I recently interviewed Professor Christopher Schmidt of Kent Law School in Chicago. In a wide-ranging discussion, Professor Schmidt and I discussed his recent paper on Brown v. Board of Education and the history of the 14th amendment, the Supreme Court's historical forays into affirmative action in higher education, as well as the recent SFFA v. Harvard and UNC cases (which also deal with affirmative action in higher education at the Supreme Court). Whether you're into American history, law, the Supreme Court, or the politics of affirmative action, this interview should have something for everyone.
The audio can be found on Apple Podcasts (search Citizen Analyst or use this link https://podcasts.apple.com/us/podcast/citizen-analyst/id1668663436), as well as the Podcasts & Interviews section of the Citizen Analyst website (https://www.citizenanalyst.com/podcasts-interviews), but for those that prefer to read, a transcript of our discussion is below.
A link to Professor Schmidt's background, his paper from earlier this year titled Brown, History, and the Fourteenth Amendment, as well as his most recent books, can all be found below:
Now here's the transcript of the interview. Enjoy!
PART ONE
Citizen Analyst: Hello everyone. Welcome to Citizen Analyst. Today I have with me Professor Christopher Schmidt. He is a member of the Chicago Kent Law School faculty since 2008. He teaches in the areas of constitutional law, legal history, comparative constitutional law, and sports law. He has written on a variety of topics including the historical development of the 14th Amendment, the History of Brown v. Board of Education, the Tea Party as a constitutional movement, how Supreme Court Justices communicate with the American people, and the rise of free agency in Major League Baseball. He's published in leading law reviews and peer review journals, and his article Divided by Law: The Sit-Ins and the Role of the Courts in the Civil Rights Movement won the 2014 Association of American Law Schools’ Scholarly Papers Competition, and the 2016 American Society for Legal History Surrency Prize.
Professor Schmidt is the author of two books: The Sit-Ins: Protest and Legal Change in the Civil Rights Era, and Civil Rights: An American History, published in 2018 and 2021 respectively. So, Professor Schmidt, welcome! And thanks for taking the time to speak with me.
Christopher Schmidt: Is my pleasure. Thank you for having me.
Citizen Analyst: As I mentioned to you before, the reason I wanted to speak with you was because of how much I enjoyed your paper from earlier this year on Brown v. Board of Education and its relationship with the history of the 14th Amendment. I was fortunate enough to come across it after listening to oral arguments for the Students for Fair Admissions (affirmative action) cases before the Supreme Court a few weeks ago, and its just a fascinating piece of scholarship. It’s very readable, its digestible, its balanced, and its extremely well researched. I first want to say a big kudos to you for doing great work there, and as you said earlier, without being too normative, you do a very good job of being balanced. So hats off to you in that regard.
After reading your paper, however, I thought you'd be a particularly interesting person to speak to because of what I see as kind of a very interesting irony between the Brown case and the recent SFFA cases, and that irony is just that the legal arguments being put forth by the respective sides have essentially kind of flipped now. The conservatives today are arguing what the liberals were then, and the liberals today are sort of arguing what the conservatives were back then. So we have sort of this legal merry-go-round that has seemingly come full circle. So hopefully we can get to that later on, but I guess first and foremost, I wanted to ask you: why did you write this paper and why now?
Christopher Schmidt: Actually I wrote this paper in part because I was invited to a conference on the 14th Amendment, and it has some material which I actually had researched for my PhD dissertation some years ago that I hadn't published yet in an article or book, and I was just excited to put it together and get it out there. So it was actually not something that I went off and researched because there's something pressing in the current event.
Citizen Analyst: Okay.
Christopher Schmidt: But I remember I had done this research into the history behind Brown v. Board of Education, which itself was a moment in Supreme Court history in which the justices and the lawyers involved were deeply interested in history. The PhD dissertation I wrote was on Brown, so it was sort of two levels of history. I was doing a history of the background to the Brown decision.
Citizen Analyst: Okay.
Christopher Schmidt: And then in the course of doing my study of the history of Brown, I became fascinated by the historical actors I was looking at, themselves being fascinated by another historical moment, which was the framing of the 14th Amendment. So yeah sort of two levels removed, and eventually I do get to the history of the 14th Amendment, which is central to the project of this paper. But really at the foreground on this paper are people in the 1940s and 50s, historians and lawyers and judges, struggling with how to make sense of this past moment in history. And then one of the projects of this paper was to figure out how they struggled with this history, how we struggle with this history, and what we might learn about the difficulties of using history and the legal decisions from the study.
Citizen Analyst: Ok fantastic, fantastic. I figured first and foremost, what would probably be helpful is to provide a little bit of background on the 14th Amendment. Unfortunately, I don't think most of us can recite all the amendments in the Constitution by my heart, so most people could use a little bit of a reminder of what the 14th Amendment is, what the key provisions are, and in this case, you know, I think we're mostly focused on the Equal Protection Clause. But maybe you could just provide a little bit of context into when it was passed by Congress, when it was then ratified, what the intentions were as you saw it, and then what people interpreted it as at the time, and then we can go into more after that.
Christopher Schmidt: Yeah, great. I want to say for anyone out there who's interested in the Constitution, if you need to study one amendment, this is the one to study. The 14th Amendment, I think by far, is the most significant of any of the amendments to the Constitution. So, the 14th Amendment was one of the three amendments that were introduced to the Constitution directly following the Civil War. So we have the 13th Amendment which ended slavery, that was ratified in 1865, the 14th Amendment. which protected rights in various ways, which we'll talk about a more detail in a minute, ratified three years later in 1868 and then the 15th Amendment which prohibited against racial discrimination and accessing the vote. And that was two years later in 1870.
Of these amendments, the 14th Amendment has been the most consequential, certainly in terms of what courts have done with the amendments. The 14th Amendment includes a number of different provisions. The ones that have historically been most significant are the Equal Protection Clause, which was the basis for the Brown v. Board of Education decision; the Due Process Clause, which is the basis for a lot of decisions, including recent gay rights decisions, or maybe some of the most consequential, as well as the right to abortion is based in the Due Process Clause.
And the 14th Amendment also includes a provision empowering Congress to enforce the rights within that amendment too. So the 14th Amendment both defined rights that the federal government would protect against state level infringement. as well as gave Congress the authority to pass laws in order to protect these rights.
Now the key innovation of 14th Amendment and the reason of 14th Amendment is by far the most important of the constitutional amendments is because prior to that, most of the constitutional rights, most of the rights listed in the Constitution were limited to the federal government.
Citizen Analyst: Right.
Christopher Schmidt: Meaning the federal government couldn't infringe rights to free speech and the right to bear arms. But it was not actually applied to the states. The Constitution gave very few limitations on state authority, but the 14th Amendment changed that. The 14th Amendment is a sweeping constitutional amendment, which should be recognized as giving considerable shift of authority away from states and toward the federal government.
And that's why it's really important to recognize the historical moment in which it was drafted and ratified, and that was after the Civil War. It was part of the post-Civil War reconstruction moment, in which the North was seeking to constitutionalize some of the changes of the Civil War, and that included more limits on states and more authority for the federal government.
Citizen Analyst: Okay, fantastic. So I think one thing that's interesting, given you say that, in my research, of just kind of the formulation of the amendment, one thing that is interesting, is that the way that they seem to actually word it, in its finality, it still actually is a prevention on the states and the way that it sort of operates is that it's a negative. It's a negative on the states, the states can't do certain things but if they do, then Congress can step in and legislate accordingly. So is these is that not how you read the amendment or I'm curious what you think of that?
Christopher Schmidt: Yes, I think you're alluding to the limitation of the amendment which constrains what the doctrine we refer to as state action. So it says states cannot infringe on equal protection laws, and not infringe on due process. It doesn't actually say, it limits the application of these rights protections to states, right? It doesn't say that someone who is not a state actor, someone who is a private individual. They generally have been understood to not be limited by the constraints of the 14th Amendment. so, for example, if there's some limitation of free speech by say, a private company, a private company is limiting free speech of their employees or some other way in which they're limiting free speech. Generally, that's not seen as a limitation that the 14th Amendment because it's a private actor, not a state actor. So sometimes this does arisein terms of trying to figure out what the 14th Amendment applies to or what it doesn't apply to. So clearly if a state is doing something the state passes the law, if the state police do something, if a state governor issues an executive order, all that clearly would be covered by the 14th Amendment. And then you just have a question about whether it is in fact to violation of one of the rights protected by the 14th Amendment.
Citizen Analyst: Yeah. Okay.
Christopher Schmidt: But private individuals generally are not seen as constrained by the limitations of the 14th Amendment.
Citizen Analyst: Right, which I think will become a topic once we get to the Civil Rights Cases of 1883 and a little bit, but let's, let's table that for just a second. So I guess because it becomes important in Brown, I think it is important to get into a little bit, how people at the time interpreted the 14th Amendment. So maybe you could go into a little bit of detail as to how people in general viewed this Equal Protection Clause at the time, what they did seem to think it protected or prevented and what it did not.
Christopher Schmidt: Yes, I think the best way to start answering this question because of course it's a great, big complicated question.
Citizen Analyst: Yeah.
Christopher Schmidt: But we start with what's pretty straightforward and easy. And I think most people at the time, including the drafters as well as people who ratified it, as well as the general public, if they were asked for their views on this, would have understood the 14th Amendment as at minimum doing the following: which was it prevented states from passing laws that explicitly limited the ability of black Americans to engage in the basic rights of public life, right? So this would be, for example, southern states directly after the Civil War, issued something that were called the Black Codes, which did things like prevented the freed people, black Americans, from traveling freely. It prevented them from testifying in court, right? Prevented them from holding certain forms of property. So these would be race-based discriminations related to the most fundamental rights of being a citizen of the country. The right to own property, the right to travel, the right to use the legal processes, and these clearly were deemed to be part of what the 14th Amendment was designed to prohibit. This is one of the things that the people who are urging the passage of the 14th Amendment, they were saying this is a big problem, we need to deal with this.
Citizen Analyst: Yup.
Christopher Schmidt: The federal government passed a law called the Civil Rights Act of 1866, which went directly at these laws. But there are some concerns that the statute might be overturned by a subsequent Congress, so there's an effort to actually put it into the Constitution to ensure (that that didn’t happen). So I think at minimum we can say, okay, it's designed to prevent racial discrimination, and accessing these fundamental rights. These rights in which you're not a fully free person, if you can't travel, buy property, testifying in court, things like that. Alright, so I think that's general agreement.
And then the trickier question goes, well, what about more than that? Because there were people at the time who were urging the passage of their amendment, and people out there in society who are urging it who believed it did more, right? Some of them actually thought it would go after other forms of discrimination. Some of them hoped that it would go after discrimination in voting, which quite clearly for the people who actually drafted it in Congress, they didn't think it covered that.
Citizen Analyst: Yeah. Yup.
Christopher Schmidt: Some people thought it would go after forms of discrimination beyond government discrimination. So some people actually thought that this amendment should prohibit business owners from discriminating on race. Some people thought that the amendment should be understood to prohibit forms of racial segregation. Again segregation is a form of discrimination, but it’s a particular form of discrimination where you're not necessarily denying access to things, but you're treating people differently when they have access to that. So, racial segregation say in a railroad car. So I think we have some clear issues in which the 14th Amendment was generally recognized as applying to, and then you have some issues just beyond that. Which I think the best reading of the history is that people were debating about whether the amendment applied to that or not.
Citizen Analyst: Okay. Okay. Fantastic. I have to say just as an aside, I mean one thing that I think your paper does elucidate very well, but one thing that's also clear when you go back and you look at this, or I think relatively clear, is just how influential the North was in 1865, 1866, really through the election of Grant in sort of shutting down and limiting the most optimistic cases (of the 14th Amendment). You do a great job in your paper of sort of outlining the 14th Amendment optimists and 14th Amendment pessimists. I think when you go back and look at this, I mean I was certainly struck by regrettably, how much of a case there is for the 14th Amendment pessimists and you really see even as early as 1865 where radical Republicans were trying to attach black suffrage as part of the Reunification program, Reconstruction program for the South to the Union, and time after time after time, it just felt like the rest of the Republicans in Congress just couldn't go there, either because you had state elections in each year or their own constituents just wouldn’t let them go there, the country regrettably just was not ready for black suffrage. Slavery was a much different story. Everybody seems to be on the same page about that. But it is striking to see how it does seem like a lot of segregation was not viewed as inappropriate under the 14th Amendment. So I want to see if we can sort of take that first of all, I don't know if you agree with that or not. I imagine part of it, you do, perhaps.
