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The discourse in America about segregation is dishonest. On the surface, we pretend that the values of Brown v. Board of Education have been met, although most of us know in our hearts that the current system of public education betrays those values. In this essay, I reflect on how residual, defacto segregation and the stratified architecture of opportunity in our nation contribute to the achievement gap that has made race-based affirmative action necessary. Despite the Supreme Court's compromise decision in Fisher v. Texas, affirmative action is on life support. As this essay goes to print, the Supreme Court has heard argument, but has not issued a decision in the case of Schuette v. Coalition to Defend Affirmative Action, which challenges the ability of Michigan voters to ban affirmative action. At oral argument, conservative justices seemed inclined to uphold the ban. Conservative opponents will continue to attack the policy in courts and through politics however the Court rules: there will always be another Abigail Fisher. Eight states have banned affirmative action programs: six through ballot measures (California (1996), Washington (1998), Michigan (2006), Nebraska (2008), Arizona (2010), and Oklahoma (2012)); one by executive order (Florida (1999)); and another by legislative act (New Hampshire (2011)).

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47 U. Mich. J.L. Reform 935-965

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Law and Race Commons