English 102
“Replay That Tune: Defending Bakke on Stare Decisis Grounds”
Stare decisis is the most powerful doctrine in American legal history. It commands that jurisprudence is followed and that law is consistently applied from case to case. Despite the idea that a judge should respect the decisions of his or her predecessors, there are moments when precedent no longer fits society’s expectations and the Court concludes that a doctrinal shift is required. As a result, legendary decisions emerge, spawning new principles that develop into canons whose constitutionality become unassailable over time. Such is the prominence of these decisions in our legal culture that they carry as much force as either the Bill of Rights or an amendment to the Constitution. Precedent that recognized unenumerated rights, legal tender, and even the administrative state so fundamentally changed the legal, economic, and political landscape of this nation that ordinary citizens cannot imagine society operating free from their influence. n2 Departure from these landmark cases would not only outrage the public but would be blasphemous to judges as well; therefore, lawyers are careful to advance their claims in concert with the principles enshrined in these jurisprudential icons.
But the fact that a decision has been followed repeatedly does not explain why it should be. The Court does, in fact, reverse precedent. n3 So, there is precedent that the Court will overturn while there are others that are shielded from reversal. This begs a couple of questions: what distinguishes cases that are immune to reconsideration from those that are not? More specifically, how does a case whose ruling the Framers did even not intend become as powerful as the most revered clauses of the Constitution? A helpful comparison between music hits and Supreme Court precedent provides an insightful answer. The way a case receives notoriety as a doctrinal idol in legal culture is similar to how songs become engrained in popular culture.
Listeners tune into shows on radio, TV, and the Internet, giving them quick access to both ancient and modern popular music. These forums also introduce fans to popular talent and music show hosts, like Casey Kasem and Ryan Seacrest, who provide expert analysis on all genres ranging from rock to country and hip-hop. [*522] Through the years, certain songs and albums become artistic standards. n4 New listeners continue to enjoy these tunes and artists return to these works to inspire their own unique creations. Although these iconic songs no longer play on “America’s Top 40,” “oldies” stations continue to remind its listeners of the importance of these tunes; their rhythmic, melodic, and thematic structures still influence the creation of new music. Similarly, lawyers, judges, and law professors cite to certain foundational cases that set the tone, much like a top hit, for challenges against government policy. Let us review a few examples. First, with the help of popular crime television shows, Miranda v. Arizona n5 has become an embedded feature of our national life. Nearly every citizen remembers and can recite the so-called Miranda warnings verbatim if asked. In addition law students are required and forced to rehearse key concepts from landmark decisions in class. Second, when law students hear about a challenge over a religious display under the Establishment Clause, they instantly recall Lemon v. Kurtzman and the infamous three-pronged Lemon test. n6 There are other classics, to be sure.
In addition to “top-hit” cases, there are jurisprudential doctrines that are also engrained in every law student and lawyer’s memory. Take for example, the three-tiers of review for the Due Process and Equal Protection Clause. These tiers are like lyrics that have been rehearsed by every person who has studied the law. Possible violations of fundamental rights or the use of suspect classifications make lawyers recall the verses from the doctrine of strict scrutiny review. That doctrine is an “oldie but goodie” in Fourteenth Amendment jurisprudence, which demands that government measures that either infringe on fundamental rights or target a suspect classification “are constitutional only if they are narrowly tailored measures that further compelling governmental interests.” n7 They can also repeat a mantra, which some Justices echo in affirmative action decisions. “Strict scrutiny must not be,” they assert, “strict in theory, but fatal in fact.” n8 The Court’s affirmative action jurisprudence–a line of cases in the Court’s race cannon–has a top hit, or precedent, whose rhythm all affirmative action decisions claim to follow.
It has been nearly four decades since Justice Powell, in his decisive opinion in Regents of the University of California v. Bakke, announced the principle, which guides race-conscious admission programs today: “The diversity that furthers a compelling state interest encompasses a far broader array of qualifications and characteristics of which racial or ethnic origin is but a single though important element.” n9 The Court reaffirmed this rule on three occasions in Grutter v. Bollinger, n10 Gratz v. Bollinger, n11 and again in Fisher v. University of Texas at Austin (Fisher I). n12 However, this does not calm the impassioned doctrinal debate between the Court’s race ideologues.
