"The Sisyphean Impact on Houstonian Jurisprudence" 

The Honorable Nathaniel R. Jones 

University of Cincinnati College of Law 2000 Robert S. Marx Lecture

November 15, 2000

Introduction

Dr. W.E.B. DuBois predicted in his 1903 classic, "Souls of Black Folks," penned just six years after the United States Supreme Court constitutionalized racial segregation, that the problem of the 20th Century would be the problem of the color line. Now, as we enter the new millennium, DuBois' famous dictum can be rephrased: the problem of the 21st Century will be the problem of ignoring color.

Whether society chooses to face or ignore the realities of our racial past, the legal system and our courts cannot escape the burden to protect Black Americans imposed by our Constitution if our system is to survive. The pathway toward the achievement of equality under the law was paved by a brilliant lawyer, Charles Hamilton Houston. A word about this remarkable figure, whose importance to our nation has been embarrassingly overlooked, is in order. Houston was a graduate of Amherst College and the Harvard Law School. His keen mind and profound sense of justice moved him to disagree with the way in which the Supreme Court was construing the United States Constitution. He was also deeply troubled by what he saw that construction was doing to increase the oppression and exploitation of Blacks. His scholarship had taught him that what the framers of the Civil War Amendments had in mind for newly freed slaves was at variance with what the Supreme Court said in Plessy v. Ferguson in 1896 which legitimized state­activated racial discrimination. The jurisprudence of Plessy, according to Houston, was a new form of slavery and if it were not vigorously resisted, greater oppression would be the lot of Black people. Thus, he conceived his strategy that would, in a series of cases, challenge the basic proposition of "separate-but-equal" and the construction placed on the 13th, 14th, and 15th Amendments to the Constitution. This became known as the Houstonian Jurisprudence. Houston contended that two of the most fundamental of rights were the right to an education and the right to vote. With regard to education, Houston declared:

Discrimination in education is symbolic of all the more drastic discriminations which Negroes suffer in American life...Equality in education is not enough. There can be no true equality under a segregated system

With respect to voting, Houston argued that the 15th Amendment would have no meaning until free access to the ballot box was available to those for whom it was made part of the Constitution. Complaints emanating from election activities in Florida last week evoke haunting memories of the long struggle carried forward by civil rights lawyers to knock down the myriad of discriminatory schemes and artifices erected in the South to forestall Black voting.

As we step back and view the bumpy road traveled toward racial justice, the strategy inspired by Houston of litigating school segregation cases, white primary/voting rights cases, restrictive covenants, and segregation in interstate travel, one is struck by the extent to which it mirrors the experience of the ancient Greek God, Sisyphus. Sisyphus was condemned to roll a giant rock up a steep hill and each time it neared the top, the rock would roll back down, whereupon, the effort would have to be initiated all over again. The outpouring of persons of color who exercised their right to vote in this year's Presidential election suggests that, with regard to the fundamental right to vote, the rock, may at long last, be making it to the top of the hill. Yet complaints arising in Florida suggest a rolling back of the rock.

With respect to enjoying the fundamental right to a non­segregated education, the picture is much less promising due to a construction being placed on the 14th Amendment that has the effect of putting one foot on the brake, while insisting that victims of historic discrimination move forward by placing the other foot on the accelerator. The application of strict scrutiny and color-blind principles to programs that seek to remedy racial discrimination impedes the march toward racial justice.

An object of this presentation to you students, law teachers, judges, lawyers, and serious-minded citizens is to provide a context for the ongoing responsibility of the law to ensure that the heavy foot of strict scrutiny is removed from the brake in order that racial remedies may be fully employed.

The current Supreme Court's jurisprudence with respect to school desegregation, affirmative action, and reapportionment is now guided by the unspoken premise that the problem of race is largely a problem of the past and that the affirmative use of race to achieve racial justice is inconsistent with the purposes of the 14th Amendment. It reveals a grievous misunderstanding of the nation's racial history and how courts reinforced stereotypes that fed discriminatory patterns of conduct. It is a premise that begs for challenge. If not challenged and reversed, the application of strict scrutiny to race-sensitive programs will choke off the engine that law has provided to power the efforts to correct historic injustices that were the target of Houston's strategies.