Christopher Schmidt: Yeah, I would just jump in on one minor detail there.
Citizen Analyst: Yeah, go for it.
Christopher Schmidt: The right to vote. The right to vote went through, something of a sea change in the years immediately surrounding and after the 14th Amendment.
Citizen Analyst: Yup.
Christopher Schmidt: It was quite clear that on the floor of the Senate in 1866 when they're debating the 14th Amendment, they explicitly say, the defenders of the 14th Amendment explicitly pulled out the right to vote and say it's not going to be directly constrained. There was another provision of the 14th Amendment, which sort of punished southern states if they denied the right to vote in certain ways, but it was not included in the key components of the 14th Amendment. But then we do have in 1870, the ratification of the 15th Amendment, and that just shows that right to vote which is seen as a more radical claim in 1866. Within a few years, it became more mainstream within Republican politics.
Citizen Analyst: Yup.
Christopher Schmidt: And therefore, we can accept it. Now, I would differentiate that from racial segregation more broadly in society in which I think that was a more ambitious claim that some people believed was affected by the 14th Amendment and other people didn't. And I think that remained contentious in the years following.
Citizen Analyst: Yeah, okay. So that's a perfect segue way because the work that I done sort of stopped right around Grant’s Inauguration. So given what you just said about the 15th Amendment, which essentially prohibited any restrictions on voting based on race or color. So as you said, a significant change even from three or four years earlier, so maybe you can help us start to bridge, maybe we get from Grant’s election in 1868 where almost everybody was praying that Reconstruction was going to be done (everyone was unfortunately wrong), all the way until we get to Plessy. Because it did seem like there is a lot of volatility in both public opinion and in Congress, and differentiation in a lot of ways on some of these key issues. So, as you said, 1870, it feels like much different time electorally than it did in 1866, 1867 when the 14th Amendment was being ratified. So I guess to the extent you can speak on it, what happened after Grant was elected that allowed the passage of the 15th Amendment that quickly?
Christopher Schmidt: I think a lot of is politics. So, the Republican Party basically saw that they had they had a lot of votes in black Americans, and if southern states were disenfranchising black Americans, southern states were coming back to Congress with more representation. Because remember you get rid of the three fifths clause, which is in the original constitution. The end result of getting rid of the three-fifths clause is that you actually have increased Southern representation, because more people are counting for purposes of districting and representation in the South. So you have more Southerners coming back into power and the Republican Party realized that if they didn't ensure that Black people's right to vote was protected, there’s going to be a lot of people who were adamantly opposed to the Republican Party, especially the Radical Republicans. So I think part of it was politics, part of it was principle. The whole idea about black, we're talking about black men here, black men voting,
Citizen Analyst: Yeah, good clarification.
Christopher Schmidt: In the years directly after Civil War, I think both for political reasons, as well as for principled reasons, it just became more accepted. So something that was seen as a sort of the next, and even at the time in the passage of the 14th Amendment, even those people who sort of said it doesn't apply to voting, many of them actually deeply believed in extending the right to vote. They just were being practical about it. They didn't quite have the votes to do it yet, but they knew it would be the next step.
I would also say if you look at black Americans and their advocacy, people like Frederick Douglass, they were apoplectic about the idea about taking the right to vote and waiting on that, right? They're basically saying it has to be put alongside these other rights, the rights against racial discrimination and contracting and properties and other basic rights. They said it all needs to be put together. So eventually that did happen. So yeah, the right to vote, I think did eventually become part of mainstream Republican politics, part of the principled idea about what civil rights requires in terms of what are the fundamental rights that are required to have people be fully part of the American citizenry.
So then I think the next round of debates, and there is one other piece of history I’d put in sort of after the passage and ratification of the 14th Amendment, but before you sort of get the period in which there is a large national pullback on a lot of the goals of Reconstruction, and that’s called Redemption, right? There was a brief burst of lawmaking in the early 1870s up until the middle 1870s in which Republicans maintained control of Congress and did pass some quite ambitious federal legislation designed to protect the rights of the newly freed slaves, leading up to and culminating in the passage of an 1875 law, the Civil Rights Act of 1875, which prohibited racial discrimination in public accommodations, you know, term for things like hotels and theaters and restaurants and things like that, prohibited racial discrimination there, which did actually get through Congress in 1875, right? So there was still some people trying to push to protect the rights of the newly emancipated through using federal authority based on the 14th Amendment’s enforcement power. So that did happen. What happened by the mid-1870s though is a lot of the momentum for protecting these, rights started to run out. The Republicans began to lose interest in pursuing aggressive reforms, and the South, the white South began to reassert itself, slowly pushing back against these construction policies, slowly at first, and then more aggressively.
And then you do get a period which leads up to Plessy. So part of this is going to be the work of the Supreme Court. The Supreme Court did limit some of the federal policies including that 1875 law, I just mentioned, they basically overturned it all on the idea of Congress not having authority to regulate private actors when enforcing the 14th Amendment. Only being able to regulate state actors and more generally, they pushed back at the same time. Congress is losing. Interest is the same time. Many people in the North were losing interest and then you have the period, in which racial discrimination, segregation begins to gain strength across the American South in the closing decades of the 19th century.
Citizen Analyst: I guess what’s interesting though, just to close the loop on that, is you mentioned how it was politically savvy for Republicans to give the vote to African Americans in 1870, but what’s sort of interesting to me about that is that all the Southern states were back in the Union at that point. So how did they get two thirds of Congress and three quarters of the States once the South was back in to actually ratify the 15th Amendment? Does that give you some kind of indication of the shift in the country I guess is the reason I would ask?
Christopher Schmidt: Yeah, there's a couple things going on there. I mean, one question is how did they ratify the 14th Amendment? Because at that point, Southern states had largely ratified the 14th Amendment. And that was actually largely through strong arm policies. There was constraints in place on southern states and basically, they were required to ratify the 14th Amendment in order to gain admission back into the Union. Alright, so there was a bit of a quid pro and in which they needed to accept Constitutional amendments, which maybe they didn't want to accept as a price of readmissions.
Another thing that's important to keep in mind is that in the second half of 1860s into the 1870s, a lot of these southern states actually had significant black representation in their legislatures, right? So in the aftermath of the Civil War, when the northern military was still in control of much of the South, they actually ensured that not only were the southern states prohibited, or at least largely blocked from these explicit racial discriminations, but they also ensured that Black men had the right to vote and Black men who had the right to office. And in fact, there are numbers down there which they were able to get significant representation. So if you actually look at some of the legislatures in late 1860s into the 1870s, some of them had black majorities or significant black representation, or black representation alongside whites who were sympathetic to their cause. So that's one reason and you're able to get Southern states to ratify things like the 15th Amendment, as well as if you look at some of the legislation come out of the southern states in this period, some of it actually was protective of rights for black Americans.
Citizen Analyst: Interesting. Okay, okay. Yeah,…
Christopher Schmidt: But that was a brief moment. The North pulled backed back.
Citizen Analyst: Right. Right. Right.
Christopher Schmidt: White Southerners begin to reassert control. A lot of that reasserting control was done by brute force, brutality,
Citizen Analyst: Yeah. Yeah, these are essentially coups. I mean, if you read this, it seemed like coups. Is that an unfair description of what happened like in Alabama, Mississippi…
Christopher Schmidt: Yeah, in places, that's exactly what it was. I mean you had whites intent on reasserting control. And so they push blacks out of control by armed violence and then by intimidation. And then you have, you know, things like the 15th Amendment becomes sort of empty paper for a while, because there are other mechanisms by which you're preventing on black men from voting.
Citizen Analyst: Right.
Christopher Schmidt: And disenfranchisement was widespread even when the 15th Amendment, you know, was still in the Constitution.
Citizen Analyst: Right, because of things like poll taxes, literacy tests, things like, that, that were easily abused by whites in the South.
Christopher Schmidt: Yeah, there's all sorts of mechanisms by which you can use.
Citizen Analyst: The grandfather test was another big one, right?
Christopher Schmidt: Those are all technically race neutral so therefore, they don't violate or…
Citizen Analyst: Right they're not de jure, but they’re de facto.
Christopher Schmidt: Then if those don't work, then you have other forms of, you know, violence or informal intimidation to see that black people are not voting, or not voting significant numbers.
Citizen Analyst: Right. Okay, so just quickly because I want to get to the Brown because I know that's the most important part of the conversation here. But how did we get to what seemed to be a positive upward climb towards more racial integration, to the back half of the 19th century where we had the Civil Rights cases (of 1883) and then when we had Plessy (in 1896)? I’m particularly curious why the Supreme Court felt the need to hear Plessy. Maybe the context around that? Maybe we just get right to that case so we can jump to Brown?
Christopher Schmidt: The Plessy case was actually pushed by racial justice advocates, right? There are people down in Louisiana who saw the segregation policies come in, I think in the 1890s when Louisiana passed a law. And they were looking for an opportunity to challenge it in the hopes of getting it struck down as unconstitutional, right? So the people who are actually pushing it were the people who were hoping the court would strike it down as unconstitutional. In the end, by the time it got the Supreme Court, the Supreme Court didn't seem to have particular difficulty with the case, but they decided in exactly another direction, which is they said that it is constitutionally permissible under the 14th Amendment, even with the Equal Protection Clause, to have racial segregation. And the Court basically concluded that racial segregation is not the same thing as racial exclusion, or racial discrimination of a sort, or at least the Court said that racial distinctions were Constitutionally permissible. And they said that it’s reasonable for a state to feel like they needed to separate the races in order to protect other interests such as protecting safety and welfare of the general population. And therefore based upon this assumption of the reasonableness of the policy of segregation, which is, of course just a normative position on the policy issue, the Court deemed this to be constitutionally permissible in the 14th Amendment.
Citizen Analyst: Were there any indications at the time? I mean were there any states that had decided that that was the case yet? Like what was the indication from these folks that they thought they could, if they did get to the Supreme Court, that the Supreme Court would rule in their favor? Because sometimes like there's breadcrumbs that have been left or certain states start to do things and then there's more public movement in one direction. It feels like that was kind of the opposite around the time of Plessy. But, help me understand that. Were there things that were happening that would give you optimism that the Supreme Court would not have ruled the way that it did in Plessy?
Christopher Schmidt: It’s a really good question, and I honestly don't know the answer to that. And the question is why would the people who launched this lawsuit think that they actually had a chance once they got through to legal process?
Citizen Analyst: And the reason I ask is really, not to interrupt you, but the reason I ask is because it feels very similar in a lot of ways to Brown. and hopefully, we'll get to that in a second, but it doesn't feel like there is a lot to ground a case that, you know, circumstances have changed, right? But of course they did. So go ahead with your answer, but that was just the context I wanted to give because it does feel like there's similarities in that case, where, you know, it looks like an uphill battle in both cases, but the outcomes were obviously radically different.
Christopher Schmidt: Yeah, I would just say that the context by the time you get to say the 1940s when the NAACP is really pushing the brown litigation and then by 1950 where they decide to do a direct frontal attack on the whole idea of racial segregation and the 14th Amendment. That context is so very different than it was in it 1890s.
Citizen Analyst: Okay, okay.
Christopher Schmidt: I mean the trend lines in 1890s were not heading in the right direction for people who are racial justice advocates, people challenging segregation. Segregation was a growing phenomenon across much of the south. In the north, there was a lot of de Facto segregation, some legal segregation, a lot of apathy in the north. So it's a really interesting question about why people would think that this could be a successful lawsuit, it could have been just some general faith in the law. It could have been the sense that it's happening, and, you know, this is the last opportunity to try and challenge it because the state seem to be all pushing this, a lot of states are moving this direction. But I would just differentiate it (from Plessy). In the 1940s and 50s, there are a lot of signs pointing in a much more progressive, more equality based direction.
Citizen Analyst: Okay.
Christopher Schmidt: It wasn't a sure bet at the Court still, it was still a hard case for the Court, but the directional signals I think were pointing in a different direction in that period than in the period around Plessy.
Citizen Analyst: Okay, got it and just for context here for listeners, Plessy was 1896 correct?
Christopher Schmidt: Yup.
