0 0 1 )................................ .2 6

Brown v. Board o f Education,
347 U.S. 483 (1954)..................................... 10, 16, 27

City o f Richmond v. J.A. Croson Co.,
488 U.S. 469 (1989)..............................  23, 25, 27, 28

Civil Rights Cases,
109 U.S. 3 (1883)........................................................ 9

Cooper v. Aaron,
358 U.S. 1 (1958).....................................................  27

Dred Scott v. Sandford,
60 U.S. (19 How.) 393 (1 8 5 7 ).................................. 7

Freeman v. Pitts,
503 U.S. 467 (1992) 4, 26, 28



IV

Cases (continued):

Georgia v. Ashcroft,
195 F. Supp. 2d 25 (D.D.C. 2002), 
prob. juris, noted, 71 U.S.L.W. 3486,
2003 D.A.R. 698 (U.S. 2003) .............................. .1 7

Groves v. Slaughter,
40 U.S. (15 Pet.) 449 (1841) ................................ . . 7

Grutter v. Bollinger,
288 F.3d 732 (2002).................................................. 28

Hazelwood Sch. Dist. v. United States,
433 U.S. 299 (1977)..................................................  22

Holmes v. Danner,
191 F. Supp. 394 (M.D. Ga. 1961) ........................27

Johnson v. Transp. Agency,
480 U.S. 616(1987)..................................................  22

Knight v. Alabama,
14 F.3d 1534 (11th Cir. 1 9 9 4 )................... ............. 27

Manning v. Sch. Bd. o f Hillsborough County,
244 F.3d 927 (11th Cir. 2 0 0 1 ) ................................. 26

Miller v. Johnson,
515 U.S. 900(1995)......................................................4

TABLE OF AUTHORITIES (continued)

Page



V

TABLE OF AUTHORITIES (continued)

Page

Cases (continued):

Milliken v. Bradley,
418 U.S. 717 (1974)....................................... 4, 10, 26

Missouri ex rel. Gaines v. Canada,
305 U.S.337 (1938) .................................................. 10

Missouri v. Jenkins,
515 U.S. 70 (1995)....................................... 4, 26

Moore v. Illinois,
55 U.S. (14 How.) 13 (1 8 5 2 )............................ .. 7

Pasadena City Bd. ofEduc. v. Spangler,
427 U.S. 424 (1976)................. ................................ 26

Personnel Admin'r o f Mass. v. Feeney,
442 U.S. 256(1979).................................................. 26

Plessy v. Ferguson,
163 U.S. 537 (1896).............................................  9 ,22

Prigg v. Pennsylvania,
41 U.S. (16 Pet.) 539(1842).......................................7

Regents o f the Univ. o f Cal. v. Bakke,
438 U.S. 265 (1978)........................................... passim

Roberts v. City o f Boston,
59 Mass. (5 Cush.) 198 (1 8 5 0 ).................................... 7



VI

TABLE OF AUTHORITIES (continued)

Page

Cases (continued):

San Antonio Indep. Sch. Dist. v. Rodriguez,
411 U.S. 1 (1973)......................... .....................  10,26

Shaw v. Reno,
509 U.S. 630 (1993)....................................................4

Shelley v. Kraemer,
334 U.S. 1 (1948) ............... ................................ 11

Sipuel v. Okla. State Regents,
332 U.S. 631 (1948)................................................. 10

South Carolina v. Katzenbach,
383 U.S. 301 (1966).................................................  17

Sweatt v. Painter,
339 U.S. 629(1950).............................................  6, 10

United States v. Fordice,
505 U.S. 717 (1992)................................................  27

Village o f Arlington Heights v. Metropolitan
Hous. Auth., 429 U.S. 252 (1977) ..........................  26

Washington v. Davis,
426 U.S. 229 (1976)................................................. 26



vn

Cases (continued):

Wygant v. Jackson Bd. o f Educ.,
476 U.S. 274 (1986)................................ .... 23, 25, 27

Constitution:

U.S. Const, art. I, § 9 ................................................................ 7

U.S. Const, art. IV, § 2 .............................................................. 7

U.S. Const, art. IV § 4, art. I, § 8 ..............................................7

U.S. Const, amends. XE3, XIV, XV .........................   7

Statutes:

Act of March 3, 1865, c.90, 13 Stat. 507-508 ...................  29

1866 Freedmen's Bureau Act, Act of July 16,
1866, c. 200, 14 Stat. 173-177 ...................  29, la, 2a

14 Stat. Res. 86 (1866)..........................................................  2a

1867 Colored Servicemen's Claims Act, 15
Stat. 26, Res. 25 .................................................. 29-30

15 Stat. Res. 4 (1867)............................................................  2a

15 Stat. Res. 28 (1867)..........................................................  2a

TABLE OF AUTHORITIES (continued)

Page



Vlll

TABLE OF AUTHORITIES (continued)

Page

Statutes (continued):

Voting Rights Act of 1965, 42 U.S.C. § 1973 (2002) . . . .  17

Legislative Materials:

Cong. Globe, 39th Cong., 1st Sess. .................... 30, la, 2a

H.R. Rep. No. 196, 94th Cong., 1st Sess. 57-58 (1975) . .  17

Other Authorities:

Richard D. Alba et al., How Segregated are Middle- 
Class African Americans? 47 Soc. Probs.
543 (2000) .................................................................  15

T. Alexander Aleinikoff, A Case for Race-
Consciousness, 91 Colum. L. Rev. 1060 (1991) . . .  8

James Allen et al., Without Sanctuary (2 0 0 0 )...................... 8

Alfred Avins, The Reconstruction Amendments’
Debates (rev. ed. 1974) ...........................................  29

Marianne Bertrand & Sendhil Mullainathan, Are 
Emily and Brendan More Employable 
than Lakisha and Jamal? A Field Experiment 
on Labor Market Discrimination (2002) . . . . 19



IX

Other Authorities (continued):

Alfred W. Blumrosen & Ruth G. Blumrosen, The 
Reality of Intentional Job Discrimination in 
Metropolitan America— 1999 (1999) .................... 18

Jomills Henry Braddock II & James M. McPartland,
How Minorities Continue to be Excluded 
from Equal Employment Opportunities,
43 J. of Soc. Issues 27 (1987) ................................  18

Calvin Bradford, Center for Community Change,
Risk or Race? Racial Disparities and the 
SubPrime Refinance Market (2002) ...................... 13

William G. Bowen & Derek Bok, The Shape of
the River (1 9 9 8 )............................................................ 5

Mitchell J. Chang, The Positive Educational 
Effects of Racial Diversity on Campus, 
in Diversity Challenged (Gary Orfield 
and Michael Kurlaender eds., 2001) .....................  5

Camille Zubrinsky Charles, Socioeconomic Status 
and Segregation: African Americans,
Hispanics and Asians in Los Angeles, 
in Problem of the Century (Elijah Anderson 
& Douglas S. Massey eds., 2001) .......................... 14

TABLE OF AUTHORITIES (continued)

Page



X

Other Authorities (continued):

Civil Rights Project, Harvard U. & Lewis Mumford 
Ctr. For Comparative Urban & Regional 
Research, State U. of New York at Albany,
Housing Segregation (2001) .......................... 11

Sharon M. Collins, Blacks on the Bubble, 34 Soc.
Q. 429 (1993) ............................................................. 19

Sharon M. Collins, The Marginalization of Black
Executives, 36 Soc. Probs. 317 (1989) .................  19

Joseph Dalaker, U.S. Census Bureau, Poverty in
the United States, 2000 (2001)................................  20

Nancy A. Denton, The Persistence of Segregation:
Links Between Residential Segregation and
School Segregation, 80 Minn. L. Rev. 795
(1996) .....................................    10

Marlese Durr & John R. Logan, Racial Submarkets 
in Government Employment, 12 Soc. F.
353 (1997) .................................................................  19

Equal Employment Advisory Council, Amicus 
Curiae Brief in Support of Neither Party 
in Grutter v. Bollinger (No. 02-241) .......................... 5

Horace E. Flack, The Adoption of the Fourteenth
Amendment (1908) .................................................. 29

TABLE OF AUTHORITIES (continued)

Page



XI

Other Authorities (continued):

Barbara J. Flagg, “Was Blind, But Now I See,”
91 Mich. L. Rev. 953 (1993) ................................. .2 3

Erica Frankenberg et al., Harvard U., A Multiracial
Society with Segregated Schools (2 0 0 3 )......... 10,16

Erica Frankenberg & Chungmei Lee, Harvard U.,
Race in American Public Schools (2002) ............... 4

John Hope Franklin & Alfred A. Moss, Jr., From
Slavery to Freedom (6th ed. 1988) ...................... 8 ,10

Ralph Ginzburg, 100 Years of Lynchings (1988) ............. .. 8

Roxane Harvey Gudeman, Faculty Experience with
Diversity, in Diversity Challenged (Gary Orfield 
and Michael Kurlaender eds., 2001)...........................5

Cheryl I. Harris, Whiteness as Property, 106 Harv.
L. Rev. 1707 (1993)........................................... 23,27

A. Leon Higginbotham, Shades of Freedom (1996) . . . .  8, 9

Arnold Hirsch, Making the Second Ghetto
(2d ed. 1998)........................ ......................................  12

Harry J. Holzer, Race Differences in Labor Market 
Outcomes Among Men, in 2 America 
Becoming (Neil J. Smelser et al. eds., 2 0 0 1 )......... 18

TABLE OF AUTHORITIES (continued)

Page



TABLE OF AUTHORITIES (continued)

Page

Other Authorities (continued):