Arguments against the remedial use of race are not new.      Less than twenty years after the end of slavery, Justice Bradley wrote that:

When a man has emerged from slavery, and by the aid of beneficent legislation has shaken off the inseparable concomitants of that state, there must be some stage in the progress of his elevation when he takes the rank of a mere citizen, and ceases to be the special favorite of the laws.

Bradley's concern that Blacks not become “special favorites of the laws” mirrored public sentiment but ran counter to the original purpose behind the 14th Amendment. Fifteen years after Bradley fretted about Blacks becoming "the special favorites of the law,” the Supreme Court in Plessy v. Ferguson turned the 14th Amendment's guarantee of equal protection on its head, upholding Louisiana's segregation ordinance, in effect, constitutionalizing racial subordination.

It would take the genius of NAACP chief counsel, Charles Hamilton Houston, whose litigation strategy forced the Supreme Court to confront the realities of segregation, to correct this distortion of the 14th Amendment. The Supreme Court came to adopt, virtually wholesale, Houston's thesis that separate was inherently unequal, and would eventually embrace the affirmative use of race to eliminate the vestiges of segregation "root and branch." America underwent profound change.

Unfortunately, history would repeat itself; through the political exploitation of public sentiment--not much different from that which occurred in the Plessy period - opposition to race-based remedies would reach a fever pitch, overwhelming the command of constitutional principle, causing the rock to roll back down the hill.

This lecture will examine the curtailment of race-based remedies and the rise of color­ blind rhetoric through a historical lens and thereby bring into focus the need to return to first principles--- to paraphrase Justice Blackmun, we must take race into account in order to overcome it; indeed, we must confront the legacy of slavery in order to redeem the promise of equality and finish the unfinished business of achieving racial justice.

Reconstruction: The Affirmative Use of Race as a Remedial Tool

Many of today's critics of judicial enforcement of race-conscious remedies are quick to assume that the benign – in contradistinction to invidious use of race by the government – contravenes the purpose of the 14th Amendment. Such assertions are clearly refuted by the legislative history of the 14th Amendment.

Reconstruction was the first period in this nation's history when our governmental institutions positively addressed the problem of race. From the closing days of the Civil War until the end of Reconstruction five years later, Congress adopted a series of social welfare programs whose benefits were expressly for the benefit of Blacks over the objections that such racially exclusive measures were unfair to whites.           

Importantly, the race­ conscious Reconstruction programs were enacted by the same Congress that proposed the 14th Amendment. The first major Reconstruction legislation to aid Blacks called for the creation of the Bureau of Freedman Affairs to provide special assistance and protection of Blacks. The Bureau was charged with overseeing the enforcement of all laws 'in any way concerning the freedman' and aiding freedmen in enforcing their leases and labor contracts.

Legislators put forth several arguments in opposition to the bill that echo the arguments that are used to attack affirmative action today. A member of the House Select Committee on Emancipation protested that under the bill taxes paid by whites would assist only Blacks, stating "[w]hy [should] the freedmen of African descent become these marked objects of special legislation, to the detriment of unfortunate whites ... "

In July 1866, the 39th Congress, the same Congress that had just framed the 14th Amendment, passed a statute appropriating money for the relief of "destitute colored women and children." In addition, before, during and after ratification of the 14th Amendment, Congress made special appropriations for awarding bounty and prize money to "colored" soldiers and sailors of the Union Army. The adoption of these race-conscious remedies was entirely consistent with the purpose of the 14th Amendment; indeed, Congressmen Thaddeus Stevens, introducing the 14th Amendment in the House, characterized its basic purpose as "the amelioration of the condition of the freedmen."

Retrenchment: The Nation Grows Weary of Confronting the Legacy of Slavery

The Reconstruction era was a period of substantial progress for African-Americans. Schools that provided educational opportunities for Black students were established; Blacks were elected to the United States House of Representatives and dozens of state and local governments. The rock was proceeding up the hill.

This progress, however, was cut short by the Hayes-Tilden Compromise of 1877 which led, in an act of sectional reconciliation, to the withdrawal of federal troops from the South, and represented the beginning of the end of Reconstruction. The argument was made that the nation was clearly weary of grappling with Reconstruction and the problem of race, and the consequences for Blacks could not have been worse. By the end of the 19th century, with the removal of federal troops, there was a re­emergence of states' rights that threatened to render the promise of the 15th Amendment hollow, as several southern states adopted various measures such as the poll tax, literacy tests and grandfather clauses in order to disenfranchise Blacks.           