Fervent proponents of race-conscious constitutionalism desire to alter affirmative action rules to require deference to color-conscious government action designed to ameliorate the perceived effects of “an overtly discriminatory past.” n13 Colorblind purists, on the other doctrinal extreme, advocate for a strictly colorblind constitution, that is, a wholesale rejection of race-conscious government activity. n14 Some purists, in fact, believe that the doctrine of strict scrutiny review is insufficient to protect citizens from invidious racial discrimination. n15
As illustrated in Fisher I, the Justices divided themselves along predictable, ideological lines, advancing their respective visions of racial equality. In Fisher I, Justice Thomas stated again his intention to recalibrate the Court’s jurisprudence to follow a strictly colorblind approach to affirmative action policy: “The constitution abhors classifications based on race because every time the government places citizens on racial registers and makes races relevant in the provision of burdens or [*524] benefits, it demeans us all.” n16 In her dissent, however, Justice Ginsburg mocked colorblind constitutionalism in whole, suggesting that the Court’s preference for race-neutral alternatives is a sleight of hand: “I have said before and reiterate here that only an ostrich,” she wrote, “could regard the supposedly neutral alternatives as race unconscious.” n17 Indeed, these “lyrics” are representative of the ideological sides in affirmative action opinions, and each side was practiced and mimicked in Fisher I. However, the ideologues added nothing insightful to the debate. In order to address the fundamental questions at the heart of constitutional adjudication, both ideological sides of affirmative action jurisprudence must be analyzed through a broader constitutional framework.
Despite the debate between colorblind purists and race-conscious ideologues, this Article finds that neither side has made a case that Justice Powell’s opinion in Bakke fails to serve our legal system’s need for “consistency, stability, predictability, and societal reliance” that respect for precedent is calculated to accomplish. n18 Because race ideologues, like Justices Thomas and Ginsburg, do not give Justice Powell’s opinion weight in affirmative action jurisprudence, this Article will show that the opinion carries sufficient purchase in the First Amendment canon to control judicial scrutiny over race-conscious admission programs.
Admittedly, Bakke does not exactly mirror the academic freedom cases because the decision did not review laws designed to regulate the speech of teachers and faculty expressed in the classroom by basing employment in part on political viewpoint. Instead, Justice Powell’s holding, that campus diversity serves a compelling interest in admissions allowed colleges to determine who may be admitted to study on campus, protects the freedom of expression in pursuit of academic truth against policies designed to either gerrymander or suppress speech in the classroom.
Campus diversity creates an atmosphere “which is most conducive to speculation, experiment and creation,” providing students with the means to discover “truth out of a multitude of tongues rather than through any kind of authoritative selection.” n112 In this way, Justice Powell’s opinion “fits well into the existing First Amendment doctrinal universe by reinforcing the core right of ‘political speech’ through [the academic freedom doctrine, which advances] the First Amendment’s primary goal of protecting robust debate so the people can make informed political and personal decisions.” n113 Though Justice Powell might have extended the principle of academic freedom further than the context of its foundational cases, his opinion neither contradicts nor inhibits the doctrine’s goal of protecting the discovery of truth through a robust exchange of ideas in the classroom. In fact, it enhances the principle’s core concept–the discovery of truth–by making expression a part of the criteria in selecting students who are likely to contribute to truth-seeking exchanges.