Harry J. Holzer & Keith R. Ihlanfeldt, Customer
Discrimination and Employment Outcomes for 
Minority Workers, 113 Q. J. of Econ. 835(1998). 18

John Iceland, et al., U.S. Census Bureau, Racial and 
Ethnic Segregation in the United States: 1980- 
2000(2002) ....................................... .......................  14

Kenneth T. Jackson, Crabgrass Frontier (1985) ...............  11

Richard Kluger, Simple Justice (1975) ............................. 7, 8

Stanley Lieberson, A Piece of the Pie (1980) ................. .... 8

John R. Logan & Brian J. Stults, Racial Differences in 
Exposure to Crime: The City and Suburbs of 
Cleveland in 1990, 37 Criminology 251 (1999) . .  15

Joseph Lupton & Frank Stafford, Household Financial 
Wealth, (Thousands of 1999 Dollars), Institute 
for Social Research (Jan. 2000) ...............................  20

Janice F. Madden, Do Racial Composition and
Segregation Affect Economic Outcomes in 
Metropolitan Areas? in Problem of the 
Century (Elijah Anderson & Douglas S.
Massey eds., 2001 )....................................................  21



X lll

Other Authorities (continued):

Manning Marable, The Great Walls of Democracy
(2002) .........................................................................  16

George S. Masnick, Harvard U., Home Ownership 
Trends and Racial Inequality in the United 
States in the Twentieth Century (2 0 0 1 ).................  15

Douglas S. Massey & Nancy A. Denton, American
Apartheid (1993) ......................................................  14

Douglas S. Massey & Mary J. Fischer, Does Rising 
Income Bring Integration? New Results for 
Blacks, Hispanics, and Asians in 1990, 28 
Soc. Sci. Res. 316(1999) .........................................  14

Messages and Papers of the Presidents, vol.
vm (1914) ........................................................ App. 2a

Ronald B. Mincy, The Urban Institute Audit Studies, 
in Clear and Convincing Evidence (Michael 
Fix & Raymond J. Struyk, eds. 1993) ........... .18

NAACP Legal Defense and Educational Fund, Inc.
Brief as Amicus Curiae in B a kke .......................... 29

TABLE OF AUTHORITIES (continued)

Page



XIV

TABLE OF AUTHORITIES (continued)

Page

Other Authorities (continued):

National Center for Health Statistics, Department of 
Health and Human Services Table 23,Infant 
Mortality Rates, Fetal Mortality Rates, and 
Perinatal Mortality Rates, According to Race 
(2001) ...................................................................................21

Office of Employment and Unemployment Statistics,
U.S. Bureau of Labor Statistics, Table A-19,
Usual Weekly Earnings of Employed Full-Time 
Wage and Salary Workers by Occupation, Sex,
Race and Hispanic Origin, 2002 Annual Averages 
(2003).........................................................................  18

Gary Orfield, The Growth of Segregation, in Dismantling
Desegregation (Gary Orfield et al. eds., 1996) . . .  17

Gary Orfield, Harvard U., Schools More Separate (2001). 14

Gary Orfield, Segregated Housing and School
Resegregation, in Dismantling Desegregation 
(Gary Orfield et al. eds., 1996) .................. 11, 12, 16

Gary Orfield & Dean Whitla, Diversity in Legal 
Education, in Diversity Challenged (Gary 
Orfield and Michael Kurlaender eds., 2 0 0 1 ) ...........6

Mary Pattillo-McCoy, Black Picket Fences 
(1999)................................ ............ .. 14, 19, 20



XV

TABLE OF AUTHORITIES (continued)

Page

Other Authorities (continued):

Benjamin Quarles, The Negro in the Making of
American History (3d ed. 1987)...................................7

Franklin Raines, What Equality Would Look Like, 
in The State of Black America 2002 (Lee A.
Daniels, ed.) (2 0 0 2 ).................................................. 22

David R. Roediger, The Wages of Whiteness
(rev. ed. 1999) .....................   8

Eric Schnapper, Affirmative Action and the 
Legislative History of the Fourteenth 
Amendment, 61 Va. L. Rev. 753 
(1985) .................................................  29, 30, App. 2a

Brian D. Smedley et al., Institute of Medicine of the
Nat’l Academies, Unequal Treatment (2003) . 20-21

Thomas J. Sugrue, Expert Report, Grutter v. Bollinger,
No. 97-75321 (E.D. Mich. December 15,
1998) ............................................................  11, 12, 15

Cass R. Sunstein, The AntiCaste Principle, 92 Mich.
L. Rev. 2410 (1994).................................................  28

Jacobus tenBroek, Equal Under Law (rev. ed. 1965) . . . .  29

Melvin E. Thomas et al., Discrimination Over the Life 
Course 41 Soc. Probs. 608 (1994) ................. 19



XVI

TABLE OF AUTHORITIES (continued)

Page

Other Authorities (continued):

Melvin E. Thomas, Race, Class, and Personal
Income, 40 Soc. Probs. 328 (1993) ........................  19

U.S. Bureau of Labor Statistics, Table A-2,
Employment Status of the Civilian Population 
by Race, Sex and Age (2003)................................... 18

Leland Ware & Antoine Allen, The Geography of
Discrimination: Hypersegregation, Isolation and 
Fragmentation Within the African-American 
Community, in The State of Black America 
(2002) .................................................................  15, 16

George Wilson et al., Reaching the Top: Racial
Differences in Mobility Paths to Upper-Tier 
Occupations, 26 Work & Occupations (1999) . . . .  19



BRIEF OF THE NAACP LEGAL DEFENSE AND 
EDUCATIONAL FUND, INC. AND THE AMERICAN 

CIVIL LIBERTIES UNION AS AMICI CURIAE 
IN SUPPORT OF RESPONDENTS*

Interest of Amici

The NAACP Legal Defense and Educational Fund, Inc. 
(“LDF”) is a non-profit corporation established under the laws 
of the State of New York. It was formed to assist black persons 
in securing their constitutional rights through the prosecution 
of lawsuits and to provide legal services to blacks suffering 
injustice by reason of racial discrimination. For six decades, 
LDF attorneys have represented parties in litigation before this 
Court and the lower courts involving race discrimination and 
various areas of affirmative action. LDF believes that its 
experience in and knowledge gained from such litigation will 
assist the Court in this case.

The American Civil Liberties Union (ACLU) is a 
nationwide, nonprofit, nonpartisan organization with more than 
300,000 members dedicated to the principles of liberty and 
equality embodied in the Constitution. Since its founding in 
1920, the ACLU has played an active role in the battle for 
racial justice and has long supported the constitutionality of 
affirmative action in appropriate circumstances, including filing 
a brief as amicus curiae in Regents o f the Univ. o f Cal. v. 
Bakke, 438 U.S. 265 (1978).

Summary of Argument

This country has journeyed a long and painful road toward 
racial integration that this case now threatens to destroy. For 
many African Americans, the force of this nation’s sordid and

‘Letters of consent by the parties to the filing of this brief have been 
lodged with the Clerk of this Court. Amici are counsel for defendant- 
intervenors in the companion case, Gratz v. Bollinger. No counsel for any 
party in Grutter v. Bollinger authored this brief in whole or in part, and no 
person or entity, other than amici, made any monetary contribution to its 
preparation.



2

all too recent history of apartheid still blocks their path. If there 
is any hope for this country to continue to make racial progress, 
it lies, at least in part, in the unique ability of colleges and 
universities to bring together persons of all racial backgrounds 
to achieve the educational benefits of diversity and, ultimately, 
to create a more just, racially integrated society.

More than 300 years of slavery, segregation, and invidious 
discrimination by public and private actors have produced a 
systemic racial hierarchy that continues to this day. Numerous 
studies document continuing widespread racial inequality in 
virtually every aspect of our society, including education, 
employment, income, housing, health care, life expectancy, 
criminal justice, and in the accumulation of wealth. These 
studies demonstrate the impact that race has in molding the 
opportunities, experiences, and outlook of the overwhelming 
majority of African Americans, including the black middle 
class. The impact of race stretches across all economic strata 
and extends even to those arguably best positioned to capture 
the benefits of race-neutral policies. While class is an 
important factor in accounting for opportunity, it is 
demonstrably incorrect at this relatively early stage in our 
country’s progress on race to assert that class alone uniquely 
shapes economic, social, and political opportunity in this 
country. In short, race matters, significantly —  not because it 
should, but because it does.

Yet the Court’s jurisprudence, including notably its 
discussion of “societal discrimination” in Bakke,1 has cast a pall 
over the ability of state and local actors to remedy voluntarily 
the powerful imprint of racial discrimination on our society. 
The Court’s affirmative action cases refer only in passing, if at 
all, to our country’s undeniable and tragic history of racial 
oppression. The cumulative, inter-generational consequences 
of such racial subordination are dismissed as mere “societal

1Regents o f the Univ. o f Cal. v. Bakke, 438 U.S. 265 (1978).



3

discrimination,” for which no institutional actor may be held 
accountable, even those that have been complicit in 
perpetuating racial disadvantage.

A principal objective of the Fourteenth Amendment was to 
mitigate the enormous burdens of African Americans emerging 
from slavery. It is a perversion of its purpose to prohibit 
modest state efforts, such as the University of Michigan Law 
School’s admissions program, to redress systemic racial 
inequity.

ARGUMENT

It is because o f a legacy o f unequal treatment that 
we now must permit the institutions o f this society 
to give consideration to race in making decisions 
about who will hold the positions o f influence, 
affluence, and prestige in America. For fa r  too 
long, the doors to those positions have been shut to 
Negroes. I f  we are ever to become a fully  
integrated society, one in which the color o f a 
person’s skin will not determine the opportunities 
available to him or her, we must be willing to take 
steps to open those doors. I  do not believe that 
anyone can truly look into America’s past and still 
fin d  that a remedy fo r  the effects o f that past is 
impermissible.