The starkest symbol of the rock rolling back down the hill was the Supreme Court's 1996 decision in Plessy v. Ferguson. When the Supreme Court decided Plessy, eight justices officially sealed the fate of whatever hope could be drawn from the statutory and constitutional protections that emerged out of the Civil War. The decision, which upheld a Louisiana segregation ordinance, authorized states to treat Blacks as second-class citizens; in form and effect, constitutionalizing racial subordination. Justice John Marshall Harlan, the lone dissenter, would make a prediction which would prove to be self-fulfilling. He warned his colleagues and the entire nation that the Plessy decision:

will, in time prove to be quite as pernicious as the decision made by this tribunal in the Dred Scott case ... [for] ... in view of the Constitution, in the eye of the law, there is in this country no superior, dominant ruling class of citizens. There is no caste here. Our Constitution is color-blind ....

Modern day critics of race-based remedies are quick to invoke Harlan, but fail to appreciate that his colleagues rejected his view. Clearly, Harlan's statement that 'there is no caste here' and the "Constitution is color-blind" reflected aspiration and not reality. The Plessy decision, thereupon, served as a conduit through which poured the venom of racism into every aspect of American life. It infected our social and legal institutions and deeply stained the fabric of American thought. A color blind society we were not.

Paving the Road to Brown: Forcing a Confrontation/Correcting a Distortion

The effort, led by Charles Hamilton Houston, to dismantle the legal foundation of Plessy is one of the remarkable sagas of American history. As Dean of the Howard Law School and Special Counsel to the NAACP, he was undoubtedly the foremost constitutional innovator of his day with a profound understanding of the 14th Amendment. He developed a small cadre of brilliant lawyers to lead the fight. Assisted by his protege Justice Thurgood Marshall, Houston conceived a strategy to attack the basic rationale for legalized separate racial treatment, and force the Supreme Court to confront the evils of segregation. It is through the prism of Houston's litigation strategy with particular emphasis on the denial of educational opportunities to descendants of slaves that I will focus.

The first round of court battles concentrated on the "equal" part of the separate but equal doctrine. Focusing on the graduate and professional school level, where Blacks of unquestioned achievement and ability were denied opportunities to pursue advanced study, the NAACP convinced the Maryland Court of Appeals that providing scholarships for Black law students to study out of state did not meet the constitutional standards for equality in legal education.    

In McLaurin v. Oklahoma State of Regents for Higher Education, the Supreme Court recognized that prohibiting the voluntary "intellectual commingling of students" among different races was a violation of the 14th Amendment.

In Sweatt v. Painter, the Court recognized that because the separate facilities lacked intangible aspects of equal education, such as alumni contacts, community standing, tradition and prestige, they could not be constitutionally maintained. Once it was recognized that the consequences and impact of the badge of inferiority imposed by official segregation could not be simply measured by tangible criteria, it was simply a matter of time before state-sanctioned segregation and the doctrine of separate but equal would be exposed as the cruel and cynical hoax it truly represented. This provided a decided lift up the hill toward equal justice.

Houston's litigation strategy led eventually--58 years after Plessy-­ to the unanimous 1954 decision of Brown v. Board of Education, which held that separate was inherently unequal and violated the 14th Amendment. In Brown, the Supreme Court adopted Houston's thesis that segregation itself, and not merely unequal facilities, deprived minority children of equal educational opportunities. Brown confronted the legacy of slavery head on and proved to be the catalyst for a Second Reconstruction--laying the groundwork for the end of Jim Crow in all aspects of American life. However, like the First Reconstruction, constitutional principle would be pitted against public opposition, and the fate of Blacks would hang in the balance.

