What Once Was

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Her logic is rooted in the disheartening facts that are evident to anyone willing to take a hard look: in the years since Brown , segregation in our public school system, and concomitant disparities in educational opportunities, have not only persisted but have also grown. Grutter , U. This date was calculated to place Grutter at the expected halfway mark between Bakke and the elimination of consideration of race in its entirety.

Instead, Justice Ginsburg stressed that measures implemented to bring about an integrated society must necessarily be left in place until equal treatment and opportunity are achieved in fact. This much, though, seems clear: It is very unlikely that the Court would have twice chosen to hear a case Fisher where the defendant is a state university system with an admissions policy that, because of extreme resegregation at the secondary school level, primarily relies on a neutral criterion finishing at the top of your high school class to achieve diversity.

And while the search for narrowly tailored means and race-neutral alternatives could be expected to be among the issues at stake in a given litigation, those concerns would not have come to define the entire legal playing field in case after case after case. Schuette v. The Supreme Court is at its best when it articulates and explains the fundamental values of the nation as embedded in the Constitution, and the Bill of Rights in particular.

The path suggested by Justices Ginsburg and Sotomayor reaches for this aspirational role in a way that controlling case law on affirmative action does not. Great decisions, such as Brown , elevate a specific controversy into a framework that explains the larger ideals we hold dear as a country. The significance of the Court raising its sights to focus on larger societal interests and enduring values is nowhere more evident than in the evolution of the First Amendment over the course of the last century.

What Once Was

Constricted holdings in Abrams v. To reject Justices Sotomayor and Ginsburg is to contribute to the forces of forgetfulness and amnesia — including disregard for the very real successes achieved through affirmative action thus far — which taken together already function to shield us from the underlying reality of segregation and discrimination that continue to exist. And therein lies what may be the decisive shortcoming of an approach that understands the value of racial diversity only in terms of its educational benefits, without acknowledging the persistent reality of race in America.

Such an approach leads, on balance, to what we have today: a greater sense of injustice that comes from the feeling that injustice is being ignored or slighted or denied. For the moment, at least, the prevailing culture favors individual achievement over collective advancement; it does not help matters that government action is rarely celebrated and market outcomes always are.

In such an environment, college admission is seen to be a zero-sum game; preferential treatment is equated with injustice; and thus there is an unsurprising yearning for achieving the goal of diversity by focusing only on family income. Richard D. Kahlenberg , The Century Found. Kahlenberg, The Century Found. The reality is different.

Times Feb. Also uncertain is how the current round of Fisher will be resolved by the Supreme Court. In light of that uncertainty, I want to conclude with a personal observation. I believe deeply that the highest levels of excellence in post-secondary scholarship, teaching, and research exist only in a diverse university or college community. I was proud to lead the University of Michigan in its litigation resulting in a landmark Supreme Court decision recognizing the state interest in promoting these specific educational benefits.

Yet for many years now, Supreme Court jurisprudence has conspired to turn our attention away from our history — and erode our shared understanding — with decisions that assume the existence of the very colorblind society that we have yet to achieve.

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I want to review how we arrived at this place and to begin a discussion about the consequences. Readers of this Forum well know that until Brown was decided on May 17, , Plessy v. Federal courts across the nation then set about doing the work of enforcing desegregation measures. But courts went well beyond striking down race-based school assignment policies: they supported voluntary government efforts affirmatively designed to integrate the nation. See Reva B. Then, on June 28, , in Regents of the University of California v.

Justice Powell, announcing the judgment of the Court, rejected U. The impulse to push our history and its continuing consequences into a more distant past — and advert to reasoning divorced from present reality — runs deep in our jurisprudence and across our society.


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It is almost always expressed affirmatively, passionately, and in high-minded language. Parents Involved in Cmty. Seattle Sch. The school districts in these cases have not carried the heavy burden of demonstrating that we should allow this once again — even for very different reasons. The symmetry championed by the Chief Justice has a legalistic resonance, but the consistency demanded by the Court is otherwise asked to bear too heavy a weight.

Why is the genius of our Constitution inadequate for recognizing the difference between Topeka and Seattle? And why must we look for that answer through an ahistorical lens? Bakke , U. Framed as group-based racial preferences disconnected from any recognition of the deep origins of structural racism in this country that endure through our policies and practices, affirmative action has been increasingly rejected not only by the courts but also by state referenda, legislation, and executive orders.


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  • The Equal Protection Clause has become a sword in the service of maintaining the status quo of racial stratification and is no longer a shield protecting the less powerful and the historically oppressed. And the resentment and outrage that Justice Powell sought to avoid engendering has instead festered and grown within those disenfranchised groups.

    All of these factors are reflected in the persistent claim that we live today in a post-racial society, notwithstanding the familiar scenes from our city streets and college campuses that say otherwise. Were the nation governed by constitutional rulings that continued to recognize as worthwhile the goal of an integrated society identified in Brown , it is fair to speculate that misguided assertions of a post-racial America would find much less traction.

    The second hearing of Fisher v. It is a moment to broadly consider the shape of an alternative jurisprudence neither subservient to popular views nor cabined by damaging precedent — an exercise that need not rely solely on imagination. We can look to a line of concurring and dissenting opinions that run from Justice Marshall in Bakke to Justice Sotomayor in Schuette v.

    Indeed, it is Justice Ginsburg, in her opinions in the companion cases Gratz v. With those two developments, research sputtered back to life. Scientists then began to grapple with some fundamental issues. For starters, how could researchers turn stem cells into mature cell types?

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    Was there a chemical or genetic signal that induced stem cells to create the complex structures of the body and brain? And which molecules and mechanisms were required to integrate stem cells into an injured brain? Figuring out the answers proved daunting. Over the past decade, however, scientists have begun to decipher how neurogenesis occurs and the anatomical location where neural stem cells are born and maintained inside the brain. Macdonald has retinitis pigmentosa, a genetic disorder that causes a gradual decay of the photoreceptors — the rods and cones — in the retina.

    As the rods and cones die off, people with the disorder experience night blindness and tunnel vision, and eventually become legally or totally blind. A gracious blonde with a dazzling smile, Macdonald started losing her sight in her late 20s and was legally blind by her 40s. In June , she became the first patient in North America to receive an eye injection of about half a million retinal progenitor cells. The aim was to repair and possibly replace damaged light-sensing cells. In the time since her treatment, she has noticed a decided change. She can discern shapes and the faint hue of colors, enabling her to recognize cars parked across the street and navigate her cozy art deco-style apartment with surprising nonchalance.

    This year, Macdonald received another stem cell shot, this time in her right eye, and she is hopeful her vision will continue to improve. While in graduate school in the mids, he transplanted retinal tissue into a newborn rat with impaired vision. After the rat grew to adulthood, he shined a light over the graft site. But it was another three decades before Klassen — who has used retinal progenitor cells to restore vision in mice, cats, dogs and pigs — could conduct human trials involving retinitis pigmentosa.

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    While no one in the study has fully regained sight, quite a few of them, like Macdonald, have experienced improvements in their visual acuity. Relief for Stroke Patients In recent years, stem cell research has made such dramatic leaps that what once seemed like science fiction is becoming reality.

    The trial, which began in and spanned 13 years, involved 24 people with a severe form of MS. During that period, the positive results endured.