Justice Thurgood Marshall, in his Bakke dissent2

I. Race-Sensitive Admissions Policies Further the 
Compelling Goals of Diminishing the Effects of 
Deepening Racial Segregation and of Preserving 
Opportunities in Higher Education for African 
Americans

Racial segregation and isolation continue to be a menace in

243 8 U.S. at 401-02.



4

this society, producing and perpetuating sharp disparities in the 
quality of life and opportunities for advancement of African 
Americans. Their manifestation in the continued scourge of 
residential segregation leaves institutions of higher education 
as one of the few venues for meaningful cross-racial 
interaction.3

In the context of primary and secondary schools, this Court 
has already all but abandoned the judicial task of requiring 
school districts to remedy racial segregation, severely limiting 
the circumstances, means, and duration of desegregation 
remedies. See e.g., Missouri v. Jenkins, 515 U.S. 70 (1995); 
Freeman v. Pitts, 503 U.S. 467 (1992); l3d. ofEduc. o f Okla. 
City v. Dowell, 498 U.S. 237 (1991); Milliken v. Bradley, 418 
U.S. 717 (1974). Even in so doing, however, it has 
acknowledged that “the potential for discrimination and racial 
hostility is still present in our country, and its manifestations 
may emerge in new and subtle forms after the effects of de jure 
segregation have been eliminated.” Freeman, 502 U.S. at 490.

Voluntary race-conscious admissions policies by colleges 
and universities remain one of the sole avenues for seeking to 
mitigate the stubborn vestiges of past wrongs, ameliorating the 
effects of ongoing discrimination, and increasing the 
participation of all members of our society. Indeed, this Court, 
in Shaw v. Reno, 509 U.S. 630 (1993), stated that our 
Constitution encourages us to weld together various racial and 
ethnic communities, and to avoid the racial balkanization that 
has plagued other nations. Id. at 648-49. See also Miller v. 
Johnson, 515 U.S. 900,911 (1995). Race-sensitive admissions 
policies strive to do just that by fostering racial integration in 
our nation’s schools and interaction between individuals from

3See generally ERICA FRANKENBERG & CHUNGMEI Lee , HARVARD U., 
Race in American  Public Schools (2002), available at 
http://www.civilrightsproiect.harvard.edu/research/deseg/reseg schoolsO 
2.php.

http://www.civilrightsproiect


5

diverse backgrounds.

Indeed, studies show that meaningful cross-racial interaction 
in institutions of higher learning has significant social and 
educational benefits. The more racially diverse a student body, 
the more likely that students will socialize across racial lines 
and talk about racial matters.4 These interactions have a 
positive impact on student retention, overall college 
satisfaction, and intellectual and social self-confidence among 
all students.5 Faculty have also reported that racial and ethnic 
diversity in the classroom helps students broaden the sharing of 
experiences, raise new issues and perspectives, confront 
stereotypes relevant to social and political issues, and gain 
exposure to perspectives with which they disagree or do not 
understand.6

This Court noted over fifty years ago that law school 
provides a particularly important environment for meaningful 
cross-racial interaction:

The law school, the proving ground for legal learning and
practice, cannot be effective in isolation from the
individuals and institutions with which the law interacts.
Few students and no one who has practiced law would
choose to study in an academic vacuum, removed from the

ASee, e.g., Mitchell J. Chang, The Positive Educational Effects o f Racial 
Diversity on Campus, in DIVERSITY CHALLENGED 175, 183 (Gary Orfield 
and Michael Kurlaender eds., 2001). See also W illiam G. Bowen & 
Derek Bok , The Shape of the River 232 (1998) (56% of white 
matriculants and 88% of black matriculants of selective colleges and 
universities who enrolled in 1989 indicated that they “knew well” two or 
more classmates of the other race).

5See Chang, supra n. 4.

6Roxane Harvey Gudeman, Faculty Experience with Diversity, in 
Diversity Challenged supra n. 4, at 251, 271. See also Brief Amicus 
Curiae of the Equal Employment Advisory Council in Support of Neither 
Party, Grutter v. Bollinger (No. 02-241).



6

interplay of ideas and the exchange of views in which the 
law is concerned.

Sweatt v. Painter, 339 U.S. 629, 634 (1950). Given the deep 
racial isolation that still exists in our society, such exchange of 
views between individuals of diverse racial and ethnic 
backgrounds is a critical life tool for all students.7

In the absence of other means for redressing systemic racial 
disparity, Justice Powell’s opinion in Bakke has been crucial to 
opening up opportunity for African Americans and other racial 
minorities, in a way that has helped begin to create a pipeline 
of racially diverse leaders and has fostered the fuller 
participation of previously dispossessed segments of our 
society. It is critical that colleges and universities retain the 
limited ability to rely on race, not only to achieve the 
educational benefits of diversity but also so that such 
institutions may continue the long road toward a more just and 
equitable society.

II. Historical Racial Oppression by Governmental and 
Private Actors and Ongoing Discrimination Continue 
To Affect Significantly the Lives and Opportunities of 
African Americans

Any meaningful evaluation of the need for race-sensitive 
admissions policies at the University of Michigan or at any 
other college or university must first take account of the central 
role that slavery, racial segregation, and systematic racial 
oppression by public and private actors have played in 
depriving generations of African Americans of social, political, 
and economic opportunity, while concurrently according 
profound advantages to whites.

’White students have been found to have a particularly enriching 
experience, since they are so likely to have grown up with little interracial 
contact. Gary Orfield & Dean Whitla, Diversity in Legal Education, in 
Diversity Challenged supra n. 4, at 143,172.



7

A. Slavery and Jim Crow Constituted An Unbroken Chain 
of Racial Oppression That Remained Intact Until the 
Second Half o f the Twentieth Century

From the framing of the Constitution, governmental and 
private actors legitimized and strengthened a system of 
apartheid that enslaved African Americans.8 The original 
Constitution sanctioned and preserved the institution of 
slavery;9 Congress passed laws that bolstered slavery;10 and 
federal and state courts perpetuated the subjugation and 
dehumanization of even free blacks through decisions that 
concretized racial oppression.11 The most abhorrent of these 
cases was Dred Scott v. Sandford, 60 U.S. (19 How.) 393 
(1857), which eviscerated any real distinctions between slaves 
and free blacks.12

sSee, e.g., Richard Kluger, Simple justice 27-28 (1975).

9See U.S. CONST, art. I, § 9 (providing for the importation of slaves until 
at least 1808); U.S. CONST, art. IV, § 2 (capture and return of slaves to their 
masters); U.S. CONST, art. IV § 4, art. I, § 8 (suppression of slave 
rebellions); U.S. CONST, art. I, § 9 (barring taxes on exports produced by 
slaves); U.S. CONST, art. I, § 2 (treating slaves as three-fifths of a person), 
generally amended by U.S. CONST, amends. XIII, XIV, XV.

10The Fugitive Slave Law of 1850 empowered the federal government 
to apprehend fugitives. See, e.g., BENJAMIN QUARLES, THE NEGRO IN THE 
Making of American History 107 (3d ed. 1987). In most Southern states, 
free blacks could not hold public office, vote, testify against a white person, 
use a firearm, freely assemble, or travel freely between the states. Id. at 87- 
88 .

nSee, e.g., Moore v. Illinois, 55 U.S. (14 How.) 13 (1852); Prigg v. 
Pennsylvania, 41 U.S. (16 Pet.) 539 (1842); Groves v. Slaughter, 40 U.S. 
(15 Pet.) 449 Roberts v. City of Boston, 59 Mass. (5 Cush.) 198,206
(1850).

i2A11 blacks were “regarded as beings of an inferior order. . .  altogether 
unfit to associate with the white race, either in social or political relations; 
and so far inferior, that they had no rights which the white man was bound 
to respect.. . . ” 60 U.S. (19 How.) at 407.



8

Even after the abolition of slavery and the ratification of the 
Fourteenth Amendment in 1868, public and private actors 
maintained a strict racial caste system that subjugated African 
Americans in every way.13 The Hayes-Tilden Compromise of 
1877, which authorized the withdrawal of federal protection of 
former slaves,14 removed the last obstacle to reinstating a 
system of white supremacy in the South. Southern whites 
embarked upon widespread lynching and terrorism against 
blacks,15 and a campaign of voter intimidation denied blacks 
the right to have any voice in the political process.16 State 
legislatures approved voting requirements specifically designed 
to eliminate the black vote, such as poll taxes and literacy

13In the American racial hierarchy, blacks have long endured a 
particularly virulent form of antagonism and persecution unmatched by other 
racial and ethnic groups. See, e.g, David R. Roediger, The W ages of 
W hiteness 14 (rev. ed. 1999) ([T]he white working class, disciplined and 
made anxious by fear of dependency, began. . .  to construct an image of the 
Black population as ‘other’—as embodying the preindustrial, erotic, careless 
style of life the white worker hated and longed for.”); STANLEY LlEBERSON, 
A Piece of THE P ie (1980) (focusing on particular hardships blacks faced 
compared to white ethnics); T. Alexander Aleinikoff, A Case fo r  Race- 
Consciousness, 91 Colum . L. Rev . 1060, 1124 (1991) (“[W]hen the 
ingenious American devices for excluding blacks from society are 
contrasted with the assimilationist welcome accorded immigrants, one can 
quickly . . . formulate a sensible answer to the question that lies deep in 
many white minds: why can’t blacks do what my immigrant ancestors 
did?”).

lASee A. Leon Higginbotham, Shades of Freedom 91- 93 (1996).

