Brown-Nagin reflects on Schuette and justices’ differences on racial discrimination

Following the U.S. Supreme Court’s decision in Schuette v. Coalition to Defend Affirmative Action, upholding Michigan’s ban on the use of race in university admissions, Harvard Law School Professor Tomiko Brown-Nagin appeared on MSNBC’s “Last Word” to discuss the divide in the Supreme Court’s on race.

“I think what we’re seeing on this court is a plurality of justices, led by the Chief Justice, John Roberts, indicating in a number of decisions— whether it’s education or employment or voting— that explicit racial classifications have no place in the law unless they’re supported by current findings of invidious racial discrimination,” said Brown-Nagin, Daniel P.S. Paul Professor of Constitutional Law and co-director of the Program in Law and History. She is also professor of history, Harvard Graduate School of Arts & Sciences.

Brown-Nagin said that to the justices in the majority on Schuette, racial discrimination means something very definite—the kind of personal animus represented by Jim Crow laws or Bull Connor’s use of police dogs against non-violent protesters during the civil rights movement. That kind of animus is largely a thing of the past, the Chief Justice has said in a number of opinions.

To Justice Sonia Sotomayor, however, who wrote an impassioned dissent, the conception of racial discrimination can reveal itself by social and economic conditions that suggest racial disadvantage, Brown-Nagin said.

Racial stigma preexisted the advent of affirmation action policies, Brown-Nagin explained. “There was racial stigma during the era of slavery and Jim Crow…We probably would benefit from understanding it in all of its fullness.”

Brown-Nagin also discussed Schuette in The New Republic. “[S]urely the Justice’s views on affirmative action loomed in the background of today’s decision,” she said. “[T]he bottom line is that the Roberts Court is nudging universities toward so-called race-neutral alternatives to race-conscious affirmative action, as it once again stated in Schuette. Grutter is imperiled, implicitly if not explicitly.” Grutter v. Bollinger, was a 2003 Supreme Court decision, in which it held that universities can use race in admissions to further their compelling interest in creating diverse student bodies.