Citizen Analyst: Right. And so we have a pretty big gap here between 1896 and 1952 when the court first heard Brown. So I guess you've talked about this a little bit before now and that it did feel like circumstances were starting to change. There were sort of racial justice advocates that were out there, that were really making headway. Sentiment in 1940s was not, you know, nearly the same as it was in in the 1880s and 1890s. Was there anything else significant out there? Whether it was appeals court rulings, district court rulings, movements by states, state supreme courts, anything like that that would have given the NAACP hope to really try to push for a case to be heard at the Supreme Court level? And think they can win?
Christopher Schmidt: Yes, to be honest, everything you just mentioned, you can actually find that if you look across the 1940s, particularly late 1940s into the 1950s, all those things were happening. State level court through beginning to strike down segregation policies. An important decision of California, I believe, in 1947 which struck down racial segregation involving Mexican Americans and segregated schools.
Citizen Analyst: Was that predicated on the 14th Amendment Equal Protection Clause, or what was the, what was the justification for that?
Christopher Schmidt: I believe it was a California constitutional provision. But again, just looking for signals of pointing the right direction. That's there.
Citizen Analyst: Yeah.
Christopher Schmidt: I'd say the Supreme Court issued some decisions beginning in the late 1930s continuing through the 1940s 1950s, in which they began to chip away at some of the premises of this whole idea of Separate-But-Equal as being Constitutionally permissible. They never actually struck (down) or said that you can’t have racial segregation, but they made it much more difficult to meet the requirements of equality that were demanded under this whole Separate-But-Equal idea. 1950 had two major cases involving higher education, which the Supreme Court basically struck down racial segregation in universities, saying that you could never really have real equality in say, the University of Texas law school could never be replicated with an equal black institution, and therefore you have to integrate. So you started to get required integration based on the 14th Amendment. Again, these are somewhat limited in terms of application, but certainly pointing in the right direction.
Northern states are beginning to pass laws, public accommodation laws, in terms of banning racial discrimination in certain public accommodations. They're getting rid of racial segregations and some of their schools across the north. The upper south, if you look, there's some movement in the late 40s into the 50s even before the Brown case, in which some upper southern states are moving toward racial integration. I mean, just to give you an example, Topeka Kansas, right? (This was) the district at issue in the Brown case, which is one of the five cases as part of the Brown cases Supreme Court. They didn't even want to defend their segregation statute. They were getting rid of it.
Citizen Analyst: Wow, okay.
Christopher Schmidt: But the Supreme Court said, you know you guys have it. They wanted the argument from Kansas. But you have these trend lines. So again, it's never assured that the Supreme Court, the Supreme Court still had difficulty coming to the decision.
Citizen Analyst: Yeah. Yeah.
Christopher Schmidt: But if you’re just out there sort of reading tea leaves, I think everybody assumed that the life of Separate-But-Equal as a constitutionally permissible doctrine was running out, and it's just a matter of when it was going to be done, and whether the Supreme Court was going to take that big step when they accepted these cases in the early 1950s.
Citizen Analyst: Okay perfect. So now when we get to Brown. 1952, my understanding is that they heard the case, and it was very divided. There were some justices that were looking at the original intent, the history of the 14th Amendment and sort of saying, well we have this long history of segregation, how can we just now say that it's no longer permissible? You had another group of justices that said otherwise, that it's time to change. Help me understand. And I guess one thing that I'm particularly curious on is how rare is it for a case to be heard twice? Because this seemed to be uniquely interesting in that regard as well. You had kind of a divided court and they said, Okay, let's go back and rehear the case. They gave specific questions to the litigants that they wanted to answered specifically around the original intent of the 14th Amendment, among other things like that. So maybe just I guess, first and foremost just to clarify, the 1952 case, how many justices actually decided to hear that case? Do we know the cert count for the original Brown case?
Christopher Schmidt: I don't know that we have a precise number for that. I think it was pretty clear. I'm not sure for the Cert though, but certainly when they sat down to discuss the case after hearing arguments, I think by most counts, there are four clear votes to overturn Plessy and to strike down racial segregation in schools. And perhaps more votes beyond that. So you need four votes to actually bring a case to the Supreme court through certiorari. So they had that number clearly to grant the case, but I think they even had that number locked in after the case saying were ready to take the move.
My understanding, is there were a few justices that were less clear, and then a few justices likely voting against. The votes at this point, you know, the historical evidence is not super clear because you're trying to repeat together notes that the justices had. Some of the justices had sort of axes to grind against other justices. So, when they sort of wrote up what happened, sometimes they sort of color certain justices in a more unattractive light, saying that they weren't ready, whereas they might profess that in fact they were just uncertain about how to get there, but they were leaning that direction. So the best takeaway is you had, four maybe five, maybe six votes likely on board with a desegregation decision after oral arguments in 1952, so this would be early 1953.
But what the Supreme Court didn't want at this point was a divided opinion, or they wanted to avoid that if at all possible. If they're going to take this step, they're trying to get as united a court as possible. So before the Court could really get to the point where it's clear about who was on board and who was not on board, they devised this sort of escape plan, I guess a stalling mechanism, right?
Citizen Analyst: Yeah.
Christopher Schmidt: And the stalling mechanism, it’s kind of transparent what they're doing. I think a lot of people outside the court kind of saw what they were doing, but they needed an excuse for why they wanted to stall, why they wanted to hear more arguments and just basically delay things trying to figure out how to come together. And the delay mechanism they settled on was a bunch of questions that they'd give to both the plaintiffs and the defendants, as well as they'd also asked the US government to participate, in answering a bunch of these questions. And the questions are kind of interesting, because the ones that I was most interested in are questions related to the original meaning of the 14th Amendment. It's not clear to me that any of the justices clearly had deep questions about the 14th Amendment.
Citizen Analyst: Well, I wanted to really talk to you about that. Yeah, keep going because that is the most fascinating part of this situation. They seem to really publicly predicate re-argument on this question of original intent. And then they get it back, they get this incredible research project from Alexander Bickel and kind of toss it to the side. So I think your point about them just kind of maybe using that as a public pretext, maybe that's the way to really square the circle here.
Christopher Schmidt: Yeah, I think I think that's exactly right. And the person who’s the real architect of the stalling mechanism was Felix Frankfurter. And Felix Frankfurter, there's letters that he was writing. He was buddies with Justice Robert Jackson. They have these letters which you can find where they're sort of saying “we don't need any more history here. We've already had enough history. We're not going to answer this question through history,” But yet Frankfurter is the one who's saying let's go send out these questions on history. There's a little bit of a wild goose chase.
Citizen Analyst: So, poor Alexander Bickel, who just for context for listeners is a clerk for Justice Felix Frankfurter, who I think was October 1952, he is tasked with going and basically digging up all of this research for the Court. And I guess one of the questions I had for you was, is the paper that he released in I guess it was November 1955, is that essentially the same evidence that he gave to the Court. Do we know that?
Christopher Schmidt: Yeah, basically it's the same, I mean, you could put the article side by side of this memo. It's the same research base.
Citizen Analyst: Basically, okay.
Christopher Schmidt: He cleaned it up a bit, streamlined it a bit for purposes of the Larvier article, but yeah, the gist of the research he put together is much the same as the basic argument of the article. And the article basically says, if you look closely at the details of the history around the framing and ratification of the 14th Amendment, most people did not think that it applied to racial segregation. Meaning, they didn't think that racial segregation would be struck down based on the 14th Amendment, right? That’s where most of the article / research and memo pointed to.
Citizen Analyst: Right.
Christopher Schmidt: But then he has that really interesting move toward the end of the article. And this is something that, you know, was very much in line with, he's writing a memo, you know, he was an acolyte of Frankfurter, and certainly building off of Frankfurter’s beliefs about how history worked and should be used. And he said, but we’re talking about a constitutional amendment, you don't read it like you read a statute, right? You read it like a constitutional amendment, which is you need to read it in terms of not only what it did at the time but what it was envisioned as doing. And he said if you read it more generally, the people who framed this amendment did not believe that their visions about what is and is not equal protection necessarily would constrain future generations, or at least it wouldn't be the sort of the only thing that would be considered. And they understood this amendment as something of our organic sort of act that would not just sort of carve out certain rights, but also empower future actors to understand those rights in their own way.
And particularly, you know, members of Congress who wanted to pass legislation. I think that's a clear lesson of the 14th Amendment, is that if the framers of the 14th Amendment were asked “Who are going to be the actors who are going to have most responsibility for enforcing it, or for, you know, making the 14th Amendment a lived reality in the future?” I think most of them would point to Congress and not necessarily the courts. But anyway, so they definitely thought that future generations would play a role, and that just because they had certain views that wouldn't necessarily constrain them. So again, this is just a position on how to interpret the 14th Amendment, which Bickel frames as part of the original meaning. So that original meaning includes the assumptions of what rights were protected and not protected by the framers and ratifiers, but it should also include how the framers and ratifiers understood how future generations would approach this amendment. And that's where the turn he makes at the end, in which he basically says, the simple fact that the people who framed or ratified it might not have thought that it applied to racial segregation, that should not be the end of the inquiry. We still need to understand the role that future generations necessarily should play based on, again, this is based on an original meaning argument, original meaning of the amendment is that future generations should play a role in giving meaning to the amendment, right?
Citizen Analyst: Now was that view, that last point that you made, many people look at Brown and they say that, that legal view (originalism), that legal philosophy, really started to take off because of the Brown case. But I think one thing that’s sort of interesting to me about this is that his (Bickel’s) view that you know you should read a constitutional amendment a little bit different than a statute. If you go and you look at just the changes in Constitutions across states from, you know, before the Civil War period. But also mostly after the Civil War period to early 20th century, they were starting to just become littered with common legislation, and they were starting to become these, you know, really long documents with all kinds of stuff in it that just doesn't seem like it fits in constitutions. So it seems like in a lot of ways at least getting into the early 20th century, people were viewing constitutional provisions the opposite of what Bickel was saying, and that actually, they were viewing them as just you know just another law. So was there any change in jurisprudence here? You know, at the federal, state, national level, whatever it might be, where there was this shift where now all of a sudden people were looking at these constitutional amendments and no longer just saying, okay, what has it meant in the past? And, you know, now they were saying what has it meant in the past? But what does the text say, and what does that mean for how we could interpret it in today's circumstances? Because it feels like the Progressive Era was the start of a lot of this stuff, but I don't have the legal context to kind of understand whether or not that change really started, like the foundations of that change and that emerging philosophy had really formulated in those early decades of the 20th century, or if Bickel in some ways is kind of the start of it.
Christopher Schmidt: I'm going to say probably not. So my reading of constitutional interpretation is that there's been a long tradition of understanding constitutional texts as simply a different form of law. And even if you call it law, it's just not the kind of law that we, you know, (think of as) statutory law. It's just something different. And I think that goes way back. And the classic citation for this is actually a John Marshall opinion in McCulloch v. Maryland, which is cited a lot by Felix Frankfurter and by the generation we're looking at it. I think it might even appear in Bickel’s article.
Citizen Analyst: Okay.
Christopher Schmidt: But it's where he has that language about it's a constitution we're interpreting, and a constitution is designed to endure for ages, and differentiating that from statutes which are designed to address current issues and designed to be dispensable when they no longer fit, right? So just the idea that a constitution functions differently and that are interpretive methods that we use to understand the Constitution should be different, and they should recognize the fact that a constitution should be understood differently. I'm going to say that's not particularly new, and it’s something that Frankfurter made his whole career about, before and after his appointment to the Supreme Court. It’s something that Bickel was quite committed to. But I really think it traces back all the way through American history. And I'd also say that it's probably different than state legislatures, because people just throughout much American history, particularly in 20th century, they just approach state level constitutions differently than the federal constitution, in part because of federal constitution is so difficult to amend.
The federal constitution has a sort of sacrosanct aura around it. We've never used the federal Constitution as a repository for sort of policy or legislation-like amendments. Even the relatively specific problem solver amendments we've had, they've all been framed in more general terms. And certainly things like the 14th Amendment is framed in very broad terms and it's not sort of designed to replicate any sort of statutory enactment. So, I'd say Bickel’s approach, which Frankfurter are really embraced, which is that when evaluating constitutional text, we shouldn't be constrained by original intentions, we shouldn't necessarily be constrained by the needs and desires of the historical moment that produced the amendment. I think there's a long legacy of that. I think Brown very much contributed to strengthening that but I think there's a lot before Brown and a lot after Brown on that point.
