Eroding the Fourteenth Amendment

"No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." - Fourteenth Amendment to the US Constitution.

In the notorious 1896 decision by the US Supreme Court, Plessy v. Ferguson, the Court ruled that state-mandated disparate treatment by race did not violate the equal protection clause of the Fourteenth Amendment. In a desperate and convoluted effort to accommodate the social views of the time, the Court ignored the plain meaning of the Fourteenth Amendment and decided that Louisiana could pass a law requiring: "equal but separate accommodations for the white, and colored, races" on railway cars. On the lonely side of the 8-1 decision, Justice Marshall Harlan dissented:

"Our Constitution is color-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law. The humblest is the peer of the most powerful. The law regards man as man, and takes no account of his surroundings or of his color when his civil rights as guaranteed by the supreme law of the land are involved."

In Brown v. Topeka Board of Education in 1954, the Court reversed itself, establishing the principle that government decisions could not be raced based. In his brief before the Supreme Court in Brown, the future Justice Thurgood Marshall powerfully argued that "Distinctions by race are so evil, so arbitrary and invidious that a state, bound to defend the equal protection of the laws must not invoke them in any public sphere."

The Supreme Court recently ruled on the application of racial preferences for school admissions. In the case of Gratz v. Bollinger et al. regarding the University of Michigan's undergraduate admissions process, the Court ruled that a rigid point system that gave significant and automatic advantage based on race was unconstitutional. In a second case having to do with University of Michigan Law School admissions, Grutter v. Bollinger et al., the Court permitted racial preferences if the admissions decisions were not rigidly linked to race. This second case allowed for the application of racial distinctions to achieve a critical mass of certain racial populations so long as race was considered in a holistic view of the entire individual. The logic of the two decisions seems to be at war with one another. How can one achieve the so-called advantage of maintaining a critical mass of minority students, without adjusting the weighting in admissions criteria, however applied, to yield a given fraction of minority students?

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