15From 1884-1900, there were over 2,500 lynchings, the great majority, 
blacks in the South. See, e.g., John Hope Franklin & Alfred A. Moss, 
Jr., From Slavery to Freedom 282 (6th ed. 1988); see also generally 
Ralph Ginzburg, 100 Years of Lynchings (1988); James Allen, et al„ 
W ithout Sanctuary (2000).

16See, e.g., KLUGER, supra n. 8, at 59-60.



9

tests.17 Consequently, blacks lacked the power to vote out the 
very governments that imposed the rigid hegemonic system that 
denied them resources and full citizenship.

A series of decisions by this Court ratified the denial to 
blacks of the rights of full citizenship. In the Civil Rights 
Cases, 109 U.S. 3 (1883), the Court declared unconstitutional 
the Civil Rights Act of 1875, which had outlawed racial 
segregation in public accommodations. After more than two 
hundred years of systemic white supremacy, in which 
governmental resources had been routinely employed to 
perpetuate the institution of slavery, the Court held that any 
remedy for racial injustice was beyond Congress’s power.18 In 
Plessy v. Ferguson, 163 U.S. 537 (1896), this Court delivered 
the implicit deathblow to the civil rights of African Americans, 
with the “separate but equal” doctrine. This paved the way for 
the extension of white supremacy to all areas of social life, 
particularly education.

By 1900, every Southern state had enacted laws requiring 
separate schools for blacks and whites. As blacks migrated to 
the North in the first part of the twentieth century, they were

"H igginbotham, supra n. 14, at 174(1996). As one Mississippi judge 
candidly commented, “there has not been a full vote and a fair count in 
Mississippi since 1875... we have been preserving the ascendancy of white 
people b y . . .  stuffing the ballot boxes, permitting perjury and . . .  carrying 
the elections by fraud and violence.” Id.

18In language that resembles some of this Court’s modern affirmative 
action jurisprudence, the Court observed:

When a man has emerged from slavery, and by the aid of beneficent 
legislation has shaken off the inseparable concomitants of that state, 
there must be some stage in the progress of his elevation when he takes 
the rank of a mere citizen, and ceases to be the special favorite of the 
laws, and when his rights as a citizen, or a man, are to be protected in 
the ordinary modes by which other men’s rights are protected.

109 U.S. at 25.



10

urged, if not forced, to attend segregated schools. Indeed, for 
the first half of the twentieth century, the majority of African- 
American children were confined to impoverished, short-term 
schools. By 1930, $7 was spent for whites to every $2 spent for 
blacks.19 These separate and unequal schools helped to 
perpetuate the mythology of white supremacy and paralyzed 
any hope of black advancement.

In higher education, the disingenuous creed of “separate but 
equal” restricted blacks to segregated institutions. See Sweatt, 
339 U.S. 629; Sipuel v. Okla. State Regents, 332 U.S. 631 
(1948); Missouri ex rel. Gaines v. Canada, 305 U.S. 337 
(1938). It was not until Brown v. Board o f Education, 347U.S. 
483 (1954), decided two generations later, that this Court really 
began to undo this nation’s sordid history of racial oppression. 
Even after this momentous decision, however, it would be 
years before many of this nation’s elementary and secondary 
schools and colleges would readily open their doors to African 
Americans.20

Meanwhile, both before and after Brown, the federal 
government carried out a series of policies that created and

19Frankun & Moss, supra n. 15, at 361-62.

20Until the passage of the 1964 Civil Rights Act, the Executive Branch 
had no power to enforce Brown’s mandate for school desegregation. By 
1969, the federal government virtually ceased to exercise that power, once 
again leaving the responsibility for constitutional compliance to the courts. 
Cfi Adams v. Richardson, 480 F.2d 1159, 1164-65 (D.C. Cir. 1973) 
(observing the Executive Branch’s considerable delay in enforcing the 
desegregation of higher learning institutions through Title VI). This Court’s 
rulings rejecting metropolitan desegregation in Milliken, 418 U.S. 717, and 
financial equalization of schools in San Antonio Indep. Sch. Dist. v. 
Rodriguez, 411 U.S. 1 (1973), sharply restricted judicial authority as well. 
Erica Frankenberg et al„ Harvard U„ A Multiracial Society with 
S e g r e g a t e d  S c h o o l s  8 ( 2 0 0 3 ) ,  a v a i l a b l e  a t
h t tp : / /www .c iv i l r i gh t spr o jec t .harva rd .edu /r es ea rch/ re seg03/  
AreWeLosingtheDream.pdf.

http://www.civilrightsproject.harvard.edu/research/reseg03/


11

perpetuated a system of residential segregation, the effects of 
which are still manifest today.21 Starting with the New Deal, 
“federal housing policies translated private discrimination into 
public policy”22 and officially endorsed the discriminatory 
practices of real estate developers, banks, mortgage brokers, 
appraisers, and insurance agents.23 Blacks were confined to 
overcrowded, overpriced, and deteriorating “ghettos” whose 
inferior services included inadequate, segregated schools.24 
Many black communities were completely isolated by an iron 
curtain of legally enforceable covenants on all sides, which 
created massive overcrowding, a “race tax” on housing prices, 
and deterioration of housing within predominantly black 
neighborhoods.25 The sorry legacy of these policies persists 
long after the enactment of fair housing laws, as fears of the 
“black ghetto” contribute to racial discrimination and flight 
from integrated neighborhoods.26

21 See Nancy A. Denton, The Persistence o f Segregation: Links Between 
Residential Segregation and School Segregation, 80 MINN, L. Rev . 795, 
801-06 (1996).

22 See Expert Report of Thomas J. Sugrue, Grutter v. Bollinger, No. 97- 
75321 (E.D. Mich. December 15, 1998) at 27.

22See generally KENNETH T. JACKSON, CRABGRASS FRONTIER 196-218 
(1985).

2iSee, e.g., Civil Rights Project, Harvard U. & Lewis M umford 
Ctr. For Comparative Urban & Regional Research, State U. ofNew 
York at Albany, Housing Segregation 2-4 (2001), available at 
http:ZAvww.civiMghtsproject.harvard.edu/research/metro/callJhousinggar 
y.php; Gary Orfield, Segregated Housing and School Resegregation, in 
Dismantling Desegregation 291, 304-330 (Gary Orfield et al. eds., 
1996).

250rfield, supra n. 24, at 304.

26Civil Rights Project & Lewis Mumford Ctr ., supra n. 24, at 2. 
Even after this Court outlawed restrictive covenants in Shelley v. Kraemer, 
334 U.S. 1 (1948), the FHA Underwriting Manual cautioned against the



12

Through the 1960s, federal “urban renewal” strategies 
devastated black neighborhoods and pushed blacks further into 
racially isolated, economically depressed areas.27 “Slum 
clearance” leveled black communities to produce new 
developments near downtown areas, and displaced black 
families into segregated housing markets. This has created new 
isolated pockets of poverty, reinforced racial ignorance and 
hostility against blacks, and set in motion a catastrophic 
economic avalanche that further circumscribed blacks’ access 
to capital. The federal government’s calculated involvement in 
these discriminatory housing policies not only reinforced 
already established patterns of racial isolation and subjugation, 
it lent them “a permanence never before seen” that “virtually 
constituted a new form of de jure segregation”28 and 
contributed to the existing racial isolation in this country’s 
schools.

Predominantly black or mixed-race neighborhoods seldom 
received federal mortgages and loan guarantees, a practice that 
continued into the 1970s. To this day, private banks patterned 
their lending policies after the FHA’s discriminatory practices, 
which extended the reach of such practices deep into the private 
sector.29 Private banks continue to prey on African American 
homeowners through “reverse redlining” practices that offer 
excessive loans at exorbitant fees. This has the effect of further

introduction of “incompatible” groups into a neighborhood and encouraged 
appraisers to rely on physical barriers to guarantee the separation of whites 
and blacks. See, e.g., Orfield, supra n. 24, at 305; Sugrue, supra n. 22, at 
27. These federal policies paved the way for violent assaults — including 
stone throwing, vandalism, arson, and physical attacks — on blacks who 
moved into white neighborhoods. Sugrue, supra n. 22, at 28.

270rfield, supra n. 24, at 305-06.

28 ARNOLD HlRSCH, MAKING THE SECOND GHETTO 254-55 (2d ed. 1998).

29See, e.g., Sugrue, supra n. 22, at 27-28.



13

destabilizing black neighborhoods and impeding black 
economic development.30

These systemic government actions, in concert with 
discriminatory private behavior, continued to deny equal 
opportunity to African Americans. The combined force of 
public and private discrimination for more than 300 years has 
had a devastating impact on all aspects of black social, 
educational, political, and economic opportunity in America.

B. The Cumulative Effect of Generations of Racial 
Subordination and Continued Discrimination Has 
Produced Stark Inequality Which, By Any Measure, 
Leaves African Americans Significantly Disadvantaged

Race remains the critical dividing line in American society. 
More than 300 years of calculated and profound racial 
persecution by public and private actors have produced an 
entrenched racial hierarchy that pervades every facet of life in 
this country. Twenty-five years after the Court ruled in Bakke 
that race-conscious admissions policies were constitutionally 
permissible, some African Americans have made significant 
progress as a result of opportunities that were once denied. 
Nevertheless, widespread racial inequality remains a 
fundamental fact of American life, including for the current 
generation of college, graduate, and professional school 
applicants who have grown up in a deeply racially fragmented 
society. Until race ceases to be the barometer of economic, 
social, and political opportunity, it will continue to be an 
essential factor in higher education admissions.