Citizen Analyst: So the next question I have, the other really interesting wrench in the Brown case is the fact that Earl Warren comes in in September 1953 (as the new Chief Justice). He is previously the governor of California, my understanding is that people were pretty surprised that he was nominated to the Court. Help me understand that timetable because he seems like he plays a unique role in getting everybody, you know, from the 4-4- or 5-4 split in Brown One to now, the 9-0, you know, 9-0 decision here. But it's interesting that he sort of comes in when he does and is able to do that given his sort of track record and, given he was so new to the court and all that. So, help us sort of frame that because I think that's a very important contextual part of the case.
Christopher Schmidt: Yeah, it's an absolutely critical part of the case and really important part of the history here. So Warren arrives in the Court in September 1953 as you said, and at that point the Supreme Court had heard the first round of oral arguments in late 1952, and had issued it's re-argument order with that long list of questions including the questions about history, and the questions also included some questions about implementing a potential desegregation decision. And then Warren arrives before the Court has heard the second round of oral arguments in which they're supposed to engage with those questions that the Court put out at the end of the previous term. So Warren came on because the prior Chief Justice Fred Vinson died over the summer suddenly of a heart attack on expectedly. And this gets him appointed. The reason he's appointed is basically because Dwight Eisenhower promised him a Supreme Court appointment in exchange for Warren's promise not to run against him in 1952.
Citizen Analyst: Ahh, okay. Yeah.
Christopher Schmidt: So there’s politics all through and through here. Warren arrived. Warren, you know, he was an attorney general of California before he became governor. So you know, he has a legal background, he was a lawyer, was an attorney general, but he really was a politician by this point. He had been a politician for at least 10 years before. And I do think that presented some challenges for him. There's some fascinating memos with his clerks and with other justices when he's struggling to write the Brown decision because he sort of had to figure out, you know, the legal issues, because he was a little rusty on this and he hadn't really engaged with this kind of legal issue.
But the skill he brought was political skill, right? He got on the Court and he was a natural political leader. He was a very likeable person. He was able to talk to the justices. He was not pushy with the other justices. He heard them out, listened to their concerns, and then ultimately put some pressure, some moderate pressure, just sort of urging a few of the holdouts to get on board. Then eventually through his skills of persuasion, which everyone who worked with them, like him or not, he was a persuasive, likable guy, and he was able to get a couple of more reluctant justices on board and get that 9-0 opinion within a few months after he arrived on the court. A 9-0 opinion that he would then take on himself, so he wrote the opinion in Brown v. Board of Education, which actually was two opinions because there's one opinion dealing with four cases having to do with segregation in states. And then a separate companion opinion having to do with racial segregation in Washington DC, which is also part of the Brown litigation, but he pulled that out, because the legal issues are slightly different for the Washington DC case.
Citizen Analyst: Interesting, I wasn't aware of that. Okay. Okay, fantastic. So we talked about how this, the tea leaves were moving in the direction of this, but when the announcement comes out that there's a 9-0 ruling, this is a political earthquake, right? What was the reaction?
Christopher Schmidt: Yeah, so I think the best reading of the reaction, the people who are at least paying attention was they were not surprised with the decision. I do think that the 9-0 was the surprise for people who were following the Court. You can see the direction which they're heading in. The fact that Warren was able to get a unanimous court behind the decision, I think was seen as somewhat surprising and a significant achievement.
I’ll say also quite notable at the time of the announcement was the fact that the Court announced that racial segregation was a violation of 14th Amendment. So they announced that this was a right that now black Americans had a right to desegregated schooling. But what the Court didn't announce was actually how they're going to implement that right. So what the Court did when they announced the Brown decision, which now we call Brown one, They said we're going to have another round of arguments, and if you're keeping count, this is round number three. In the next round of arguments, which was going to be heard to discuss implementation of the Brown decision, how they're going to implement the Brown decision. So that's another notable part, the notable part about the unanimity behind the decision, and then the way the Court divided up the ruling on the right at issue from the ruling on the remedy that you get for the rights violation. And they basically said we're going to hold off on that.
So it wasn't until another year later, this would be spring of 1955, that they issued the second Brown decision, Brown Two. And in the second Brown decision talked about how they're going to actually implement this desegregation order. And short version of it is, they said we're going to take our time doing it. We're going to hand it off to lower courts and lower courts are going to try to implement desegregation with the phrase that said “All deliberate speed,” which is, you know, sort of a vague term designed to give a lot of discretion to lower courts, or work with school districts to implement desegregation going forward.
Citizen Analyst: Okay, fantastic. So one question that I definitely had: were there alternatives, legally to, you know, from Congress's perspective to do what the Brown ruling did without the Supreme Court having to do it?
Christopher Schmidt: Yeah it’s a good question, because if you look at oral arguments in Brown, a couple of justices, Justice Frankfurter in particular, as well as just as Jackson, were kind of musing during oral argument, and they he told some of the lawyers challenging the segregation laws, saying the reason you're here is because you couldn't get Congress to do what you want, right? Which implies that Congress, if they so chose, could have passed some kind of legislation I guess to desegregate the schools.
Citizen Analyst: And they (the Supreme Court) wouldn’t have the struck it down.
Christopher Schmidt: Now, so, I definitely think that if Congress could have passed legislation to move in this direction, to desegregate schools or do something close to it, I don't think the Court would have struck it down, because the Court would have applauded the opportunity to not take the lead here. This is the one thing that Frankfurter and Jackson are so nervous about. I mean Frankfurter, he hated racial segregation, he was a member the NAACP before he got on the Court. As a policy matter, he's sympathetic to the NAACP. As a justice on the Court who believes in deference to legislation, he just was wary of the Court taking a lead. So if legislatures, if Congress wanted to take the lead, I think he would celebrate that and that would be great. The more interesting question for me is it's not quite clear that Congress has constitutional authority to do it.
Citizen Analyst: Right. Right.
Christopher Schmidt: It's actually a tricky question that has to do with that enforcement power of the 14th Amendment, which we talked about before, which Congress has but they rarely use. It’s this really potentially powerful weapon that they just haven't used all that much, at least not since the 1860s and 70s. So it's an interesting question. Congress might have been able to do it.
As a practical matter, there is no way that the Congress that was seated in the 1940s, 1950s was going to go anywhere near doing this, because Congress was dominated by white Southerners who had a ton of seniority and who’re able to block things up and prevent anything from happening. I mean, this is a Congress that couldn't even pass federal limits on lynching, right? I mean this is pretty low hanging fruit, when you're talking about basic things about racial justice. So they couldn’t even do this. They would not come anywhere near this, particularly not the Senate, which is completely controlled by White Southerners.
Citizen Analyst: Right. Right.
Christopher Schmidt: So, it was a bit of an academic question about whether Congress would do, or, you know, what would happen if Congress did it? But it's quite clear that Congress was not on board for doing that at that point. So it's really up to the courts, because southern states were not moving in this direction. As I said, northern states, and some of the sort of upper southern states, were starting to move this direction. But there’s very little signs that significant change is coming out of the Deep South. So this is why the Court felt like it was left in their hands by 1954.
Citizen Analyst: Yet by 1964, things seem to have changed again. Congress passes the Civil Rights Act of 1964, Johnson makes the famous statement that he signed away the South for a generation. So how are they able to do that 10 years later? And I don't know the vote count of the Civil Rights Act of 64, but my understanding was that was a reasonably comfortable win there. So what happened in the country that allowed that shift over that period too? Was it just the, you know, the things that we all saw, the horrible videos and things like that that just filtered into the public eye and public sentiment change that much during that period? Because it speaks to the same question of like, okay, if public sentiment was kind of moving in that direction already at this point, you know, the pull that the Court felt to be the party to sort of do justice here is that much more interesting when 10 years later It feels like they didn't. Hindsight obviously, is 20/20, but it didn't feel like they necessarily needed to be that party. But obviously that depends on the context. So what do you think of that? What was sort of the different context, in that next decade that allowed the Civil Rights Act to be passed? Or was that just passed because of the Brown decision, and that was the legal ground, that that act stands on?
Christopher Schmidt: You can't say it's passed because of Brown, because Brown, as important of a decision as it was, it didn't achieve a lot in terms of its primary target, which was racial segregation in the Deep South, right? The Deep South remained racially segregated in their schools up to the mid-1960s. So Brown actually had a limited effect there.
What happened? What got this Congress to move by 1964 with this hugely, significant 1964 Civil Rights Act? And the short answer is it’s the Black Freedom struggle. This is the rights movement. It's Martin Luther King. It’s the Sin-In movements. It's all these things that happened that weren't necessarily taking place in the courts, but they were working to change public opinion, and they're working to change political incentives for our elected representatives, right? And that just created a sea change in terms of where Congress was. So yeah, that that change was huge. Birmingham, spring in 1963, one of the key pressure points that got John F, Kennedy to get on board, and then after his assassination, then Lyndon Johnson saw this as something that he wanted to follow through on, calling on Kennedy's legacy, sort of passing in his name. There's a lot of activism, a lot of, you know, people who are risking their lives for this in the streets. And that's really what changed by the time 1964 comes along. It's a very different scenario.
The issue is somewhat different here, racial segregation in schools, you know, still very contentious and something the Court’s going to struggle with. The key issue in the 1964 Civil Rights Act was racial segregation in public accommodations. which was controversial, but just in terms of the big battles of the Civil Rights Era, this is a battle that was much less traumatic ultimately than I think school segregation, which we're still struggling with today. We're no longer directly struggling with the idea of racial discrimination segregation in restaurants and lunch counters.
Citizen Analyst: Right. Right.
Christopher Schmidt: So it's something in which the Tipping Point dynamic, was much more effective and quick, I think with the legislation there, One of the most important parts of the 1964 Civil Rights Act was actually Title VI, and Title VI actually comes up again in the Affirmative Action Cases. But Title VI says that any educational institution that gets federal funding has to meet federal non-discrimination requirements, which have been read to include the requirements of the 14th Amendment. So that actually really pushed desegregation forward, and that anyone who wanted to get federal funding had to get on board with desegregating their facilities, and that's what really made Brown, the right in Brown made it realized across the country was that federal enforcement that came through. Really beginning in 1964.
PART TWO
Citizen Analyst: We're going to pick up where we left off last time just after the Brown decision with the 1964 Civil Rights Act. Where we left off here was Title VI of the 1964 Civil Rights Act we said was really a key enforcement mechanism for the Brown ruling. So wanted to see if we could start out by sort of starting with Title VI and the 1964 Civil Rights Act. Bridge us from there to Bakke in 1978, and how does the development of affirmative action (play out) in society? It sounds like it's really developed based on my research of the reaction to Bakke. My understanding is that it really developed over the course of at least 10 years or so before Bakke in the 60s and in the 70s, but I'd love to just kind of hear you set the table for the Bakke case and then to the extent we can sort of bridge from Brown and the 1964 Civil Rights Act to Bakke.
Christopher Schmidt: Great. So yeah, just picking up where he left off. So definitely is important to recognize that Brown itself, as important as it was, when it was handed down in May of 1954, it was not a particularly effective decision if the goal of the decision was to actually desegregate schools across most of the country, particularly in the American South, where legalized segregation was still the law of the land the time of Brown, at least as far as schools went. So Brown itself did not actually produce significant desegregation in the Deep South. It was not until you had the other two branches of government, the executive branch and the legislative branch, stepping in support of the principle of Brown that you actually had effected desegregation taking place in the American South. And the key step here was the 1964 Civil Rights Act, which included a provision prohibiting any educational institution that received federal funding from racially discriminating, which is then aggressively enforced by the Executive branch under Lyndon Johnson at that point. And then eventually you have additional federal legislation. The Secondary Schools Act in 1965, which put a lot more federal money into public schools, which then created stronger incentives for public schools to meet the non-discrimination requirements of the 1964 Civil Rights Act. All this being more aggressively enforced by the executive branch meant that by late 1960s, you actually have significant enforcement of Brown. So Brown didn't really become the rule of the land, if you mean that by actually being implemented the way it was intended to be implemented at the start, for about a decade.