The Second Reconstruction: The Affirmative Use of Race as a Remedial Tool

In Brown II, the Supreme Court addressed the timetable for the implementation of the Brown I principle. Sensitive to the need for the nation, and especially the Southern states to adjust to change, the Brown II Court held that segregation in public education must be eliminated with "all deliberate speed." While the Supreme Court had no doubt anticipated some degree of resistance, it probably did not foresee the outright defiance of its constitutional mandate or the violence with which its decree would meet. The conduct of the Governor of Arkansas, Orval Faubus, and other state officials who defied a federal court order to admit nine Black children to Central High School in Little Rock, precipitated a grave constitutional crisis. A rare special session of the United States Supreme Court was convened in 1957 and in Cooper v. Aaron, the Court reaffirmed the federal constitutional supremacy principle of Marbury v. Madison, holding that the "the federal judiciary is supreme in the exposition of the law of the Constitution" and that Brown was the supreme law of the land regardless of state laws to the contrary.

This reaffirmation profoundly shaped future events. The opponents of Brown were eventually forced to supplement their strategies of violent resistance with various legal fictions. Among the most ingenious tactics were the so-called voluntary transfer plans and freedom of choice options. These plans, it was thought, would bring the states and resentful school officials into a degree of technical compliance, even if they did not achieve meaningful results. Such plans threatened to render the constitutional principle articulated in Brown a loud bark with no bite. In fact, the intransigence of local school officials contributed to the glacial pace of desegregative efforts in the decade after Brown.

In the wake of such minimal progress, the Supreme Court in 1968 revisited its "with all deliberate speed" mandate in Green v. Kent County. In Green, the Court reaffirmed clearly and unan1biguously the principles of Brown I, and set forth a redefined standard against which all desegregation plans would be measured. Under this standard, once it has been shown that a dual system was in existence by force of state action, public officials have an "affirmative duty" to take all necessary steps to dismantle that dual system "root and branch." The Court also stated that [t]he burden on the school board is to come forward with a plan that promises realistically to work now until is clear that state­ imposed segregation has been completely destroyed." Under this standard, the freedom of choice plan offered by the school board was plainly inadequate.

Two years later in Swann v. Mecklenberg, the Supreme Court articulated the scope of its authority to fashion remedies, stating: "[o]nce a right and a violation have been shown, the scope of a district court's equitable powers to remedy past wrongs is broad, for breadth and flexibility are inherent in equitable remedies." Furthermore, in North Carolina State Board of Education v. Swann, the Supreme Court struck down North Carolina's anti-busing law, which had forbidden any assignment of school children by race. Justice Burger, writing for the Court, described race-conscious student assignments as an essential tool to fulfill "the promise of Brown" and rebuffed North Carolina's contention    that the Constitution required  "color-blind" student assignments. Thus, in light of the lack of progress that had been made toward fulfilling the promise of Brown, the Supreme Court in Green and Swann stood firmly on the principle that the equitable powers of the court are broad, and that it was necessary to take race into account in uprooting discriminatory vestiges.

Retrenchment: Busing and Quotas-Buzzwords Distorting Constitutional Principles

Despite the clear constitutional mandate laid down in Green and Swann, public opposition, sustained in no small measure by political opportunists, threatened to undermine the promise of Brown. The widespread assumption that constitutional principles are subject to the vagaries of public whim was fueled by the change in administrations in 1968 from Democratic to Republican, which did nothing to advance of the cause of desegregation in public schools. Instead, desegregation efforts were deliberately impeded. President Nixon, driven by a "Southern strategy" in an attempt to coopt Alabama Governor George Wallace's appeal to southern whites, made repeated attacks on the crucial desegregation    remedy of transportation or "busing."

In a nationally televised address, on March 16, 1972, Nixon announced the introduction of legislation to "call an immediate halt to all new busing orders by Federal courts ...." Nixon fanned the flames against the constitutional principles laid down by the Supreme Court by making derisive references to "forced busing." It was out of this public climate that the Supreme Court in Milliken v. Bradley curtailed the scope of the court's power to remedy the post-Brownmanifestation of segregation.        This presents a classic example of the Sisyphean phenomenon- pushing the rock up the hill only to have it roll back.

We need to know the factual backdrop to the Court1s decision in Milliken v. Bradley to understand why it was a rollback. In 1970, shortly after the Governor signed into law Michigan Act 48, which was an act of interposition and nullification similar to George Wallace standing in the school house doors and Orval Faubus defying a federal court order in Little Rock. The Detroit Branch of the NAACP filed a suit to enjoin the enforcement of the law and to compel a re-activation of a suspended desegregation plan. The Sixth Circuit struck down Act as unconstitutional because it sought to interfere with school board efforts to comply with Brown, and remanded the case to district court for trial on the issue of segregation.