30See Calvin Bradford, Center for Community Change, Risk or 
Race? Racial Disparities and the Subprime Refinance Market (2002); 
see id. at vii (“Lower-income African-Americans receive 2.4 times as many 
subprime loans as lower-income whites, while upper-income African- 
Americans receive 3.0 times as many subprime loans as do whites with 
comparable incomes.”).



14

The legacy of racial subjugation is acutely evident in the 
persistence of residential segregation. Where one lives affects 
one’s schooling, peer groups, safety, job options, insurance 
costs, political clout, access to public services, home equity, 
and, ultimately, wealth.31 While America has become 
increasingly racially diverse, blacks in major metropolitan areas 
continue to be extremely racially isolated in a manner unlike 
any other ethnic group in this country.32 This is true for all 
black Americans, regardless of income level.33 Even middle 
class black Americans tend to live in areas with a higher 
concentration of poverty, higher crime rates, and less access to 
services than white neighborhoods.34 Blacks are also less likely

31Douglas S. Massey & Nancy A. Denton, American Apartheid 
235 (1993).

32See, e.g., JOHN ICELAND, ETAL., U.S. CENSUS BUREAU, RACIAL AND
Ethnic Segregation in the United States: 1980-2000 3-4 (2002); 
Massey & Denton, supra n. 31, at 77.

33See, e.g., Massey & Denton, supra n. 31, at 84-87 (noting that blacks 
in Detroit are extremely racially isolated regardless of income); Douglas S. 
Massey & Mary J. Fischer, Does Rising Income Bring Integration? New 
Results for Blacks, Hispanics, and Asians in 1990, 28 SOC. SCI. Res. 316, 
317 (1999) (finding that blacks “continue to lag well behind other groups in 
achieving integration, irrespective of social class.”); Mary Pattillo- 
McCoy, Black Picket Fences 27 (1999) (“African Americans have long 
attempted to translate socioeconomic success into residential mobility, 
making them similar to other ethnic groups. They desire to purchase better 
homes, [to live in] safer neighborhoods, [and to attend] higher quality 
schools . . . with their increased earnings. . . . The black middle class has 
always attempted to leave poor neighborhoods, but has never been able to 
get very far.”) (citation omitted).

34Camille Zubrinsky Charles, Socioeconomic Status and Segregation: 
African Americans, Hispanics and Asians in Los Angeles, in PROBLEM OF 
THE Century 284-85 (Elijah Anderson & Douglas S. Massey eds., 2001). 
See also Gary Orfield, Harvard U., Schools More Separate 11,17 
(2001) (“Even most of the middle class minority families who move their 
children to the suburbs find themselves in heavily minority schools, often



15

to own homes than whites. While home ownership increased 
to an overall rate of 66.8% in 1999, a disparity of 26% 
remained between black and white ownership rates.35

In Michigan, the vast majority of whites and blacks live in 
separate worlds. In 2000, Detroit ranked as the most racially 
segregated city of the 50 largest metropolitan areas in this 
nation.36 Within the last decade, four other Michigan 
metropolitan areas have ranked in the nation’s top twenty-five 
most racially segregated urban areas.37 This extreme racial 
isolation is a direct result of a history of state-backed 
discriminatory policies and practices,38 and continuing private

schools with limited educational success.”); Richard D. Alba et al., How 
Segregated are Middle-Class African Americans? 47 Soc.Probs. 543,556 
(2000) (“At no point do blacks attain residential parity with whites—that is, 
the communities in which they reside have less affluence and other less 
desirable characteristics (e.g., more crime) than the communities where 
whites with similar personal and household characteristics are found.”); John 
R. Logan & Brian J. Stults, Racial Differences in Exposure to Crime: The 
City and Suburbs o f Cleveland in 1990, 37 CRIMINOLOGY 251, 270 (1999) 
(concluding that residential segregation restricts affluent African Americans 
to neighborhoods with “more than double the violent crime rate to which 
poor whites are exposed.”).

35Geqrge S. M asnick, Harvard U., Home Ownership Trends and 
Racial Inequality in the United States in the Twentieth Century, 
22, 24 (2001) available at http://www.ichs.harvard.edu/publications/ 
homeown/masnick_wO 1 -4.pdf.

36Leland Ware & Antoine Allen, The Geography o f Discrimination: 
Hypersegregation, Isolation and Fragmentation Within the African- 
American Community, in THE STATE OF BLACK AMERICA 2002 69,74 (Lee 
A. Daniels ed., 2002).

37Sugrue, supra n. 22, at 22.

38As Detroit’s white population suburbanized, opposition to racial 
diversity reached into suburban communities. In Dearborn, city officials 
collaborated with real estate firms to fight against mixed-income housing 
which, they asserted, would become a “dumping ground” for blacks and 
other minorities. Today, Dearborn is predominantly white, while Detroit,

http://www.ichs.harvard


16

discrimination.39

Such persistent racial segregation has had profound 
consequences for black Americans, particularly in the area of 
education. Fifty years ago, Brown signaled the promise of a 
more racially inclusive society; today, however, we are more 
than a decade into the continuous resegregation of American 
public schools. The racial isolation of black students has 
increased to levels not seen in three decades. The nation’s 
largest city school systems are, almost without exception, 
overwhelmingly nonwhite. White students are the most 
segregated; on average, they attend schools where eighty 
percent of the student body is white.40

This racial balkanization of American schools is a direct 
result of the deeply rooted racial caste system that continues to 
permeate our society and to wreak havoc on the life 
opportunities of black children. This Court correctly ruled 50 
years ago in Brown that “separate is inherently unequal.” Yet, 
one-sixth of all black students in the nation and one-fourth of 
black students in the Northeast and Midwest are educated in 
virtually all-non-white schools that have concentrations of 
enormous poverty and very limited resources.41 Segregated 
schools have lower average test scores, fewer qualified 
teachers, and fewer advanced courses.42 Many black students, 
regardless of their family income, have markedly diminished

its neighbor, is predominantly black. See Sugrue, supra n. 22, at 29.

39Ware & Allen, supra n. 36, at 76 (at least one in four blacks seeking 
housing today can expect to encounter some form of housing 
discrimination).

40Frankenberg et al., supra n. 20, at 4-5.

41 Id. at 5.

42Id. at 11.



17

opportunities for educational, social, and economic 
advancement.43 The same cannot be said for the majority of 
poor white Americans.44

The persistence of residential segregation and these 
disparate educational opportunities are compounded by the 
continued exclusion of African Americans from full 
participation in the political process. Even today, racially 
polarized voting remains as pervasive in many parts of the 
country45 as it was almost forty years ago when Congress 
enacted the Voting Rights Act of 1965, 42 U.S.C. § 1973 
(2002), for the purpose of dismantling the many invidious 
practices that denied the franchise to black voters.46

The specter of apartheid also haunts African Americans’ 
opportunity for occupational advancement. The risk of 
unemployment looms larger for African Americans than for 
Vvhites, both in good economic times and in bad.47 Despite the

43These inequalities also extend to the treatment of black and white 
youth in the criminal justice system. Young blacks who are arrested and 
charged with a crime are more than six times more likely to be sentenced to 
prison than similarly situated whites. Manning Marable, The Great 
Walls of Democracy 158 (2002).

^Gary Orfield, The Growth o f Segregation, in DISMANTLING 
Desegregation, supra n. 24, at 53 (most segregated African-American 
and Latino schools are dominated by poor children, but 96 percent of white 
schools have middle-class majorities).

4SEven after the most recent round of redistricting, there continue to be 
judicial findings of “highly racially polarized voting.” See, e.g.,Georgia v. 
Ashcroft, 195 F. Supp. 2d 25, 88 (D.D.C. 2002), prob. juris, noted, 71 
U.S.L.W. 3486, 2003 D.A.R. 698 (U.S. 2003).

46See, e.g., South Carolina v. Katzenbach, 383 U.S. 301, 308-09, 315 
(1966) (describing the purpose of the Voting Rights Act); Beer v. United 
States, 425 U.S. 130, 140 (1976) (quoting H.R. Rep. No. 196, 94th Cong., 
1st Sess. 57-58 (1975)) (same).

47 For example, while the white male unemployment increased from 4.6



18

enactment of federal and state anti-discrimination laws, 
employment discrimination against African Americans still 
exists across all regions, in all industries and in all occupations, 
affecting as many as 2 million minority and female workers.48 
For the 2002 year, both the mean and median weekly earnings 
of whites exceeded those of blacks in virtually every 
occupational group.49 All factors being equal, blacks on 
average are less likely to receive job offers than whites.50 This 
discrimination exacerbates the barriers already created by 
segregated social networks and informational bias that infects 
employment opportunity for blacks.51 Access to the highest

to 4.9 percent during the period from January, 2002 to January, 2003, black 
male unemployment jumped from 8.8 to 10.3 percent over the same time 
period. As of January, 2003, black teenage unemployment stood at 30.4% 
compared to 15.2 for comparably aged whites. U.S. Bureau of Labor 
Statistics, Table A-2, Employment Status ofthe Civilian Population 
BY R a c e , S e x  a n d  AGE, ( 2 0 0 3 )  a v a i l a b l e  a t  
http://www.bls.gov/news.release/ empsit.t02.htm.

48Alfred W. Blumrosen & Ruth G. Blumrosen, The Reality of 
Intentional Job Discrimination in Metropolitan America— 1999,230 
(1999) available at http://www. eeol.com/1999_NR/ Chapterl7.pdf.

450 ffice of Employment and Unemployment Statistics, U.S. 
Bureau of Labor Statistics, table a-19, Usual Weekly Earnings of 
Employed Full-Time Wage and Salary Workers by Occupation, Sex, 
Race and Hispanic Origin, 2002 Annual Averages, at 13-16, 25-28. 
(Unpublished and available by contacting Bureau of Labor Statistics).

