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How the G.O.P. Created Affirmative Action
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By Jack Bass
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The Supreme Court will soon decide a pair of cases brought against the University of Michigan by two disappointed white applicants who object to the use of race as a factor in admissions. Although it may seem that every aspect of the cases has been thoroughly debated in the press, there has been little discussion of one vital element: the original source of constitutional doctrine on which affirmative action is based.

This legal foundation for using race as a factor in admissions and hiring can be seen in what scholars call
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The Constitution is colorblind in only one eye.
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"Southern jurisprudence." The term refers to the work of a small band of judges in the South, mostly Republicans hand-picked by President Dwight Eisenhowers attorney general, Herbert Brownell. Mr. Brownell's Wall Street demeanor masked a quiet passion for civil rights, a product of growing up in Nebraska under the influence of the progressive Republican Senator George Norris. Mr. Brownell once told me of his pride in being related to Susan B. Anthony.

The men he picked as federal judges in the South developed new constitutional doctrine in case after case during the civil rights era, and the Supreme Court signaled its general support. At that time, the Court of Appeals for the Fifth Circuit covered six of the 11 states of the Confederacy -- Alabama, Florida, Georgia, Louisiana, Mississippi, and Texas.

In an era of violent social upheaval, this band of judges broadly expanded the Supreme Court's 1954 school desegregation decision, Brown v. Board of Education, to transform an entrenched system of racial discrimination. And they developed the legal principles that Congress incorporated into the landmark Civils Rights Act of 1964 and Voting Rights Act of 1965.

In arguing the Michigan cases before the supreme Court, lawyers for the plaintiffs insisted that the use of race as a factor in determining student admissions is "impermissible because of the constitutional command of equality." They argue that the Constitution is "colorblind." That argument, however, overlooks an important legal precedent.

John Minor Wisdom -- the legendary jurist and scholar for whom the federal courthouse in New Orleans is named -- addressed that issue in a 1966 case, United States v. Jefferson County Board of Education. Although the case is best known for having transformed the law in terms of school desegregation, it also provided the initial constitutional rationale for affirmative action.

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Judge Wisdom asserted: "The Constitution is both colorblind and color-conscious. To avoid conflict with the equal protection clause, a classification that denies a benefit, causes harm or imposes a burden must not be based on race. In that sense, the Constitution is colorblind.

"But the Constitution is color-conscious to prevent discrimination being perpetuated and to undo the effects of past discrimination. The criterion is the relevancy of color to a legitimate government purpose."

There is no question of the "effects of past discrimination" he was referring to: the legacy of slavery. Before the Civil War in most Southern states, it was illegal to teach [cuts off]
sions. The College Board, which administers the SAT, reported in 2001 that students whos parents held graduate degrees on average scored 148 points higher on the test's verbal portion and 129 points higher on the math portion than students whose parents lacked a high school dipoloma. In contesting the use of race as a factor in admissions, the plaintiffs inthe Michigan case don't address this disparity. Nor do they object to the types of preferential treatment that mostly benefit privileged whites, including applicants whose parents are alumni or major donors. The briefs in the case submitted by military, business and academic leaders in support of affirmative action reflect its success in creating diversity throughout American life. Oliver Wendell Holmes said that "the life of the law" is "experience," and the experience of America and the careful application of affirmative action has been one of overcoming the effects of three centuries of discrimination.

The Supreme Court justices should consider the legacy and insights o[cuts off] Judge Wisdom, who, except for th[cuts off] Republicans' switch to the "Southern strategy" of the late 1960's, might wel[cuts off] have been a member of their body. A few months before before his death fou[cuts off] years ago at 93, he told me he was uncertain which was more important how far blacks have in overcoming discrimination, or "how far they still have to go."
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