Ultimately, the case went to trial that lasted 41 days, after which the judge found for the plaintiffs. The judge, Stephen Roth held:

Pupil racial segregation . . . and the residential racial segregation resulting primarily from public and private racial discrimination are interdependent phenomenon. The affirmative obligation of the defendant board has been and is to adopt pupil assignment practices and policies that compensate for and avoid incorporation into the school system the effects of residential racial segregation. The Board's building upon housing segregation violates the 14th Amendment.

Judge Roth's decision was hailed as a pivotal development in the battle against northern urban school segregation, as it indicated a possible formula for breaking the back of northern school segregation. After the decision was affirmed by the Sixth Circuit Court of Appeals, the case went to the United States Supreme Court. The district court and the Sixth Circuit decisions were upheld by the Supreme Court, 5-4, with respect to the Detroit-only violation. However, the portion of the holding dealing with the propriety of a metropolitan-wide remedy was reversed.

The Supreme Court rejected the vast amount of evidence in the record which demonstrated that the State of Michigan and the Detroit school board had deliberately created and perpetuated public school segregation on a massive scale. Justice Potter Stewart, who provided the crucial fifth vote, outlined the circumstances which would have led him to an approval of an interdistrict remedy. Incredibly, despite voluminous evidence to the contrary, Justice Stewart, characterized the segregation of Black children within Detroit as caused by "unknown and perhaps unknowable factors ... " In any case, one would have thought that the clear constitutional principle articulated in Swann would have allowed the remedial powers of the Federal court to be invoked where proof of a constitutional violation by or in any segment of a single educational system existed. I find it futile to try and make sense of the majority holding without taking into account that the Court departed from precedent and avoided logic and reason. To limit the remedial power of the district court, after it had already found violations of the Constitution, was as a dissenting Justice Marshall complained, simply to elevate political concerns over those of the Constitution. He wrote:

[t]oday's holding, I fear, is more of a reflection of a perceived public mood that we have gone far enough in enforcing the Constitution's guarantee of equal justice than it is the product of neutral principles of law.

The "public mood" that drove this decision collides with constitutional principles relating to the limitation on majorities to override constitutional rights. That principle had earlier been eloquently stated in a slightly different context by Justice Robert Jackson in West Virginia v. Barnette

the very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond reach of majorities and officials and to establish them as legal principles to be applied by the courts.

As this case demonstrates, the surest means of ensuring that the Sisyphean rock will continue to roll down the hill is to subject civil rights remedies to the whim of public opinion and the vicissitudes of political controversy. The public majorities invasion of those "certain subjects" withdrawn from "political controversy" exposes minorities to majoritarian biases and frustrates the extension of equal protection guaranteed by the 14th Amendment.

Many commentators at the time failed to appreciate that the court's curtailment of remedies in the area of desegregation would begin a long slide down the path of curtailing remedies in other important areas. The venom infecting public discourse on transportation or "busing" would soon spill over into such affirmative action matters as goals and time tables, often mischievously labeled as quotas, and voting rights, including legislative reapportionment, which illustrates the seamlessness of racial remedies. As civil rights advocates, strenuously argued at the time, backing away from the strong federal enforcement of the constitutional mandate of Brown, would ultimately threaten the gains that had been achieved in other areas. A review of the current and evolving Supreme Court precedents bear out their concerns.

Though I would ordinarily conclude my case with this discussion on education, the seamlessness of racial remedies requires that I go further. This seamless web of civil rights racial remedies has its roots in Brown, for it was in the wake of Brown that we saw the construction of a framework of remedial statutes, executive orders, and federal administrative regulations that would affirmatively be used as tools for remedying racial and other forms of discrimination. Affirmative group­based remedies evolved in the context of mid-sixties when President Johnson, following the Selma March, pleaded for the transfer of the struggle from "the streets to the courtroom,” and in the wake of the Kerner Commission's warning that America was drifting away from the ideal of a single society. Affirmative action notions took root with the Philadelphia Plan, whose purpose was to increase the hiring and use of Blacks and other minorities in federal or federally assisted construction in the greater Philadelphia area. The Plan was a response to widespread discrimination by contractors and labor unions in the five-county area surrounding Philadelphia. The Department of Justice during the Nixon Administration filed a number of employment discrimination suits under Title VII which sought and obtained remedies that included affirmative hiring plans. When Congress amended Title VII in 1972 to included public employees, it expressed its approval of the courts' use of goals and timetables in certain cases to remedy employment discrimination. The public policy of equal opportunity was expected to drive voluntary initiatives to affirmatively eliminate racial disparities without awaiting litigation to prove the obvious.