50Harry J. Holzer, Race Differences in Labor Market Outcomes Among 
Men, in 2 AMERICA BECOMING 106 (Neil J. Smelser et al. eds., 2001); 
Ronald B. Mincy, The Urban Institute Audit Studies, in CLEAR AND 
Convincing Evidence 173-74 (Michael Fix & Raymond J. Struyk, eds. 
1993).

5IJomills Henry Braddock II & James M. McPartland, How Minorities 
Continue to be Excluded from Equal Employment Opportunities A3  J. OF 
SOC. Issues 27 (1987); see also Harry J. Holzer & Keith R. Ihlanfeldt, 
Customer Discrimination and Employment Outcomes for Minority Workers, 
113Q.J.OFECON. 835-67 (1998).

http://www.bls.gov/news.release/_empsit.t02.htm
http://www


19

paying occupations is also much more restricted for African 
Americans than whites both in terms of the range of positions 
available, compensation, and the educational and experience 
requirements for selection.52 Such racial discrimination persists 
across all class levels and affects even those African Americans 
with advanced skills and credentials.53

Despite modest economic progress, the black middle class 
still lags overwhelmingly behind their white counterparts in 
income and occupational status. The salience of race, over 
class, in determining socioeconomic mobility became more 
pronounced in the 1980s when “60 percent of whites but only 
36 percent of African Americans from upper-white-collar 
backgrounds were able to maintain their parents’ occupational 
status.” Lower middle class whites also proved more upwardly 
mobile, with more than half finding their way into upper middle 
class jobs, “compared to only 30 percent of blacks.” African 
Americans were also more downwardly mobile.54

52Marlese Durr & John R. Logan, Racial Submarkets in Government 
Employment, 12 Soc. F. 353-70 (1997); Sharon M. Collins, The 
Marginalization o f Black Executives, 36 SOC. PROBS. 317-31 (1989); 
Sharon M. Collins, Blacks on the Bubble, 34 Soc. Q. 429-47 (1993); 
Melvin E. Thomas, Race, Class and Personal Income, 40 SOC. PROBS. 328, 
339-40 (1993); Melvin E. Thomas et al., Discrimination Over the Life 
Course, 41 SOC. PROBS. 608-28 (1994); George Wilson et al., Reaching the 
Top: Racial Differences in Mobility Paths to Upper-Tier Occupations, 26 
W ork & Occupations 165,166,175 (1999).

53Marianne Bertrand & Sendhil Mullainathan, Are Emily and 
Brendan More Employable than Lakisha and Jamal? A Field 
Experiment on Labor Market Discrimination, 1, 14-15 (2002) 
available at http://gsb.uchicago.edu/pdf/bertrand.pdf.

siSee, e.g., MARY Patitllo-McCOY, supra n. 33, at 21; see id. (“In 
income, the gap between what whites earn and what African Americans earn 
has not shown signs of narrowing since the early 1970s. For younger 
workers, the gap may in fact be increasing. The reversal of the trend toward 
earnings equality is especially pronounced among college-educated African 
Americans, partly because of their concentration in declining sectors of the

http://gsb.uchicago.edu/pdf/bertrand.pdf


2 0

By 1995, the percentage of black workers in middle class 
occupations had grown to half, “while 60 percent of whites had 
middle class jobs.” Yet even these figures mask the significant 
differences in occupational distribution between the black and 
white middle class, with blacks tending to occupy lower paying 
jobs with less prestige.55

Not surprisingly, this lack of black occupational opportunity 
has resulted in continued racial disparities in access to capital 
and in the accumulation of wealth. As of 2000, 22.1% of 
African Americans lived below the federal government’s 
poverty line, compared to 7.5% of white non-Hispanics.56 
Between 1984 and 1999, the mean household wealth for white 
families increased from $51,600 to $103,600; for black 
families, it rose from a meager $6,100 to $9,100.57

African Americans also suffer from less adequate health 
services and treatment relative to whites. This is true across a 
variety of medical conditions, and occurs independently of 
insurance status, income, and education, among other factors 
that influence access to healthcare. These disparities are 
markedly present in the care that African Americans receive for 
cardiovascular conditions, various cancers, strokes, kidney 
disease, HIV/AID8, diabetes, and mental health. Moreover, 
these disparities are associated with greater mortality among 
African-American patients.58 African Americans experience

economy . . . . ”).

55Mary Pattillo-McCoy, supra n. 33, at 21-22.

56Joseph Dalaker, U.S. Census Bureau, Poverty in the United 
States, 2000 4 (2001).

57Joseph Lupton & Frank Stafford, Household Financial Wealth, 
(Thousands o f 1999 Dollars), Institute for Social Research (Jan. 2000), 
available at http://www.isr.umich.edu/src/psid/wealthcomp.pdf.

58Brian D. Smedley et al., Institute of Medicine of the Nat’l

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21

infant morality rates two to three times that of whites and have 
a lower life expectancy.59

Despite significant progress by some African Americans, the 
chasm between blacks and whites remains enormous.60 In the 
absence of slavery, de jure segregation and persistent “societal 
discrimination,” this generation of applicants might have lived 
in a society where 700,000 more African Americans have jobs, 
and nearly two million more African Americans hold higher 
paying and managerial jobs. They might have lived in a society 
where the average African-American household earns 56% 
more than at present, and altogether, African-American 
households earn another $190 billion.

Similarly, the wealth of black households would have risen 
by $ 1 trillion. African Americans might have had $200 million 
more in the stock market, $120 billion more in our pension 
plans, and $80 billion more in the bank. African Americans 
could have owned over 600,000 more businesses, with $2.7 
trillion more in revenues. There might have been 62 African 
Americans running Fortune 500 companies, rather than three. 
Two million more African Americans could have high school 
diplomas, and nearly two million more could have 
undergraduate degrees. Close to ahalf-million more could have 
master’s degrees. If racial disparities did not exist in health

Academies, Unequal Treatment, 42-79, 59 (blacks less likely to be 
found eligible for transplants, to appear on transplant waiting lists, and to 
undergo transplant procedures, even after controlling for patients’ insurance 
and other factors) (2003).

59 N ational Center for Health Statistics, Department of Health 
and Human Services, Table 23, Infant Mortality Rates, Fetal Mortality 
Rates, and Perinatal Mortality Rates, According to Race (2001), available 
at http://www.cdc.gov/ nchs/data /hus/tables/2001/01hus023.pdf.

mSee Janice F. Madden, Do Racial Composition and Segregation Affect 
Economic Outcomes in Metropolitan Areas?, in PROBLEM OFTHECENTURY, 
supra n. 34, at 314.

http://www.cdc.gov/_nchs/data_/hus/tables/


2 2

insurance rates, 2.5 million more African Americans, including 
620,000 children, could have health insurance. Three million 
more African Americans might have owned homes.61

The inescapable conclusion is that this is not a “color blind” 
society where opportunity is singularly determined according to 
individual ability. Rather, it is a socially-constructed racial 
hierarchy with whites firmly on top. The only other 
conceivable explanation — that this gross inequality is the 
consequence of a natural order of black inferiority and white 
supremacy —  is, of course, wholly unacceptable.62

III. The Fourteenth Amendment Should Not Be 
Interpreted to Frustrate Voluntary State Efforts, 
Using Race-Conscious Remedies, to Eliminate the 
C o n t in u in g  E f fe c t s  o f  S t a t e -S p o n so r e d  
Discrimination.

As detailed above, this country faces a crisis of racial 
inequality, which has had the ripple effect of removing untold 
numbers of African Americans from the pool of individuals

s1Franklin D. Raines, What Equality Would Look Like, in The State 
of Black America, supra n. 36, at 17-20. Of course, no one would expect 
exact parity even in the absence of discrimination. But, the magnitude of the 
difference between actual conditions and any rough estimates of parity 
suggests the kind of “manifest imbalance” that this Court has found 
appropriate for race conscious remedies. Johnson v. Transp. Agency, 480 
U.S. 616 (1987); see also, Hazelwood Sch. Dist. v. United States, 433 U.S. 
299, 308 n. 14 (1977).

62 This was the view Justice Harlan in fact endorsed in his famous Plessy 
dissent:

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 remains 
true to its great heritage and holds fast to the principles of constitutional 
liberty.

Plessy, 163 U.S. at 559.



23

eligible to compete for admission to selective institutions of 
higher education, including the University of Michigan. See, 
e.g., Bakke, 438 U.S. at 370-71 (Opinion of Brennan, White, 
Marshall & Blackmun, JJ.). It has also provided unfair 
advantages to whites as a group, who have disproportionately 
benefitted from the racialized dimensions of economic, 
political, and social opportunity in our country .63 This systemic 
and systematic racial inequality, from cradle to grave, makes 
consideration of race not only relevant, but essential, to public 
institutions in today’s society.

Yet the Court’s jurisprudence, especially its ruling in Bakke, 
has dismissed this rooted inequality as “societal discrimination” 
that is beyond the power of state actors to remedy. See City o f  
Richmond v. J.A. Croson Co., 488 U.S. 469 (1989); Bakke, 438 
U.S. at 307. This makes it virtually impossible for a public 
institution voluntarily to take account of race, short of 
implicating itself in identified racial discrimination, which such 
institutions, concerned about their own liability, are frequently 
unwilling to do. Cfi Wygant v. Jackson Bd. ofEduc., 476 U.S. 
274, 291 (1986) (O’Connor, J., concurring) (public employers 
might be “trapped between the competing hazards of liability to 
minorities if affirmative action is not taken . . .  and liability to 
non-minorities if affirmative action is taken”). The inability of 
state and local institutions to act voluntarily to relieve this 
continuing disparity threatens to relegate African Americans to 
a permanent third class status, without legally cognizable means 
for redressing systemic racial disadvantage brought on by such 
institutions throughout hundreds of years of slavery, 
segregation, and discrimination. It further threatens to create a 
permanent drain on this country’s pool of potential talent and, 
ultimately, to produce a society forever divided by race. As

63 See generally, Cheryl I. Harris, Whiteness as Property, 106 Harv. L. 
Rev . 1707 (1993); Barbara J. Flagg, “Was Blind, But Now I  See, ” 91 MICH. 
L. Re v . 953 (1993).