College administrators cannot, however, use racial categories carte blanche. n127 Fisher I clarified strict scrutiny rules for race-conscious college admission plans. It placed the burden on colleges to show that race-neutral alternatives cannot achieve their pedagogical goals and that race-conscious programming is necessary to achieve them. n128 “[S]trict scrutiny imposes on the university the ultimate burden of demonstrating, before turning to racial classifications that available, workable race-neutral alternatives do not suffice.” n129 The standard does not afford colleges “deference” nor does it assume “good faith” on the part of administrators when they implement racial preferences. n130 Abstract assertions are not enough: “Strict scrutiny does not permit a court to accept a school’s assertion that its admissions process uses race in a permissible way,” Justice Kennedy explained, “without a court giving close analysis to the evidence of how the process works in practice.” n131 Thus, reviewing courts must examine whether an admissions program achieves the educational benefits that flow from diversity.
Apart from the debate among Justices and legal scholars over affirmative action jurisprudence, there is an organized movement to persuade voters and legislators to illegalize race-conscious activity within the states. This section explains how statewide bans on race-conscious activity short-circuits the political process. However, it is recognized that moral outrage at color-conscious government activity is not totally without merit. Indeed, American history teaches us to be highly suspicious of the motives of government officials when they treat citizens differently on the basis of race. n236
Both federal and state governments have used race to establish a social order designed to subjugate racial minorities. A white propertied aristocracy in the South invested its fortunes to protect its interest in slavery; in the Jim Crow era, it regenerated through a system of color-conscious apartheid that deprived African-Americans of their fundamental rights. n237 However, the instant eradication of racial classifications from our laws, either through judicial mandate or through plebiscite, cannot erase the social and psychological imprint the legacy of slavery and discrimination made upon our country. n238 While the nation has made remarkable progress in race-relations through de jure desegregation, the enactment of federal civil rights legislation, and the election of its first African American to the Presidency, racial hostility remains pervasive. n239
The post-Civil Rights Era has had sporadic episodes of racial violence. The 1960s became a decade in which public order was disrupted by race riots in Watts, Detroit, and Newark. The unrest culminated in April 1968 with the assassination of Dr. Martin Luther King, Jr., which sparked ethnic violence in nearly 110 cities. n240 Regrettably, the modern era is experiencing its share of unrest when racial animosities violently erupt in local communities when an event occurs that triggers deeply held resentments. These events include the acquittal of four white police officers who were video-taped beating an unarmed black motorist, n241 the planned march by a white supremacist group against claimed black gang activity, n242 or the conviction of a white transit cop of a lesser charge in the shooting of an unarmed black man. n243 Racial violence reared its ugly head again in a small Missouri town, drawing worldwide attention. In 2014, a shooting by a white police officer of a black [*559] teen sparked multiple days of civil unrest when a grand jury decided to not indict the officer. n244 The riot resulted in looters burning at least twenty-five buildings in the city’s business district. n245 Clearly, this demonstrates that race remains a catalyst for social angst and disruption.
Many Americans do not discuss race productively. Citizens often look to prominent, and colorful, figures that are anointed by political elites or by the pundit class as race leaders for direction in how to discuss or view matters pertaining to race. Unfortunately, many of these individuals are not race healers. They are arsonists who pour fuel on the social fire. n246 Their rhetoric does not provide the public with useful vocabulary to facilitate meaningful dialogue; in reality, these individuals turn up the verbal heat by evoking rhetoric that substitutes substantive disagreement with vicious, race-based insults at times. n247 Worse still, a cottage industry of radio hosts, television personalities, and even politicians now specialize in manufacturing ethnic conflict by injecting divisive speech into political discourse; this dynamic is not limited to any political ideology or party. n248
Public figures have injected race to disrupt political discourse to either distract the public from substantive issues or to achieve some personal agenda. Modern audiences have been presented with speakers, from across the political spectrum, which weigh into certain controversies as an occasion to engage in “identity politics.” n249 Politicians, television personalities, and radio show hosts have, either through coded words or provocative language, intensified ethnic antipathies in notable controversies that exposed racial fault lines. Such controversies include the double-murder trial of a former football player; n250 the arrest of a black professor from Harvard by a white police officer; n251 three white, lacrosse players from Duke University accused of raping a black escort; n252 and the tragic shooting of an unarmed black teen by a Latino neighborhood watchmen. n253 These events inspire people of goodwill to question how this nation can receive relief from persistent racial bitterness. These people disagree, however, on what solutions the country should adopt.