Arising from this milieu was the Supreme Court's decision in Regents of California v. Bakke. The Bakke case gave the Supreme Court its first opportunity to take an authoritative stance on the concept of affirmative action. The Court, in a 5-4 decision, neither endorsed nor rejected the concept of affirmative action. A four justice plurality opinion authored by Justice Stevens argued that Title VI's prohibition against the discrimination under any program receiving federal financial assistance on account race of was clearly violated by UC Davis' program of explicit quotas. While striking down explicit quotas, the essential holding by the plurality was that race could be used as a plus factor in the evaluation process. Even so, Justice Marshall's words bear repeating:

I fear that we have come full circle. After the Civil War, our Government started several "affirmative action" programs. This Court in the Civil Rights Cases and Plessy v. Ferguson destroyed the movement toward complete equality. For almost a century no action was taken, and this nonaction was with the tacit approval of the courts. Then we had Brown v. Board of Education and the Civil Rights Acts of Congress, followed by numerous affirmative action programs. Now, we have this Court again stepping in, this time to stop affirmative action programs of the type used by the University of California.

The national commitment to achieving equality through the use of racially sensitive remedies was slowed by the Bakkeand was even more starkly impeded in the Court's decision Richmond v. Croson, where the Supreme Court for the first time held that strict scrutiny applies to the race-conscious efforts of state and local governments to remedy a history of discrimination through affirmative action.

The Court found that even though adopted for "'benign” or “remedial” purposes, set-aside programs nonetheless constitute suspect racial classifications, triggering strict constitutional scrutiny. The Court acknowledged that "the sorry history of both private and public discrimination in this country had contributed to a lack of opportunities for Black entrepreneurs, [yet] this observation , standing alone, cannot justify a rigid racial quota in the award of public contracts in Richmond, Virginia."

Again, Justice Marshall, in dissent, noted that "[a] profound difference separates governmental actions that themselves are racist and governmental actions that seek to remedy the effects of prior racism … The fact is that Congress' concern in passing the Reconstruction Amendments ... was that States would not adequately respond to racial violence or discrimination against newly freed slaves. To interpret any aspect of these Amendments as proscribing state remedial responses to these very problems turns the Amendments on their heads."

Underlying the growing skepticism about the use of race-sensitive remedies was the idea that racism was largely an evil of the past, and that the new evil was the remedy itself. The Court's decision in Adarand Constructors, Inc. v. Penaamplifies that premise. In Adarand, the Court extended strict scrutiny review even to congressionally-mandated, race-based remedies. Importantly, Justices Thomas and Scalia argued that affirmative action should be completely abandoned. Justice Thomas who succeeded Justice Marshall on the Court, gratuitously opined that "I believe        that there is a moral [and] constitutional equivalence" between laws designed to subjugate a race and those that distribute benefits on the basis of race in order to foster some current notion of equality ... [a]s far as the Constitution is concerned, it is irrelevant whether a government's classifications are drawn by those who wish to oppress a race or by those who have a sincere desire to help those thought to be disadvantaged."          Collapsing the use of race in a remedial context with the invidious use of race represents the nullification of the intent of the 14th Amendment.

Ironically, it was Charles Hamilton Houston's belief that the 14th Amendment had been nullified that led him to develop a strategy for correcting Plessy's perverse construction of the 14th Amendment. Such a strategy is sorely needed today to correct the harm that the application of strict scrutiny has wrought on efforts to remedy racial discrimination.

The Supreme Court's unraveling of the seamless web of remedies, with the school cases and affirmative action, has also affected the area of voting rights. In Shaw v. Reno, the United States Supreme Court relied upon the Equal Protection Clause of the 14th Amendment to impose limits on race-conscious districting. In Shaw, the Court held that five white North Carolina voters had stated a claim under the Equal Protection Clause in alleging that the state's congressional redistricting plan contained districts shaped so dramatically irregular that they could only be viewed as having been drawn along racial lines.