24

Justice Marshall concluded in Bakke:

In light of the sorry history of discrimination and its 
devastating impact on the lives of Negroes, bringing the 
Negro into the mainstream of American life should be a 
state interest of the highest order. To fail to do so is to 
ensure that America will forever remain a divided society.

438 U.S. at 396 (Opinion of Marshall, J.). The Court’s 
unwillingness to endorse race-conscious remedies aimed at 
mitigating the pernicious effects of widespread discrimination 
is contrary to the purpose and spirit of the Fourteenth 
Amendment. See id. (“I do not believe that the Fourteenth 
Amendment requires us to accept that fate. Neither its history 
nor our past cases lend any support to the conclusion that a 
university may not remedy the cumulative effects of society’s
discrimination---- ”); id. at 407 (Opinion of Blackmun, J.) (“In
order to get beyond racism, we must first take account of race. 
There is no other way. And in order to treat some persons 
equally, we must treat them differently. We cannot — we dare 
not — let the Equal Protection Clause perpetrate racial 
supremacy.”).

A. The Persistence of Pervasive Racial Inequality Calls For 
the Court to Revisit its Conclusion In Bakke That 
Redressing “Societal Discrimination” Is Not A 
Compelling Interest

In an opinion authored by Justice Powell, a majority of the 
Court in Bakke rejected the University of California at Davis 
Medical School’s use of race to redress the effects of “societal 
discrimination,” which it deemed “an amorphous concept of 
injury that may be ageless in its reach into the past.”64 438 U.S.

“The Court’s rejection of the goal of eliminating “societal 
discrimination,” however, was far from unanimous. Four Justices expressly 
repudiated this view. Justices Brennan, White, Marshall, and Blackmun 
dissented from that part of the Court’s judgment holding the UC Davis plan



25

at 307. In the “absence of judicial, legislative, or administrative 
findings of constitutional or statutory violations,” id., the Court 
concluded that it could not sanction a classification aimed at 
assisting “persons perceived as members of relatively 
victimized groups at the expense of other innocent individuals,” 
id.

None of the opinions that emerged from Bakke defined 
“societal discrimination.” Nor has the Court defined it since. 
Cf. Croson, 488 U.S. 469; Wygant, 476 U.S. 274. But it has 
placed beyond the scope of constitutionally permissible 
remedies a range of actions taken by state actors to redress the 
cumulative effects of past discrimination. Thus, for example, 
in Wygant the Court disapproved a school board’s race-based 
layoff policy that aimed to create a more diverse faculty, in 
order to have role models for minority students, in the absence 
of “some showing of prior discrimination by the governmental 
unit involved.” 476 U.S. at 274. Similarly, the Court in Croson 
rejected an ordinance adopted by the Richmond City Council 
that required set-asides to minority-owned businesses in part 
because findings by the City Council concerning the deep 
disparity between the share of contracts awarded minority- 
owned businesses and the size of Richmond’s minority 
population were held insufficient. 488 U.S. at 501. The local 
government could act, the Court determined, only to “eradicate 
the effects of private discrimination within its own legislative 
jurisdiction.” Id. at 491-92.* 65

At the same time, efforts to hold state and local institutions 
accountable for the consequences of their past discrimination

unconstitutional, concluding that the University could consider race to 
counter the lingering effects of “societal discrimination.” Bakke, 438 U.S. 
at 362-73.

65The Court concluded that a state actor could also act to redress its 
“passive participation” in a “system of racial exclusion practiced by 
elements of the local construction industry .. . . ” Id. at 492.



2 6

have been hobbled by courts’ determinations that the effects of 
such discrimination are too “attenuated” or “amorphous” to 
justify race-conscious remedies, and that racially segregated 
systems are the product of private choices, rather than state 
action, and, therefore, are not legally redressable. See, e.g., 
Freeman, 503 U.S. at 494-95; cf. Jenkins, 515 U.S. 70; 
(limiting federal courts’ remedial authority in school 
desegregation cases); Dowell, 498 U.S. at 250-51 (Opinion of 
Marshall, Blackmun, and Stevens, JJ). (school board released 
from desegregation decree following period of compliance 
could adopt student assignment plan that resulted in 
reappearance of all-black schools in absence of a showing that 
decision to implement plan was intentionally discriminatory); 
Pasadena City Bd. ofEduc. v. Spangler, 427 U.S. 424 (1976); 
Milliken, 418 U.S. 717; Belk v. Charlotte-Mecklenburg Bd. o f 
Educ., 269 F.3d 305 (4* Cir. 2001); Manning v. Sch. Bd. o f 
Hillsborough County, 244 F.3d 927 (11th Cir. 2001). These 
decisions have the effect of sanctioning a range of outcomes 
that originated with state and local actors and continue to 
perpetuate racial disadvantage. See, e.g., Dowell, 498 U.S. at 
251 (dissenting opinion)(school board maintained original dual 
system by “exploiting residential segregation”).

The combined impact of the Court’s Fourteenth Amendment 
jurisprudence has been to squeeze both ends against the middle 
—  shielding from constitutional scrutiny policies which, though 
neutral on their face, have a disproportionate adverse impact on 
African Americans, see, e.g., Village o f Arlington Heights v. 
Metropolitan Hous. Auth., 429 U.S. 252 (1977); Washington v. 
Davis, 426 U.S. 229 (1976); cf. Personnel Admin’ r ofMass. v. 
Feeney, 442 U.S. 256 (1979) (Equal Protection violation exists 
only if state policy was adopted because of, rather than merely 
in spite of, its disparate impact on suspect class); Rodriguez, 
411 U.S. 1 (state method of financing education through 
property taxes held not to violate Equal Protection Clause 
despite significant adverse impact on poor children), while at



27

the same time barring affirmative measures taken to alleviate 
the impact of systemic racial inequality, see Croson, 488 U.S. 
469; Wygant, 476 U.S. 274; Bakke, 438 U.S. 265.66

It is ironic, moreover, that the Fourteenth Amendment has 
been interpreted to hamstring voluntary state efforts to 
compensate for past discrimination, considering that state actors 
have been the most determined to frustrate the mandate of 
Brown. Well after the Court’s decision in Brown, Southern 
states continued their vocal opposition to measures to ensure 
black equality, see, e.g., Dowell, 498 U.S. at 252-56 (Marshall, 
J., dissenting) (describing efforts by Oklahoma school 
authorities to evade Brown’s dictates); Cooper v. Aaron, 358 
U.S. 1,11 (1958) (Arkansas); Holmes v. Danner, 191 F. Supp. 
394 (M.D. Ga. 1961) (black candidates categorically excluded 
from University of Georgia on basis of race), and vestiges of 
these dual systems have persisted decades after Brown was 
decided. See United States v. Fordice, 505 U.S. 717 (1992); 
Knight v. Alabama, 14 F.3d 1534 (11th Cir. 1994). Massive 
campaigns to limit the rights of African Americans also existed 
in Northern states. See Bakke, 438 U.S. at 393-94 (Marshall, J. 
concurring in part, dissenting in part). Thus, it is inconceivable 
that state actors should be barred from taking voluntary, race- 
sensitive measures to eliminate vestiges of their earlier 
intransigence. See Adarand Constructors, Inc. v. Pena, 515 
U.S. 200, 243 (1995) (Stevens, J., dissenting) (“There is no 
moral or constitutional equivalence between a policy that is

66The perception of whites as “innocent” victims of affirmative action, 
see Bakke, 438 U.S. at 307, has encouraged this result. Cf Harris, supra n. 
63, at 1767-68 (“The Supreme Court’s rejection of affirmative action 
programs on the grounds that race-conscious remedial measures are 
unconstitutional under the . . . Fourteenth Amendment. . .  is based on the 
Court’s chronic refusal to dismantle the institutional protection of benefits 
for whites that have been based on white supremacy and maintained at the 
expense of Blacks. As a result, the parameters of appropriate remedies are 
not dictated by the scope of the injury to the subjugated, but by the extent 
of the infringement on settled expectations of whites.”).



2 8

designed to perpetuate a caste system and one that seeks to 
eradicate racial subordination.”).

The history of racial caste in this country further calls into 
question the appropriateness of the Court’s decisions to limit 
the constitutional authority of state and local actors to remedy 
pervasive racial disadvantage. Although the Court has 
determined that the rights created by the Fourteenth 
Amendment “are, by its terms, guaranteed to the individual” 
and “are personal rights,” Bakke, 438 U.S. at 289, the 
oppression of African Americans has been distinctly group- 
based.67 As Justice Marshall observed in his Bakke opinion:

[I]t is more than a little ironic that, after several hundred 
years of class-based discrimination against Negroes, the 
Court is unwilling to hold that a class-based remedy for that 
discrimination is permissible. [This] ignores the fact that for 
several hundred years Negroes have been discriminated 
against, not as individuals, but rather solely because of the 
color of their skins.