Colorblind purists conclude that the nation’s history on race teaches that the classification is an inherently toxic category and government activity can only lead to the creation of racial entitlements or increased ethnic tensions. n254 Total government neutrality with respect to race–they conclude–is the best antidote to remedy the lingering effects of slavery and discrimination. n255 A purely colorblind [*561] approach, these theorists contend, “ensures that policy deliberations are not infected with either racial stereotyping or racial politics.” n256 Moreover, complete racial neutrality provides a better chance for citizens from different backgrounds to coexist together. Colorblindness encourages citizens to support an ideology of “deep humanism” over “identity politics” in recognizing that “there is something, under the skin, common to all human beings.” n257 In order to achieve racial harmony, colorblind purists propose that the federal and state constitutions should prohibit government decision-makers from considering race as a basis for dispensing benefits or privileges. n258 The movement toward strict racial neutrality has gained popularity in the country, with some surveys showing that the public is strongly opposed to racial preferences. n259
Eight states banned preferential treatment for any person on the basis of race with respect to, among other areas, public education and thus prohibited race-conscious affirmative action programs in colleges and universities. n260 But this movement toward total racial neutrality in these states has not become the panacea for combating racial hostility as colorblind purists had hoped. An in-depth analysis of hate-crime statistics and bias incidents on college campuses reveal that there are as many incidents on campuses in states that ban race-conscious programs than there are on campuses in states that permit it. n261 Racially inspired hate crime statistics reported in California by the Federal Bureau of Investigation illustrate this point.
College campuses in states that ban affirmative action, much like other colleges across the country, experience racial incidents that captivate public attention and contribute to the verbal lexicon on race, unearthing social activities that are usually practiced underground. In recent years, administrators had to respond to a series of hip-hop themed fraternity parties where primarily white attendees wear stereotypical clothes and create online posts that use so-called African-American vernacular, or Ebonics, to parody “black culture.” Other incidents include the hazing of a black student, which received national media coverage, when his white roommates caricatured him as a slave figure, using racial slurs and physical assaults to humiliate him. When this conduct becomes the subject of public scrutiny, college administrators are expected to respond to the controversy immediately, formulating strategies that can identify root causes and implement solutions to address them.
Colleges need more innovative ideas to address racial problems on campuses, particularly when students engage in behavior that counteracts diversity programs that increase the presence of underrepresented minorities on campus. For instance, there is a body of research finding that the claimed educational benefits that arise from student body diversity are inhibited by a social phenomenon where students segregate themselves along racial lines. In this environment, racial tensions are easily heightened because racial groups are alienated from one another outside the classroom. While studies suggest that black students perform better academically when they live with black roommates or participate in African-American student groups, the claimed educational benefits that black students experience are outweighed by diminished opportunities for interracial problem solving caused by self-segregation.
Summary:
In this article, Adside provides a compelling comparison between supporters of colorblind constitution and proponents of race-based programs. It shows the constitutionality of Bakke and Fisher court cases. The author also explains the side effects of allowing vs. banning affirmative action. In addition, it shows hate crime statistics on states that banned affirmative action and states that did not.
Evaluation:
Adside offers a fair and objective comparison between supporters of colorblind constitution and proponents of race-conscious affirmative action supported by a multitude of credible sources. However, it does not offer a clear solution, and stays neutral on the issue.
Contribution:
This article contributes an important perspective on both sides of the argument and provides valuable insight and information that is not available in other sources.
Work Cited
Adside, Charles. “Replay That Tune: Defending Bakke on Stare Decisis Grounds.” Cleveland State Law
Review, Vol.64, No.3, 22 Mar. 2016. LexisNexis Academic, www.lexisnexis.com.ezproxy.pc.maricopa.edu/lnacui2api/api/version1/getDocCui?lni=5K04-8MR0-00CV-10MX&csi=144695&hl=t&hv=t&hnsd=f&hns=t&hgn=t&oc=00240&perma=true.