In a series of subsequent cases, the Court developed an elaborate framework for the adjudication of these Shaw claims. Under that framework, the plaintiff's initial burden is to show, using direct or circumstantial evidence or a combination of both, that the state used race as the "predominant factor" in the design of the challenged district, "subordinat[ing] traditional race-neutral districting principles ... to racial considerations1.1 In its haste to show its hostility toward race-conscious measures, the Court eschewed traditional equal protection doctrine which requires a classification to single out an identifiable class of persons for special benefits or burdens. Instead, the premise of the Court's decision in Shaw was that the Equal Protection Clause, confers upon every person a substantive constitutional right not to be classified by the state on the basis of their race. However, this principle does not bar the use of race when required to correct harm caused by racial discrimination. This is so in light of the fact that the framers and ratifiers of the 14th Amendment enacted race-conscious remedial legislation with the understanding that such legislation was consistent with the equal protection clause. Since our racial past is real, and the consequences of ignoring it carries a social cost, we will pay a painful price if the courts persist in elevating color-blindness at the expense of racial justice.

Disallowing the use of race by the courts, executive action, and private initiative frustrates the elimination of badges of servitude and is fueling the pressure for reparations. The official recognition and monies paid to victims of internment and the Holocaust has paved the way to assessing the prospects for extending reparations to descendants of slaves. In fact, in each session of Congress since 1989, Representative John Conyers has introduced a bill to create a commission to study reparations for slavery and segregation. The bill has not made legislative inroads, however, the publication of Randall Robinson's book, The Debt: What America Owes to Blacks, promises to keep talk of reparations a prominent feature of the public discourse on race. In addition, a group of civil rights and class action lawyers is preparing a lawsuit seeking reparations for American Blacks. The project called the Reparations Assessment Group, confirmed by Harvard law professor Charles Ogletree may well be the most serious effort yet to get American Blacks compensated for 244 years of legalized slavery. The fight over reparations will not be pretty.

Congressman Hyde, an opponent of reparations, stated that "I never owned a slave. I never oppressed anybody. I don't know that I should have to pay for someone who did."     Robert Fullinwider, author of The Case for Reparations, responds by noting that the "chief wrongs done to African Americans were not simply the sum of many individual oppressions added together, but were the corporate acts of a nation." Randall Robinson adds that "[u]ntil America's ruling class accepts the fact that the book never closes on massive unredressed social wrongs, America can have no future as one people." Demand for reparations for slavery will no doubt continue as long as the vestiges of slavery that Houstonian jurisprudence sought to remove remain. And they will remain so long as remedies fashioned to eliminate them are blocked by the principal of strict scrutiny. Both Reconstruction and the decision in Brown gave rise to race-conscious remedial measures that were effectively addressing the legacy of slavery. However, due to a woefully inadequate sense of history by the populace, exposing them to the easy manipulation of public opinion on issues of race, the rock has been rolling backwards.

Recovering the Affirmative Use of Race as a Remedial Tool

It was the Houstonian approach, refined by Thurgood Marshall, that constructed a constitutional 'framework for redressing the historic racial wrongs visited upon a segment of Americans. That approach is jeopardized by a new jurisprudence based on a faulty premise that whatever race problems that exist today are so attenuated from slavery and Plessy. as to be entitled to no constitutional protection, and that any attempt to do so must pass strict scrutiny.

The challenge that we face is to recover in our nation's spirit, the appreciation of law as a vehicle for redressing past wrongs, and ameliorating conditions that continue to deny Blacks equal opportunities. As Justice Thurgood Marshall said:

I wish I could say that racism and prejudice were only distant memories ... and that liberty and equality were just around the bend. I wish I could say that American has come to appreciate diversity and see and accept similarity. But as I look around, I see not a nation of unity but of division-Afro and white, indigenous, and immigrant, rich and poor, educated and illiterate... [T]here is a price to be paid for division and isolation.

The application of strict scrutiny to race-sensitive remedial programs has had a significant impact on Houstonian jurisprudence, impeding the path toward racial justice. The only way to reach true justice at the top of the hill is for the courts to reject the sacrosanctness of color-blind jurisprudence and to once again vigorously embrace the affirmative use of race in shaping remedies for the past racial wrongs that have so terribly stained our institutions.