But then by late 1960s, you actually have very effective desegregation going across the South. Not perfect. There's still a lot of resistance. There's still a lot of subsequent litigation where the courts need to step in, but this is a point, if you just look at the numbers of the demise of racial segregation in schools, the late sixties early seventies is where you see a lot of movement forward on this front. So that was a product of Brown but Brown not alone, but Brown with executive and legislative support as well. And then once the Supreme Court saw that Congress and the Executive Branch was with them, then they actually has some additional decisions following up and enforcing Brown and making sure it's happening. Many of these decisions allowed lower court judges to implement remedies to actually produce desegregation in the schools. So those when you had Supreme Court upholding remedies such as busing, which is highly controversial as a political issue. But the Supreme Court upheld it in a unanimous decision in the early 1970s.
Citizen Analyst: And what were some of the key cases just so we know?
Christopher Schmidt: Yeah. So the two major cases I’d emphasize there was a case called the Green Case, from 1968, which is the first time the Supreme Court said that if you have a jurisdiction that had been ignoring Brown, basically for the years following Brown, and then they got rid of their segregation laws but they still had segregated schools, so basically they repealed the laws or stopped enforcing the laws but their schools remain segregated for all sorts of predictable reasons and that the segregations for a difficult to break down, there's a lot of norms and pressures, for kids, and parents to keep sending their kids to the same schools. The court said that's still a constitutional violation. Just getting rid of the laws is not enough. These school districts need to go in and actually break down segregation in the schools. And we're going to look at the numbers in schools, look at where the kids are actually going to schools, look at racial demographics, and use that to measure whether these districts are actually in compliance with Brown. So that would be one key decision, the Green decision from 1968.
And then the next decision is the one I alluded to a few minutes ago, which is the Swan decision in 1971, which had to do with a desegregation order in Charlotte, North Carolina. And that was when you had a federal district court judge imposing upon a school district quite aggressive remedies in order to meet the requirements of that Green decision. So they said busing may be required to move children across the school district in order to ensure that they really had desegregation, they said you need to keep track of racial numbers in the school districts. You might even need to impose temporary quotas to make that happen. So these are sort of putting real specific enforcement mechanisms enforced by lower court federal judges, and the Supreme Court upheld those kind of remedies as long as a remedies were applied as fixing constitutional violations. And again constitutional violations meant that not just refusing to get rid of the laws, but it's once you got rid of the laws, if you still had segregated schools, you're still in constitutional violation until you fix the problem of segregated schools, and until you actually had schools that were not racially identifiable.
Citizen Analyst: Okay, got it, got it. So that decision is only seven years before Bakke then.
Christopher Schmidt: Yeah. So Bakke then shifts gears a bit, because what we have in the enforcement of Brown cases are situations where you have court orders ordering school districts to do something in order to create racial desegregation. So basically here you have jurisdictions that are resistant to do things to create desegregation in fact on the ground, and the courts are stepping in and enforcing Brown and its progeny to say that you were required to do so and you'll be forced to do so by court order.
Now shifting gears a little bit to look at how the affirmative action cases developed. In these situations, there’s not remedies being imposed by courts. In these situations, you actually have educational institutions that are taking it on themselves, without any court order, without any mandate from the 14th Amendment saying they have to do this. You have educational institutions taking it upon themselves to adopt certain policies to have more racial integration in their schools. So that's what happened when you have The University of Davis Medical School, which was the defendant in the Bakke decision. They wanted to do it. They were not under court order to do anything. They felt like they wanted to have a policy that would increase more racial minority candidates in their medical school class.
Citizen Analyst: Right. So I think what's also interesting. I guess just to set the context here, the Bakke case involves a white male, I believe in his mid to, I think the second time he applied he was 38, who was trying to apply to the University of California Medical School, had been rejected both times, and at that time the University of California Medical School had a set aside program for I believe 15 applicants, correct me if I'm wrong, for what I think what they called disadvantaged groups. So the case was largely about sort of whether you could give preferential treatment, not just equal treatment, but preferential treatment to groups viewed as disadvantaged.
I think what's also interesting context about this is the entire Brown court at this point had been turned over, and seven of the nine justices on the court were now actually appointed by Republicans. So seemingly this would be a completely different court in a lot of ways, but obviously we ended up getting a decision that actually continued to kind of move this forward, if you will. So I guess what did Bakke specifically rule and I guess are there any important other contextual parts of the case that I didn't mention there?
Christopher Schmidt: Yeah, so that's a good summary of the background for the case. I would just say that the thing about Bakke as a constitutional law decision is that where Brown was a case where the 14th Amendment was read to require jurisdictions to take action to break down segregation, in Bakke, the question was somewhat inverted. You had these States or state institutions that wanted to break down segregation on their own. This is a decision that they made independent of any requirement from the Constitution. But then the courts came back and said wait, the Constitution may put limits on what you can actually do in terms of using race for the purposes of breaking down racial segregation, or including or advancing racial opportunity for disadvantaged minority groups. So that's why I have a bit of an inversion here. The 14th Amendment in Brown was primarily being used as a tool to fight against racial segregation. Here in Bakke, you had the 14th Amendment being used as a tool, but in this case to put certain limits on efforts by states to impose or to adopt policies that they feel like is required to break down racial segregation, or at least open up more educational opportunity to racial groups that had historically been disadvantaged. So that's what the University of California was trying to do with this particular approach.
You're right to identify that the court was much different at this point. There's a lot of discussion about what the principle of Brown meant at the time of Bakke and these are still debates were having today. But the court itself was different and also I'd say just the partisan breakdown of the issue was not nearly as predictable as it has become in more recent years. In fact, Richard Nixon, Republican president who appointed a good number of justices on the Bakke Court, he supported certain policies as president which were racial preference policies in certain parts of federal policy. The breakdown is not as clean as it eventually would be. There's some Democrats who are resistant to certain affirmative action plans.
Citizen Analyst: Yeah. Democrats in Congress you mean right? Like in the Senate and things like that?
Christopher Schmidt: Some Democrats in Congress. The Jewish community was very ambivalent about racial preferences, There's a long history of racial discrimination against (the Jewish community).
Citizen Analyst: Yeah. Yeah.
Christopher Schmidt: So some of the leading Jewish activist groups actually submitted briefs and brought in Bakke, you know, by people who oftentimes identify as liberal in many other contexts, but in this case, they submitted some briefs supporting Bakke himself opposing the affirmative action policies. So the sort of the clean ideological and partisan divide on affirmative action was very much still taking shape in the 1970s and even into the early 1980s during the period in which Bakke was decided, and the controlling opinion in Bakke by Justice Lewis Powell. Lewis Powell was an appointee of Richard Nixon, a Republican president.
Citizen Analyst: Yeah. And I think to your point, that's why we had I believe six different opinions written here, and Powell joined two opinions.
Christopher Schmidt: Yeah.
Citizen Analyst: Yeah, I mean it's a very fascinating case from that perspective too.
Christopher Schmidt: It’s a fascinating case. It's very messy in terms of how opinions come out. There's lots of different opinions, there's different issues that are talking about different aspects of the case. In the end, the big takeaway from Bakke is that the University of California system was struck down. There are five votes saying that it is unconstitutional what the University of California was doing. And the primary problems with what the University of California is doing is that they had basically a whole separate track to evaluate racial minority candidates, which was both a quota and a separate, sort of a separate track, which they said, is not permissible. But you also had five votes, if you count the Powell’s vote plus the four liberal justices who are willing to uphold the program, in which they outlined a path forward for affirmative action. So they said even though what the University California is doing is unconstitutional, there is a way in which you can have race conscious selection in higher education that can be constitutionally permissible. Ironically, considering what's going on currently, the model that Justice Powell identified for a university that used an acceptable form of race conscious decision-making was Harvard College, right?
Citizen Analyst: Right.
Christopher Schmidt: Harvard College offers a good model because what Harvard does is they don't have a separate track, they don't have a set number. They have a holistic analysis, they look at each individual candidate, and one of the factors they will consider alongside all sorts of other factors will be racial identity. But never the only factor, never a factor that's analyzed in separation from other factors. That is a holistic analysis in which race is used as a plus factor. I think that's the first time this idea of “plus” factor really became prominent. I don't know when the first usage of that term was.
Citizen Analyst: I think you're right, I haven't been able to find anything else either. I think this is the first notion of that.
Christopher Schmidt: Yeah, for sure the first time I mean, you know Powell was the first person to really lay out this whole framework. It’s very much Powell's approach. Because four justices were basically going to say something pretty close to this being categorically impermissible, and four justices were actually supporting analyzing affirmative action policies with a much more deferential standard. But Powell’s the one who said no, it’s using race, that’s a concern that the courts need to look very closely at, so apply the highest level of scrutiny, whenever any government uses race, whether it's for good purposes for breaking down racial segregation, or whether it's for the bad purposes of imposing racial segregation. We still need to look really closely, and you need to apply what's called strict scrutiny. But the key point Powell made was you can apply this high level of scrutiny standard and still find a way for schools to have a window of opportunity to continue to use race if they do so carefully. So that was what Powell said, and that was basically The Law of the Land from 1978 Bakke pretty much through today.
Citizen Analyst: Yeah, okay. So one of the things just to highlight to is the ruling was determinative based on the based on this view of the 14th Amendment again. So looping in our, our prior discussion. The opinion was based on an interpretation that the 14th Amendment allowed race to be used as a plus factor, so just to sort of summarize, the context here in 1868 when the 14th Amendment passes, right? The language is pretty clear cut, at least at its face. But then we have this ruling in 1896 plus verse Ferguson that says Separate But Equal is okay, it legitimizes segregation. 60 years later, we have Brown versus Board of Education, and that says no, separate can never be equal, because of things we talked about last time, where the experience is just so different that that can just never be the case. And now, a mere 25 years later, the 14th Amendment is being reinterpreted to say that we can use race in certain cases so long as its done under strict scrutiny, and another important part of the case is that it must be done under the guise of a compelling state interest. So I think that's important context, anything incorrect about that about any of my statements there?
Christopher Schmidt: No I think I captured it pretty well. I mean the 14th Amendment has gone through many different iterations in terms of how it's been used and how the courts understood and apply that. I think just looking at the tail end of that story. What we do have in Brown and subsequent cases, is the court does consolidate around the idea that anytime government uses race, we need to be very careful. Now, this assumption again, and the technical term here is you're going to apply strict scrutiny standards to any racial classifications. This assumption was born of the era when the reason government used race was for generally bad purposes, generally to impose white supremacist norms, to impose racial segregation. So, in a period of the 40s, 50s, and 60s, when the court adopted this presumption, the presumption is racial classifications, use of race by government is a problem. And therefore, we need to look really closely. This was the black freedom struggle. This is a moment in which race was used overwhelmingly for invidious discriminatory purposes. So the Court created a rule basically that would go directly at this problem and that would make it very easy for lower courts when they came to cases in which race was being used to be very easy to strike it down, right? And that was the goal of much of the constitutional jurisprudence in Brown and thereafter.
Now the tricky situation comes, when you start to have some governments that want to use race, but they don't want to use it for that invidious discriminatory purpose. They want to take race into account for more benign, beneficial purposes, oftentimes for purposes that go directly against the reasons that race used to be used. And then the question for the court was, do we adopt a rule in which anytime race is going to be used there's going to be one standard? Or can we have different standards, determined by whether race is being used for, to put it simply, for good or bad purposes?
Citizen Analyst: Yeah.
Christopher Schmidt: There was a moment in time in which the liberals on the court really tried to make a fight for saying when race is being used for purposes that are not invidious discrimination, not to subjugate and to harm, that different standards should apply. They didn't say it's a free pass. I mean, technically they urge something called intermediate scrutiny, but you can still meet that standard pretty readily. They fought that fight and they lost, and they lost largely because of Bakke, because Justice Powell said, no, any time race is going to be used, that one standard is strict scrutiny. But the qualification is that strict scrutiny doesn't mean that the government always fails. It does offer a very limited path forward. So Bakke is both a loss for those who believed that the use of race for beneficial purposes should be measured differently, but also a victory because it didn't completely close off the possibility of using race to try and address racial inequalities, to try and achieve certain beneficial goals such as racial diversity in higher education.
But the key move just to get back to your question, is the 14th Amendment is being used by different actors here, right? If you think about the 14th Amendment, as the primary constitutional weapon to attack racial inequality in society, by the time you get to the 1970s and Bakke, the 14th Amendment is no longer being used primarily to attack racial inequality.
