Where have you gone, Justice Kennedy
Our nation turns its lonely eyes to you . . .
What’s that you say, Mrs. Robinson?
Justice K has left and gone away,
Hey hey hey, hey hey hey.
Brown v. Board of Education:
These cases were decided on May 17, 1954. The opinions of that date, declaring the fundamental principle that racial discrimination in public education is unconstitutional, are incorporated herein by reference. All provisions of federal, state, or local law requiring or permitting such discrimination must yield to this principle.
The premise of this article is that the “fundamental principle,” set forth above and adopted over sixty years ago by the United States Supreme Court, has effectively been overruled by two interrelated twenty-first century decisions: (1) Grutter v. Bollinger in 2003, and (2) Fisher v. University of Texas at Austin in 2016. Following the Court’s decision in Grutter, the University of Texas at Austin (“UT”) implemented a race-conscious admissions policy virtually indistinguishable from the one used by the University of Michigan Law School, the latter of which was upheld in Grutter.
The ultimate question posed throughout this article is whether Brown’s fundamental principle, which was silently cast aside by the Court in both Grutter and Fisher II, will be resurrected. This article argues that it should be, and the sooner the better.
First, this article will describe the “compelling interest” recognized in Grutter and Fisher II. Next, this article will analyze the constitutional, statutory, and case law that preceded the outcomes in Grutter and Fisher II. This article will then describe the declining use of the fundamental principle established in Brown and offer concluding remarks about the importance of remaining faithful to Brown’s fundamental principle.