Id. at 400. Justice Marshall’s observation is as relevant today 
as it was twenty-five years ago when Bakke was decided. See, 
e.g., Freeman, 503 U.S. at 490; Grutterv. Bollinger, 288 F.3d 
732,765 (2002) (opinion of Clay, J., concurring). This country 
has made remarkable strides toward realizing the promise of the 
Fourteenth Amendment, but it has yet to reach that goal. See 
Croson, 488 U.S. at 561-62 (Blackmun, J., dissenting) 
(expressing confidence that the Court would again do its best 
to fulfill the promises of the Constitution). Until that time, 
race-sensitive policies that take into account the unique 
experiences and opportunities of African Americans are both 
necessary and appropriate.

61 See, e.g., Cass R. Sunstein, The AntiCaste Principle, 92 MICH. L. REV. 
2410(1994).



29

B. A Principal Purpose of the Fourteenth Amendment Was
to Constitutionalize Race-Conscious Remedies68

The legislative history of the Fourteenth Amendment 
establishes that one of its chief objectives was to secure the 
constitutionality of race-conscious legislation enacted by the 
Thirty-ninth Congress.69 This Court should not, therefore, 
interpret this Amendment to bar the very kinds of race-specific 
remedial measures it was designed to authorize and legitimate.

Following the Civil War, Congress proposed a series of 
race-specific social welfare laws and programs specifically 
targeting blacks for special assistance.70 Many of these

68The historical circumstances surrounding the enactment of the 
Fourteenth Amendment have been recounted elsewhere at great length. See 
Eric Schnapper, Affirmative Action and the Legislative History o f the 
Fourteenth Amendment, 61 VA. L. REV. 753, 754-88 (1985); Brief for the 
NAACP Legal Defense and Educational Fund, Inc., as Amicus Curiae in 
Bakke (hereinafter “LDF’s Amicus Brief in Bakke”), 10-53; see also 
Jacobus tenBrqek, Equal Under Law (rev. ed. 1965); Alfred Avins, 
The Reconstruction Amendments’ Debates (rev. ed. 1974); Horace 
E. Flack, The Adoption of the Fourteenth Amendment (1908). 
Several of the opinions in Bakke acknowledged the relevance and 
importance of the history of the Fourteenth Amendment. See 438 U.S. at 
291-294 (Opinion of Powell, J.); id. at 396-398 (Opinion of Marshall, J.).

69“The one point upon which historians of the Fourteenth Amendment 
agree, and, indeed which places beyond cavil, is that the Fourteenth 
Amendment was designed to place the constitutionality of the Freedmen’s 
Bureau and civil rights bills. . .  beyond doubt.” TenBROEK, supra n. 68, at 
201; see also FLACK, supra n. 68, at 11; Bakke, 438 U.S. at 398 (Marshall, 
J., concurring in part, dissenting in part) (“Since the Congress that 
considered and rejected the objections to the 1866 Freedmen’s Bureau Act 
concerning special relief to Negroes also proposed the Fourteenth 
Amendment, it is inconceivable that the Fourteenth Amendment was 
intended to prohibit race-conscious relief measures.”).

10See e.g., the 1865 Freedmen’s Bureau Act, Act of Mar. 3, 1865, c.90, 
13 Stat. 507-508; the 1866 Freedmen’s Bureau Act, Act of July 16, 1866, 
c. 200, 14 Stat. 173-177; the 1867 Colored Servicemen’s Claims Act, 15 
Stat. 26, Res. 25.



30

programs were intended to benefit all blacks —  not just 
recently freed slaves —  often to the exclusion of whites. The 
distinctions made within such programs on the basis of race 
were neither inadvertent nor unopposed; on the contrary (see 
the description of the legislative history contained in Appendix 
“A” to this Brief), they were debated and enacted in the face of 
opposition to the very idea of race-conscious programs by those 
who perceived such measures as unfair to whites.

It was against the backdrop of the affirmative remedial 
measures that the Thirty-ninth Congress concomitantly 
fashioned, debated, and approved the Fourteenth Amendment.71 
Virtually all of the members who supported the Amendment 
also voted in favor of the Freedmen’s Bureau legislation.72 The 
Amendment’s proponents viewed the 1866 Freedmen’s Bureau 
bill to be precisely the kind of measure for which the 
Amendment would provide clear constitutional authority.73 
Therefore, the original understanding of the Fourteenth 
Amendment supports a broad remedial consideration of race 
and cannot provide the basis for striking down state-sponsored 
policies conceived to improve the conditions of blacks.

Conclusion

For the foregoing reasons, the judgment of the court below 
should be affirmed.

11See CONG. Globe, 39th Cong., 1st Sess. (hereinafter “Globe”) 2545 
(House vote, 128-37); id. at 3042 (Senate vote, 33-11); id. at 3149 (House 
concurrence with Senate amendments, 120-32); id. at 3562 (House vote on 
conference report, 25-102 defeating the motion to table).

72See Schnapper, supra n. 68, at 784 n.167 (describing cross-over voting 
in both Houses).

73See, e.g., Globe at 1033-34 (statement of Representative 
Woodbridge); id. at 1092 (statement of Representative Bingham).



Respectfully submitted,

O f Counsel:

St e p h e n  R. S h a pir o  
Legal Director 

C h r is t o p h e r  A . H a n s e n  
E. V in c e n t  W a r r e n  
A m e r ic a n  C iv il  L iberties  

U n io n  F o u n d a t io n  
125 Broad Street, 18* FI. 
New York, NY 10004 
(212) 529-2500

E l a in e  R. J o n es  
Director-Counsel 

T h e o d o r e  M . S h a w  
N o r m a n  J. C h a c h k in  
R o b e r t  H. S t r o u p  

*El is e  C. B o d d ie  
D a m o n  T. H e w it t  
C h in h  Q. Le  
NAACP L e g a l  D e f e n s e  

a n d  E d u c a t io n a l  
F u n d , In c .

99 Hudson Street, 16th FI. 
New York, NY 10013 
(212) 965-2200

L ia  B . E p p e r s o n  
NAACP L e g a l  D e f e n s e  

a n d  E d u c a t io n a l  
F u n d , In c .

1444 Eye Street, N.W..
10* Floor
Washington,D.C. 20005 
(202) 682-1300

* Counsel o f Record

Counsel for Amici Curiae

February 18, 2003



APPENDIX



APPENDIX “A”
Legislative History of Freedmen’s Bureau Acts 

And Similar Legislation

Principal among the legislation passed during this period 
was the 1866 Freedmen’s Bureau Act, Act of July 16,1866, c. 
200, 14 Stat. 173-177, by far the most comprehensive of the 
remedial measures enacted during the Reconstruction Period. 
During the congressional debates over the 1866 Act, it became 
clear that much of the additional assistance and protection that 
Congress intended to provide through the Bureau would be 
directed not toward white war refugees, but rather toward newly 
freed blacks almost exclusively.1

Throughout the early debates over the first version of the 
bill, opponents complained, inter alia, that the proposed 
limitations on the Bureau’s assistance would inappropriately 
make “a distinction on account of color between the two 
races;”2 that it would result in two separate legal regimes —  
“one government for one race and another for another;”3 and 
that it would impose “injustice and oppression upon the white 
people of the late slave-holding states for the benefit of the free 
negroes.”4 The bill’s proponents took head on the challenge of 
defending the propriety of race-conscious legislation, and the

'See, e.g., Cong . Globe, 39th Cong., 1st Sess. (hereinafter “Globe”) 
App. 78 (remarks of Representative Chanler).

2Id. at 397 (remarks of Senator Wiley); see also id. at 342 (remarks of 
Senator Cowans); 544 (remarks of Representative Taylor); App. 82 (remarks 
of Representative Chanler).

3Id. at 627 (remarks of Representative Marshall), 634 (remarks of 
Representative Ritter).

4Id. at 402 (remarks of Senator Davis); see also id. at 251 (remarks of 
Senator Moccill); 415 (remarks of Senator Davis).

la



strong need for such special treatment.5 On the strength and 
numbers of these arguments, the House and Senate both passed 
the 1866 Freedmen’s Bureau bill, not once, but twice —  with 
only slight modifications the second time.

Despite Congress ’ s overwhelming support for it, the bill was 
twice vetoed by President Johnson. On both occasions, the 
President, as had many of the bill’s congressional opponents, 
expressed grave doubts about the propriety and constitutionality 
of legislation that specially identified blacks for certain aid and 
programs.6 The second time he exercised his veto, however, 
Congress, which had consistently rejected such arguments, did 
so again, voting to override it by a substantial margin.7

The years that followed witnessed the passage of more race­
conscious legislation.8 As before, objections were raised on 
each occasion about the race-specific nature of the proposed 
measures, but as with the 1866 Freedmen’s Bureau Act, 
Congress found these arguments unpersuasive and passed most 
of the bills by substantial margins.9

5 See id. at 631 -32 (emphasis added) (Representative Moulton); see also 
id. at App. 75 (remarks of Rep. Phelps).

6vm Messages and Papers of the Presidents, 3599 (1914) 
(statements made by President Johnson justifying his veto of the bill).

7The House voted 104 to 33 to override the veto, and the Senate voted 
the bill into law by a margin of 33 to 12. Globe at 3840, 3850.

%See, e.g., 14 Stat. Res. 86 (1866) (protecting black solders from 
unscrupulous claim agents); 15 Stat. Res. 4 (1867) (providing relief to 
blacks in the District of Columbia); 15 Stat. Res. 28 (1867) (authorizing the 
Secretary of War to provide Bureau funds to black freedmen to prevent 
famine resulting from crop failure).

9See Eric Schnapper, Affirmative Action and the Legislative History o f 
the Fourteenth Amendment, 61 Va. L.Rev. 753,775-83 (1985) (recounting 
debate over these measures).

2a