It's being used to attack efforts, whose proponents say we are trying to achieve racial inequality. So that's the concern that a lot of people have about sort of the inversion of the purpose of the 14th Amendment. The 14th Amendment is primarily designed to create a more racially equal society, to create more opportunities for the newly freed slaves in the Reconstruction era, and to create more opportunities for people as those enforced through the black freedom struggle. This is a different kind of 14th Amendment, a different kind of equal protection clause that we see being enforced by the Court by the time we get to the affirmative action cases.
Citizen Analyst: Right. Okay, so let's table that because that that becomes the key topic in the SFFA cases. So you mentioned that Bakke is basically the law of the land, that race can be when it comes to higher education so long as there’s a compelling state interest, of which diversity—a diverse student body—is deemed to be a compelling state interest, according to the court, that race can be used as a plus factor, but only as part of many factors, so long as its not a determinative factor. So that’s basically the Law of the Land For 25 years, we get to now two other cases that were decided at the same time, Grutter and Gratz, both of which were against the University of Michigan, the law school, which was Grutter and then the undergraduate LSA program, which is Gratz. So maybe you could just touch on what you view as the significant parts of those two cases?
Christopher Schmidt: The big headline of what happened in 2003 with their Grutter and Gratz cases is that Bakke survived. Powell's Bakke, Powell's vision in Bakke basically survived to live another day, and many people thought that was going to be the end of the story. Which meant that Universities could still use race conscious decision making as long as they met those key requirements of pursuing a goal of racial diversity in the classroom, that had to be the goal of any policies. And the policies themselves needed to be holistic with race as a plus factor, just the way you described it really well. All right, so that's the big headline.
Now looking a little bit more closely at what the Court was looking at in those cases. Because in those cases, they looked at two different admissions programs at the University of Michigan, and upheld one, and struck down the other. The one they struck down is the undergraduate admissions program in which they used a scoring system to assess applicants for undergraduate enrollment at the University of Michigan. And the scoring system looked at each candidate individually, but it attached a number to different things like class rank, like whether they had a parent who went to the school, and one of the numbers are, one of the components of the scoring system was race. All right, so University of Michigan tried to defend this program saying we're still looking at every candidate individually, we're still doing a holistic analysis in which we're never separating race from other factors. But, they attach numbers, and the court struck that down saying this is too blunt. This is not narrowly tailored. That there will be a certain subset of cases in which clearly race, which was a pretty big number compared to other numbers, race will put someone over the threshold of getting admitted or not getting admitted, and therefore you could actually identify the cases in which race was a determining factor. And the Court said you can't do that, you need to, basically, do better. Then they looked across campus to the law school and the law school basically did the no numbers, holistic, race is a plus factor admissions program that Justice Powell identified with what Harvard used to do, and what Harvard was still doing to that point. And they said you can do that, right? And the difference there was that it was an individualized analysis but there's no numbers attached. It was more subjective. And there's no instance in which you could just say this person got in because of their race, it was just more of a holistic analysis. And the Court said you can do that, closely divided in this case.
Justice O'Connor was really the key vote because Justice O'Connor was in the majority of both those cases. So she voted to uphold the law school admissions program, and she voted to strike down the undergraduate admissions program. So, for Justice O'Connor, there's a meaningful difference between whether you attached numbers to different factors that you then assessed or whether you didn't test numbers. And that really was a key difference. Again, headline, is that carefully managed holistic analysis for the purpose of diversity is still constitutional. But the Court just basically put the universities on notice that they're going to look pretty closely and make sure that it is, in fact, holistic. Numbers seem to be problematic. So, universities ran far away from using numbers at that point, because that seemed to be something that would move the program from being narrowly tailored to not being narrowly tailored.
Citizen Analyst: Okay, so the Gratz case was struck down six to three, and Grutter was upheld five to four. I think the key reason why Gratz was struck down though, so just to give people some more context. There was a hundred point scale for the LSA admissions program, and the key issue that I think a lot of the conservative justices latched on to was that 20 points were given to minority applicants automatically. That had the effect of basically allowing any qualified minority applicant to get into the University. So in that case, they said, this is too determinative, race has become too determinative, and also for the reason you mentioned, not only was it becoming too determinative, but because you were applying the same 20 points across all minority candidates, that was not strict scrutiny.
Now, what's interesting is if you look at someone like David Souter, who I believe in the case said that these admissions programs are doing effectively the same thing, but as you said, Gratz was using numbers and doing it a little bit more bluntly, whereas the law school seemed to be doing it a little bit more, you know, holistically. Now, even there though, if you look at Justice Rehnquist’s opinion, which I believe is the dominant dissenting opinion in Grutter. He said look, these admissions programs are essentially the same, as Justice Souter said, but the bands of admissions here are so tight every year that it's pretty clear what the schools are doing. So this is going to come up again and SFFA, so I just wanted to bring it up here as well briefly. So David Souter’s saying, well if Gratz is unconstitutional, then Gutter probably needs to be as well, because the programs effectively do the same thing. One attaches numbers to it, the other is just doing it under sort of the cleaner you know, more holistic review. So one gets upheld, the other doesn't, but the precedent is sort of set that you don't really want to use numbers. You want to try to do whatever you can to, you know, look at applicants as individually as possible. And that's what will help these universities survive strict scrutiny going forward. Anything that you would take issue with there?
Christopher Schmidt: No, that's great. So and the one thing I would add to that is by making universities wary of numbers, one of the implications of that is that universities are actually rewarded for less transparency, right?
Citizen Analyst: Right. Yeah yeah.
Christopher Schmidt: The more transparent the race conscious decision making program is, the more at constitutional risk it is. And this is something to dissenters raise in the Gratz case as you referenced. So they did say there's something, you know, maybe some bad incentives here that we're creating a constitutional rule that the more we obfuscate what’s going on, the more likely we're going to uphold it, right? So this is definitely going to be a factor when we move forward to the current cases and that, you know, trying to get out exactly how this program works. Universities don't really want to explain in a lot of detail about exactly how it works. They want to say it's all very, you know, qualitative and holistic and subjective, and there's a lot of factors going on, and we can't just boil it down. Well, that's what the constitutional doctrine forces them to do.
Citizen Analyst: Yeah.
Christopher Schmidt: But then, of course, you're going to get pushback and we saw this play out in Grutter and Gratz, we're seeing it playing out with the Harvard and UNC cases. And the pushback is that, how are we the courts supposed to have oversight? Because we have to make sure you're meeting your narrowly tailored requirement. How are we supposed to have oversight over this when no one really will tell us exactly what you're aiming for and how you're achieving that and how you know you get there. So that's just one of the, it's one of sort of these things that's frustrating about the affirmative action arguments in the court is that they're very circular. You feel like the arguments keep going around circles. That is very much a product of the constitutional doctrine of the Court has created in Bakke and Grutter and Gratz.
Citizen Analyst: Right.
Citizen Analyst: Right. So that's a perfect segue way for Fisher, which involves the University of Texas. And what's sort of unique about this is Texas, if you're in the top 10% of any high school in the state (of Texas), you're automatically admitted to UT. And then they also have this separate program where if you are just an exceedingly gifted academic achiever, you can be admitted on that ground as well. And then the rest of their admissions program tries to do something relatively similar to what the University in Michigan Law School was doing in the Grutter case.
But, what seems to be interesting here is, and I'm curious to hear your take on this, is one, deference to the university in the case of Fisher and UT was exactly the issue that someone like Anthony Kennedy was running into problems with, at least, that's what it looked like on the outside. My understanding though, is that even before the Harvard and UNC cases, the court was actually starting to lean in the direction of really, really rolling back the use of race in higher education admissions. And I think this comes from a Sonia Sotomayor biography, but that Kennedy had actually written an opinion in Fisher versus Austin, the first time, Fisher versus Austin One, to really roll that back. Sotomayor apparently writes this blistering dissent opinion and kind of spooks everybody at the court. They decide that they don't want to move forward with that, and sort of take the risk of a really politically divisive opinion. Kennedy goes a different path, but the way that the ruling does actually play out is it gets appealed to the court, the court hears it, the court rules that the Fifth Circuit gave the University of Texas too much deference and they that they didn't apply strict scrutiny. So it goes back to the Fifth Circuit but then it gets sent back to the Supreme Court again. So I guess, two questions I have for you on this case, and then we can get to UNC versus Harvard. First of all, are the background political dynamics that I mentioned before, is there any merit to that? And I guess, is there anything else we should know about Fisher other than that it was mainly heard by the Court seemingly to sort of re-emphasize this focus on this requirement of strict scrutiny?
Christopher Schmidt: Yes, I think the key thing about Fisher just building off the background that you laid out really nicely, A couple things one is one of the hardest things for the courts to figure out is how to exercise meaningful oversight over the narrow tailoring requirement. Alright, because narrow tailoring basically means that if the university wants to use race, they need to do so in a way that imposes racial distinctions, discriminations, classifications as little as possible in order to achieve its goal, and that goal in all these cases is creating a diverse setting in the classroom.
Now how to measure that is really difficult. And ultimately, many of these cases give significant amount of deference to the schools to determine the kinds of policies that they need in order to stay true to their mission, while also achieving, or staying true to their mission as they define it, because these are educational institutions and the court doesn't want to tell them, this is what you're doing, right? They're supposed to decide for themselves this is what we're trying to achieve. And when they want to use race, they need to do so as little as possible, while remaining in line with what they want to commit themselves to, while also trying to achieve racial diversity. So what I've just described there should sound confusing because it actually is really confusing.
Citizen Analyst: Yeah
Christopher Schmidt: And the idea is the whole doctrine here is premised on the idea that the courts can exert this oversight over these decisions that these universities are making without imposing their own views about universities are here for x y and z purpose. It's just incredibly hard, right? So there was this really interesting moment, for example, in the University of Michigan case, where Justice Thomas, he's writing this dissent, in the Grutter case saying University of Michigan Law School, you don't really need to use race if you don't want to. For example, if you really were so interested in actually creating racial diversity in the classroom, why don't you just have random selection process for your entering class? Give up on your commitment to being an elite educational institution, have a random selection, and you'll have a more racially diverse class, if that's truly what you want, but you don't really want that. That is what Thomas was saying.
Citizen Analyst: They want to have both. Right.
Christopher Schmidt: Right. So then the question is, do you want to have both? So then you have to have the assumption that the courts are going to defer to the definition of the educational institution, the educational mission of the institution. So the University of Michigan Law School wants to be an elite educational institution. They also want to do these other things. Now at that point, trying to figure out whether they're using race as little as possible, it becomes a little bit confusing because they're defining what they're trying to do, both as an educational institution, as well as trying to achieve diversity. They're largely defining what diversity means. And this is another point, in which the Court has always arguing a circles, like what does diversity actually mean?
Citizen Analyst: Right.
Christopher Schmidt: Basically University of Michigan is giving broad latitude to define that. But, all this points toward significant levels of judicial deference to educational institutions, which was a theme of Justice Powell's decision way back there in the Bakke case. But, it can't be too differential because this is supposed to be strict scrutiny, which is the opposite of deferential. So you just get a lot of tension in this whole doctrine, and that's just sort of built into the doctrine.
I think Justice Kennedy was very divided on this question in his earlier decisions. He tended to be highly skeptical toward any use of race, as you indicated with the reference to the first time the Fisher case came through. He seemed to be leaning toward telling University of Texas that they can't have this race conscious admissions policy because they're able to achieve significant racial diversity with their 10% plan, which the court presumed was a racially neutral plan and therefore it was an alternative that had to be considered before using any race conscious plans.
He did seem to move, I think. This was a later Justice Kennedy, closer to his retirement, where he did seem to be maybe more open to the use of race. So I do think his vote in the Fisher case was maybe a little bit surprising to some in which he did seem to shift gears a bit from some of his earlier affirmative action cases, for you know, whatever reason. But I do think part of it was that he didn't like giving too much deference to Texas, and in the Fisher case he insisted we're not supposed to give you much deference. But yet he still said that you can have both the 10% plan, as well as a race conscious plan on top of that, because, basically, you are telling us you can't achieve the diversity that you need without both, and we're going to allow you to follow through on that assumption.
Citizen Analyst: So why do you think that they decided to hear Fisher again? To just kind of hammer home that point? Because it is sort of weird that they decided to hear it again after they sent it back down to the Fifth Circuit, telling them that they needed to rehear the case, but, you know, make sure that Texas is following strict scrutiny. I think that's why a lot of people thought that they were going to overturn it. But then he doesn't, like you mentioned. So why do you think they decided to rehear Fisher?
