Plessy And Brown

The Constitution has survived two World Wars, a Civil War, and even slavery. This piece of paper was written to limit government in our lives and proclaim our rights as individuals. Through the course of time, Amendments have been added to aid in current events that were not foreseen when the Constitution was originally written. Sixteen presidents after the Constitution was written, slavery was abolished and the Thirteenth Amendment was passed.. Three years later came the Equal Protection clause in the Fourteenth Amendment and two years after that, the Supreme Court addressed voting rights in the Fifteenth Amendment.

The decisions in Plessy and Brown are similar because of how the decisions affect the group instead of the individuals. The Court is continually ruling in regard to race instead of the individual. If the Constitution is truly color blind, then we would not have these distinctions between classes when the rulings are made. Each ruling by the Court should be done on an individual basis and by the merits of that particular individual instead of the color of ones skin. The only reason the court rules in favor of Brown is because the implications go beyond just the individual affected, the ruling will affect the entire black race. The effects of the Brown case go a lot further than the immediate case.

After the states had failed to integrate blacks and whites in society, the Federal Government stepped up to end this atrocity. For years and years citizens in each state have attempted to forgo the three Amendments mentioned previously. In each case the Courts have attempted to use Harlan's dissenting opinion in Plessy as their guide to uphold this "color blind Constitution."

In recent cases concerning racial preferences, the Supreme Court, largely under the leadership of Justice O'Connor, has articulated a new doctrine concerning the constitutionality of governmental racial classifications under the equal protection clause of the Fourteenth Amendment. The Court has determined, after twenty five years of debate, that the most stringent standard of review applies to all such classifications, even those intended to benefit rather than to burden historically disadvantaged minorities. This standard has been applied to racial preference programs in employment, state and federal government contracting, and voting. The Court has yet to revisit affirmative action programs in higher education. Does the new standard mean that the Court has adopted a color-blind theory of equal protection, holding in effect that any racial classification by the government is unconstitutional, that no governmental unit may take race into account except to cure a plain constitutional violation of equal protection? Has the Court overruled Regents v. Bakke, the charter for affirmative action in higher education?

In Bakke v Regents of the University of California, we have a landmark reverse discrimination case that influenced education as a whole. Bakke was rejected from graduate school even though he had superior scores than many of the African-American applicants who were admitted. Bakke challenged the University of California and overturned the quota system that had been established in public universities across the nation. The University of California held on to the belief that black people should have access to black doctors. However, if the University were to go on a sole merit system then the number of special admittees would diminish along with the aforementioned belief. This belief was quickly altered by the Supreme Court with their decision against the University.

While the approach the Courts use is meant to be color blind, the outcome is anything but color blind. This can be seen through an examination of the equal protection jurisprudence of Justice O'Connor, the pivotal swing vote on these issues in the last decade and author of the crucial opinions in Richmond v. J.A. Croson Co., Adarand Constructors v. Pena, and Shaw v. Reno. After reviewing many of the cases that O'Connor was involved in, it seems as though she is the key voice on the Supreme Court in affirmative action cases.

O'Connor continues her excellence when she delivers the opinion of Shaw v. Reno. In 1993 North Carolina had voting districts revised to create two Black majority districts. One of these districts was no wider than an interstate highway and some towns had as many as three districts. This created a 14th Amendment issue under the Equal Protection Clause. Less than ten years ago the Court was having to correct the states on 14th Amendment grounds. The Supreme Court continues to attempt to fix past wrongs with hopes to create a color blind Constitution. O'Connor is leading this charge to right the wrongs of our past in hopes to swing the pendulum in favor of the oppressed.

These views do not support a color-blind interpretation of current doctrine. Her newest equal protection jurisprudence means that the strict scrutiny applied in racial preferences is not exact in theory, disastrous in fact, but rather lowers the demands of strict scrutiny to allow some government flexibility in view of the persistence of racial discrimination and its effects. For instance, Justice O'Connor would allow some racial preference as a remedial measure even where a governmental actor has not discriminated in the past and probably, at least in higher education, as a forward-looking non-remedial measure to attain goals such as diversity, vindicating Bakke. On the other hand, the application of even a lowered strict scrutiny standard involves a departure from the Burger and early Rehnquist Courts' fairly permissive approach towards remedial and other non-threatening racial preferences, especially federal ones. Her new standard is especially rigorous in the way she votes.

Looming over the public and judicial debate over racial preference is the legacy of slavery and racism. Segregation, institutionalized in the Jim Crow policies authorized under Plessy v. Ferguson, was overturned only in 1954 by Brown v. Board of Education. From 1954 to 1969, when the Nixon administration firmly established affirmative action as national policy, Blacks were largely confined to the lowest rungs of the economic ladder and to a great though somewhat lesser extent they still are. They remain severely under-represented in professions. Comparatively few Blacks owned or own businesses of any size. In higher education, Blacks do worse on the measures used by universities to assess applicants and so, before affirmative action, were largely excluded especially from the better programs in higher education. Color blind admissions would mean, for example, that Black enrollment at law schools would drop from between 60 percent to 80 percent. The most plausible

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