Christopher Schmidt: I think they still needed to rehear it, because even after the Fifth Circuit did their case they still, if they were going to overturn Grutter with the Fisher case, they still needed to hear it. In the Fisher case, Grutter was not squarely on the chopping block, because the argument of the plaintiffs for Fisher was that the University of Texas should not use race conscious decision making, but they should not use race conscious decision making because they have a proven race neutral alternative, which is the 10% plan.
Citizen Analyst: Right.
Christopher Schmidt: So, the Court in the Fisher case could have struck down at the University of Texas was doing, and that would not necessarily have undermined the constitutionality of what a place like Michigan we're doing, because many universities can't use a 10% plan. The only reason a 10% plan works highly effectively in Texas is because Texas has such stark residential racial segregation in its schools, that the 10% plan can actually achieve significant racial diversity. If you're in a jurisdiction in which you don't have that kind of residential racial demographic pattern, the 10% plan won't be nearly as effective. So you know that was the idea that the plaintiffs were arguing. It was, I mean the plaintiffs were trying to go straight after affirmative action. It’s the same group that's arguing the Harvard and UNC cases.
Citizen Analyst: Yeah.
Christopher Schmidt: But in that case they didn't think they had the votes necessary to do that. They're trying to sort of have a partial victory in Texas, but they ended up losing that case when Kennedy was willing to ultimately uphold the Texas plan when they reheard the case.
Citizen Analyst: Seemingly, I'm speculating here, but it feels like, as you said, as he got older, not only was he sort of maybe, you know, becoming more open-minded to, you know, to this idea, but it also felt like he was assuming the role of Justice O'Connor during the Grutter era, and therefore maybe didn't want to be the swing vote that uprooted what was now going to be 50 years of Supreme Court precedents.
Christopher Schmidt: Yeah, there's a lot of trying to get into Justice Kennedy's head.
Citizen Analyst: Yeah, that’s fair.
Christopher Schmidt: I will say he has never, even though he generally voted against affirmative action plans, he oftentimes expressed a lot of discomfort with the idea of attaching value to racial identity when making individual decisions. He throughout his career was not as doctrinaire in that sort of color blind commitment, as some of his more conservative colleagues. That he generally saw race as something that was problematic that needed to be used very carefully, but he never subscribed to the idea that the Fourteenth Amendment commands that government can never take account of race. That hard line, he had never adopted, so he is probably more open to accepting some limited use of affirmative action than other possible justices.
Citizen Analyst: Ok, Ok.. All right. So now let's get to the Harvard and UNC cases I guess. First and foremost, I'm curious. How does an issue that has been at the court now three times before, I guess if you wanted to count Fisher twice, it's been there five times between Bakke, Grutter, Gratz and then two Fishers. How do the wheels on the ground start rolling towards Hey, we should try this issue again? Just because there’s more conservative justices? I mean I guess like how did it how do the opponents of an issue like this decide that's worth their time to go at this again? I'm curious about that first and foremost because it feels like some signals are sent through, you know, certain channels that we all don’t know about sometimes, but that there's sort of a wink to say, Hey, if you brought this case forward, you know, I know that Justice Roberts has been, you know, pretty critical of Grutter and Gratz and affirmative action in higher education in general. Alito has been very critical in Fisher. We don't really know about Kavanaugh and Barrett at this point because they're new. But I'm curious just like how the mechanics behind something like this works. Just so we can sort of set the table for the new, you know, the latest cases because the context here really is that, the key question is whether through Grutter should be overturned. So, in the context of a Roe v. Wade being overturned, it's a much different question now. We're not we're no longer evaluating what the definition of strict scrutiny is and what kind of deference we should be giving to universities? We're asking the big question again. So how does that sort of happen mechanically?
Christopher Schmidt: Yeah. So I would say a key factor is one that you identified, which is a change in composition of the court just makes certain kinds of arguments more attractive to litigation groups that are just looking to where we're going to invest our time and energy and money. And you look at the Court, you just try to make an assessment of whether it makes sense. So clearly, the recent appointments to the Court. The Court having this six justice conservative majority clearly makes these kind of cases more inviting. And again, the concrete evidence of that is the fact that the lower courts upheld the policies and Harvard and UNC. There's no reason to Court needed to hear this case, other than the fact that they felt that there were four votes to grant certiorari.
Citizen Analyst: Right.
Christopher Schmidt: And I assume the four people who voted to grant certiorari looked around and thought that there's a good chance that we have five or six votes to actually change the law. Otherwise you know there's no reason to take this case, because there is as you indicated, it's a replay of the kind of cases we've seen before. So for sure, the changing competitions of the court is a key factor.
I'd say other factors, there's a lot of money in this side that's challenging this, right? Edward Blum, who's sort of spearheading this and other people supporting this. So, you're just trying to think about how you sustain a litigation campaign year after year, even when you're, you know, you don't seem to be succeeding.
Citizen Analyst: Yeah.
Christopher Schmidt: Part of that's funding and there is funding to keep this going. So I think even if the Court was not as attractive, I'm sure that there would still be sort of movement afoot. Maybe more of the attention would be focused on statewide referenda, which is how many of the anti-affirmative action figures have happened over the last couple generations. But now that you look at the Court, you can sort of can change your attention to focus on the Court because of the composition of the Court.
Then I'll also add additional component, which is the one big new factor of the current litigation does relate to the questions about discrimination or disadvantaging of Asian American applicants to Harvard.
Citizen Analyst: Right. I was just going to say that's kind of the new context here. The new angle is that we're, you know, the petitioners are no longer whites, right? It's another minority group now. It just so happens to be a minority group that's been extremely successful when it comes to university admissions. So, that's kind of the new angle here to the UNC and Harvard cases. New wrinkle if you will.
Christopher Schmidt: It is. So again, even if those other factors weren't in play, I do think the people who are pushing these affirmative action challenges do you feel like there's, you know, having a new group of plaintiffs, a group of plaintiffs who are not white. A group of plaintiffs who are a part of a racial minority group that has a history of discrimination American society. I think for some of them they think that this is just a fresh angle, a fresh issue to be raised. And I do think it's created more attention because again, this is not just recycling the same arguments again. There's something new here. The fact that they're able to get the oldest, most prestigious university in the country in their crosshairs, that helps in terms of a public relations. People just pay more attention when Harvard's in the news here.
Citizen Analyst: Yeah, it's good point.
Christopher Schmidt: Yeah, and even if the Court wasn't receptive, I do think the lower court challenge with their ability to get discovery in terms of how Harvard’s running its admissions process. Even supporters of the race conscious decision making at Harvard kind of admit that some of the stuff doesn't look great that's come out. So, I think they probably view this as small victories along the way, and now they have their eyes set on a potential great big victory at the top of the legal hierarchy, which is in the Supreme Court.
Citizen Analyst: So okay, so I guess what did you make of oral argument then? And then I guess, what do you see is the most likely outcome in this case?
Christopher Schmidt: It was a marathon oral argument. I will say a lot of the oral argument was very familiar. If you’ve followed these cases from Bakke to Grutter to Fisher, they really do talk in circles. And they talk in circles because the conservative justices, or at least those who are more skeptical of affirmative action, always ask for a definition of diversity, right? Because they want to have a clear definition of diversity they say because without a clear definition of diversity, we do not know how to assess whether in fact you're creating policies that are narrowly tailored to achieve that goal. You need to tell us what your goal is and when you're going to reach it, and then we can apply the assessment. And that's an answer that schools really can't give, and they can't give it because they can't give a concrete definition diversity because the moment they do so they're going to be at risk of having something like a racial quota. And they can't have that. And also, it really does narrow what their ability to have the kind of flexible plans that they say are absolutely essential. So there's a lot of talking in circles, you know the same points being made about you know the defenders of the program saying “we just use race a little bit. It's a plus factor but it's not a determinative factor. We don't use it that much.” And then a critic saying, then you look at the numbers and you want to defend affirmative action because if you don't have it, you know, the numbers are going to drop and therefore, you just told us it does mean a lot.
Citizen Analyst: Yeah. Yeah.
Christopher Schmidt: These are just nothing new. They're the same points again and again. You do have the new angle with the Asian American applicants, which did feature some in the arguments, although to be honest, not as much as I thought it would. I thought that that would actually feature more prominently. The one new component that did seem to feature more is that the defenders of affirmative action on the court, the liberal justices, talked about history a lot more.
Citizen Analyst: Yeah.
Christopher Schmidt: They did talk a lot about the 14th Amendment, and they did so I think for two reasons. One is just looking back to the previous major affirmative action cases, certainly we go back to Bakke and even go back to Grutter, those are decided by a court that did not have the strong professed commitment to originalism as a mode of constitutional interpretation, right? So we just have a court now, in which we have appointees to the Court who self-identify as originalist, we have increasing number of decisions that can get categorized as originalist in their approach. So therefore, I do think the liberals on the court do think that emphasizing an originalist mode of constitutional interpretation, it just has more resonance now, it's more relevant now.
And there's a lot of new research into the 14th Amendment. And a lot of research has emphasized that the 14th Amendment, at its inception, was broadly understood as allowing for some use of race by government. It was not understood to be imposing a color-blind mandate on government policy. So, therefore, the liberals a little bit are sort of using the conservative tools against them, originalism, and they're drawing on a lot of the scholarship which is actually showing that if you actually do a strong originalist analysis of the 14th Amendment, it does not seem to support the conservative position of action, which is that it's unconstitutional because there should be no racial classifications. So that really did feature more than in other arguments, and that's sort of a new spin on what's going on in this debate.
Citizen Analyst: Okay. So that's interesting because when I listened, I actually felt like that wasn't as big of a focal point, and that there were a few efforts by Justice Kagan and I think Justice Jackson to bring it up, but it just never really seemed to get much traction. It was way more talked about in the briefs and stuff like that than it was actually in oral argument. But the conservatives, I feel like Justice Barrett at one point went down the path of sort of talking about it, but she kind of talked herself in circles a little bit too. I wasn't really clear what her point was in that regard, but Justice Kagan definitely wanted to talk about this more. So what since you brought it up what do you think of the originalist arguments? Because this is where I think this case is very interesting, which is that the legal merry-go-round has now come full circle. You now have the liberals arguing that the government can use race, or basically that we can treat people unequally on account of race. And the Conservatives are saying no, no, we can't, everybody needs to be treated equally. Whereas back in the instance of Brown, the opposite was true. So I guess what do you make of one, the legal merry-go-round that seems like we're on now where it seems like the sides have sort of flipped, and then two, what do you think of the originalist arguments that not only was the 14th Amendment meant to be used as a sort of leveling mechanism, but also as a potentially supplemental tool to provide these sort of “plus factors”?
Christopher Schmidt: Yeah, I do think to the first point about the sort of merry-go-round and flip, I don't think the flip is quite as stark as you frame it. There's definitely some of that dynamic going on. So, at the time of Brown, one of the arguments, not the only argument, but one of the arguments of the challenges to school segregation, particularly led by the NAACP and Thurgood Marshall, one of the arguments was government should not classify by race. They did use that language. The US Justice Department, who supported the NAACP, did use some of that language in their briefs and some of their oral arguments. But that was one argument among many. It was not an exclusive argument, in part because they didn't think the Court was going to accept that kind of reading. And it was always understood that when there were criticizing government using race saying, just tell government to stop using race, that this was in the context of the predominant use of race across American history was to oppress. So, you need to understand the context there, but for sure, the primary use of that sort of colorblind ideal was very much in the attack against segregation.
Now today, we have something of a flip in terms of the people who are advocating for a color blind ideal are the ones who are attacking affirmative action. And then the defenders of affirmative action are saying we don't necessarily need to be color blind. So there is something of a sort of a flip in that sense. But, a lot of that has to do with understanding the context of which those arguments are made.
Citizen Analyst: Yeah, no question.
Christopher Schmidt: Right? The place and the context and then trying to figure out what were they actually saying. It's easy to just extract the quotations, which both sides do, and say this is what they said then, and you're saying the opposite now, and therefore you're standing up against them, which again is a little bit too quick. A little bit too easy.
Citizen Analyst: Yeah.
Christopher Schmidt: So yeah, there is something of that flip dynamic. You just always need to place it in context, right? This is what historians do. This is what we do with our scholarship. Yes, there's lots of language out there and you can take that language and do what you want with it. But to truly understand how this language is used, you need to understand that it was used with a particular purpose, with a certain background and certain assumptions attached to that language. That's one way to think about it. In terms…
Citizen Analyst: All right. Yeah, go ahead.
Christopher Schmidt: Yeah. So that's gonna turn to the second part of the question about the originalist basis for this.
Citizen Analyst: I'm sorry. Go ahead.
Christopher Schmidt: So this is how I read the originalist history. The history of the framing, ratification of the 14th Amendment shows utterly clearly that it was not the general understanding, it was not understood to be the meaning of the 14th Amendment that it prevented government from ever using racial classifications, or that it was presumptively unconstitutional to use them.
The same governments, the same people who ratified and supported the 14th Amendment also recognize that there were some instances in which race needed to be used. And in fact, much of the reconstruction policy was race conscious policy and this was passed by, advocated for, by the same people who passed and advocated for the 14th Amendment. So that's pretty clear. So I definitely think that sort of quick 14th Amendment is a color blind principle, and that is somehow based with an original meaning. You know, you can pick out a quote here and there to try and get that, but that historical claim, I think it's very, very weak.
Now, if you then try to flip it and say, the original meaning of 14th Amendment means that government can use race. Right? That is definitely the position that say Justice Jackson was advocating at length or Justice Kagan was suggesting as well. There's some truth to that, just in the bare claim that I just made, which is yes, the frame is in 14th Amendment did recognize her some role for race. But I do you think the best potential qualification for that would be that the primary intention, or really the only intention of the use of race by The Reconstruction Congress. And by governments during the Reconstruction era was, and he's putting aside the racial segregation idea, but the using race for beneficial purposes was in a remedial context. As in these are policies designed to remedy the harms of slavery and racial segregation, of slavery and racial inequality. Okay? So there's not a categorical colorblind principle in the original history. There is an understanding that race can be used, but the race that was used at the time was almost always attached to a particular government purpose, which is remedying wrongs.
Now, let's take up to the present day, right? What do we do with that history? So, for sure, I think, if a conservative critic of affirmative action says, it is a fair originalist reading to say that the 14th Amendment prohibits the use of race by government, that's wrong as an originalist claim. To then say that well, the 14th Amendment makes no limitations on the use of race by government, if they're trying to do it for good purposes, that is not quite clear because the good purposes of the Reconstruction era did fall into a certain category, which is remedying past wrongs. Current affirmative action policy generally is based not on remedying past wrongs, but on achieving a goal of diversity. And at this point, I must confess, I don't find that history gives me a fully clear answer one way or another if you just want to do a straight-up originalist analysis. Because what we have now is a need to do a translation, and the translation is, does the goals that the government was trying to achieve in the reconstruction era that informs your understanding the 14th Amendment, does that correlate or translate to the goals that government and institution is trying to achieve today? And I don't think history gives you the clear answer to that. You know, I have my own preference, which is that I think a goal of diversity of modern American society I think is roughly analogous to the ideals that we're driving the remedial rationale of the Reconstruction Congress. But that's an analytical move, that's not a move just based purely on historical reading of history.
Citizen Analyst: Right. I think that the toughest part about making historical arguments one way or the other here is that at the time of the 14th Amendment’s adoption, we were just trying to get black people on equal footing as white people. There weren't nearly as many situations where we were thinking about going above and beyond, doing whatever we could to make the races equal. as we do now. And I think, I forget which justice it is in the Bakke case, but that's mentioned in the same vein in the Title XI discussion in that case, where there's really no history to read off of that says, and it sounds like maybe you have found some, that maybe this isn't actually case. but at least they said this in respect to Title XI on the Bakke case, that the focus was more again just about getting everybody on level footing. None of the legislators at the time were actually talking about, you know, these plus factors if you will. So that I think to your point makes it also difficult to look at the history and just say that the 14th Amendment actually prohibits the use of plus factors when it comes to race.
Christopher Schmidt: Uh, yeah, I mean I would qualify that and say, I think the current position of defenders of affirmative action is not that we're going beyond equality. The idea is that these policies are ultimately necessary to achieve real equality. So, again, sort of above equality or not above equality. I don't think that's quite the right framework, at least to understand how they're defending their position.
Citizen Analyst: Well, you could rephrase it. Let me rephrase it then. What I guess I meant was that that we need to use unequal means to achieve equal outcomes.
Christopher Schmidt: Yeah, fair enough.
Citizen Analyst: Honey, That's maybe the better way to qualify it. You have to treat, you have to look at things unequally for a time to achieve equality at a later time.
Christopher Schmidt: So, yeah, and I think that particular mindset is perfectly in line with prevailing sentiment during reconstruction, like there's nothing in conflict with that basic claim.
Citizen Analyst: Interesting.
Christopher Schmidt: Now the one point you just brought up, which is a little bit different, which is Title XI, right? If you want to argue about what Title XI means, what it was intended to do, you don't go back to 1868, go back to 1964.
Citizen Analyst: Yeah.
Christopher Schmidt: And you do have situations where members of Congress who defended the 1964 Civil Rights Act would explicitly say things like this does not require quotas. This does not require racial preferences. It's all about equality.
So there is a possibility, and I have no idea if there's justices on the court who want to pick it up, but I think Justice Gorsuch expressed some interest in this during oral arguments in the affirmative action cases. There's a possibility of ruling one way on the Title XI case, which is the Harvard case, and ruling differently in the 14th Amendment case. And that would be basically that when you have a claim based on Title XI, you could have a different standard, and more of a color-blind standard based upon a reading of the 1964 Civil Rights Act that would be different than your reading of the 14th Amendment, which is based on 1868 and if you want to do your historical method, methodology around that.
And then you would do something to court historically has not done, because the whole precedent is that the court’s reading of Title Six is based on its reading of the 14th Amendment. But, you know, they could pull the two apart and say that it's going to be two different standards, and Title XI is going to have a stricter standard than the 14th Amendment.
Citizen Analyst: Alright, perfect segue way then. So I’ll ask you, what do you think happens in the case? And I want to qualify it real quickly just by saying it does feel like, I mean the whole time, as you mentioned earlier, that the case was heard to overturn Grutter. But I will say there were moments where Justices Kavanaugh and Barrett in particular felt like they could potentially be swing voters. Like Justice Alito, for example, he makes his case pretty clear, he's made it clear for some time. I feel like with Barrett and Kavanaugh, maybe there was a little bit more waffling there, and you weren't quite as sure how they were necessarily going to go. I do think you can still make a pretty logical guess as to how they end up, you know, who they end up siding with. But I'm curious, I guess, how do you see this shaking out?
Christopher Schmidt: I don't know. I had the same intuitions, the same sort of feelings, you had when I listened, which is that a number of those are fully set. The three level justices, we know exactly where they're going to be. I think we know exactly where Justices Alito and Thomas are, and I think Gorsuch as well, and Roberts, probably based on his record. Roberts is, on the current court, he can be the swing justice on certain issues, but on this issue, he's been pretty clear and strong.
Citizen Analyst: Yeah.
Christopher Schmidt: So I too was paying a lot of attention to Justices Kavanaugh and Barrett, both of whom I think just based on their personality, as well as the social circles in which they spent a lot of their life, have been surrounded by people who are strong supporters of affirmative action, and have been in educational institutions where they probably recognized a lot of the clear benefits that it brings along with it, right? And then the question is whether that is going to ultimately amount to changing their vote on this issue, or at least affecting their voters issue, and that's where I don't know. I mean I think if affirmative action was to survive beyond this Supreme Court term, it'll certainly come down to those two people. And I think that the only possibility would be some sort of signal that affirmative action is sort of on more tenuous grounds and there's going to be more oversight. But maybe not completely get rid of it, right? Which is kind of what Kennedy was signaling particularly like in the first Fisher decision. Something along those lines.
Citizen Analyst: Yeah.
Christopher Schmidt: But having said that, if I just had to guess, I think Grutter is going to get overruled. I think there's probably five votes for that. I'd be surprised if it wasn't, but you know this Court surprises often.
Citizen Analyst: Yeah. Okay. All right. Last question for you and this just kind of ties everything together. When should we use history and original intent in jurisprudence? Huge question, but you've done so much good work on this, and you clearly have thought about both sides very articulately. You've thought about both sides intently and you’ve articulated both sides of the case wonderfully, so I'm very curious how you think about that big issue, because it does feel like it’s slippery to pick and choose when you want to use it. I know this is what Justice Scalia would always say all the time. Picking and choosing is how you get into trouble and, it just makes for very difficult time being a judge. But, as we've talked about this this time and last time, history is complicated, and you do a great job of talking about this in your paper. So, how do you use history as a scholar and when you think judges should use it in jurisprudence?
Christopher Schmidt: So I'll start off this by the last point: completely different enterprises. The historical study of history is completely different than whatever the court is doing. I think that's one thing when you just start with, right? I do think simply criticizing the Supreme Court's use of history as being bad history, I think is correct if you're measuring it based upon the standards of professional historical inquiry, that's generally correct. But it's also correct because they're not trying to do “good history,” they're not trying to do the kind of historical analysis that historians do, because historians are not engaged in answering present-day questions. We're looking at history to try and understand history, and the general big takeaway is usually that history is a heck a lot different than the present, and therefore making these easy comparisons or translations is either very difficult, or just nonsensical. Like that's generally where historians usually end up.
Courts can't do that. I mean, courts are trying to resolve disputes. So, the only time they look to history is because they think it will give them some guidance on the present. And again, just that starting move there differentiates their enterprise from what historians do. So I think we need to start with that.
Citizen Analyst: Okay.
Christopher Schmidt: Now then having said that, you know, when should courts turn to history? Because history is an incredibly powerful field for expanding understanding for legitimating decisions, for explaining things. It's really powerful, and I think if nothing else, the current sort of commitment by certain people to originalism shows the power of history.
My personal approach is more of a constitutional eclecticism, and this is partly based on a belief that when Justice Scalia and others say we need to be originalist because anything else is just selective. That I think is disingenuous. I think even the most committed originalist, even Justice Thomas, he picks and chooses when he wants to go originalist and when he doesn't. And I think Exhibit A for that is that he has written very powerfully on affirmative action in his past. He does not deal with affirmative action in an originalist context. I mean, maybe he'll try in this new case. But, you know, he writes these really powerful dissents in these cases. But he's tapping into modes that are not historical and originalist. He's talking a lot about broad principles and commitment. So it's always selective.
So my view is that since we, if we can recognize that turning to history is always selective, and that even the most adamant originalists can never be fully originalist, they're always going to have some selection, and even if they're not, even if they're claiming not to select, there's always going be a lot of discretion in the exercise of originalism. I would advocate for transparency, and that means that there's many different modes of doing constitutional analysis. One of them is history, but there are other ones as well. We can look to text. We can look to precedent, we can look to consequences we can look to broader principles. There's all different tools that we can bring to our constitutional analysis. History is one of them. If for certain justices history looms larger than others, that's fine, but what they need to do is then to justify the use of history. I don't think we should use history simply because we say originalism is the only way that we can understand our constitution, because it's not. I think history shows us there's just many different ways in terms of constitution that history in terms of originals analysts is one of many. And if you want to turn to originalist analysis, you need to explain why that's the right way to engage with the particular question. So, it is picking and choosing, but it's picking and choosing with transparency, which is just tell me why this is better.
Citizen Analyst: Yeah. Yeah.
Christopher Schmidt: And don't just dismiss it and say, this is the only way to do it because that's cheating, basically. That's a move which is always going to be a discretionary move, claiming it's not discretionary, and then trying to get to an answer that way. So again, history, originalism is powerful. It's fine. Originalism is nothing new. I mean, it's kind of new in that idea that originalism is a distinctive tool of constitutional analysts that can be used to exclusion of others, that's new. But history as a motive analysis is not new. So therefore, the burden is just on the person applying whatever they want, you know, whether they want to rely on precedent, whether they want to rely on history. And make a compelling case for why this tool fits the problem, or why this tool and alongside other tools needs to be brought to bear.
Citizen Analyst: Fantastic. All right, we will end on that. Professor Schmidt, thanks very much for your time. It was wonderful to speak with you. I really appreciate all your insights and thanks for taking time to speak with me.
Christopher Schmidt: Thank you. It's been a pleasure.
Comments