Race, Affirmative Action, and the Law

by Randall Kennedy

  gIn 1868, when the Fourteenth Amendment was ratified, anti-black sentiment was rife, but leavened by egalitarian themes that seeded and reflected the reforms of Reconstruction. As noted previously, Congress enacted legislation during the era of Reconstruction expressly for the benefit of African Americans. By 1896, when Plessy was decided, new variants of Negrophobia had emerged. By then, special congressional solicitude for blacks had become passé. See Rayford Logan, The Betrayal of the Negro: From Rutherford B. Hayes to Woodrow Wilson (1965); Heather Cox Richardson, The Death of Reconstruction: Race, Labor and Politics in the Post–Civil War North 1865–1901 (2001).

  hThat some jurists before Justice Stewart were already using the Harlan declaration against affirmative action is suggested by Justice Brennan’s preemptive refutation the previous year. According to Brennan, “the shorthand phrase ‘our constitution is color blind’ … has never been adopted by this Court as the proper meaning of the Equal Protection Clause.” Regents of the University of California v. Bakke, 438 U.S. 265, 355 (1978) (Brennan, J., concurring and dissenting).

  iRalph Bunche (1903–1997) was an African American educator and diplomat who was awarded the Nobel Peace Prize in 1950. See Brian Urquhart, Ralph Bunche: An American Life (1998).

  jSetting forth its racial policy in 1961, Hugh Hefner’s Playboy Club declared:

  We believe in the acceptance of all persons in all aspects of life on the basis of individual merit and without regard to race, color, or religion. Do we mean that we are “tolerant” and that we believe in economic integration but not social integration? No, we mean we believe in being “colorblind” straight down the line. We believe that any form of racial discrimination is illogical.…

  Cited in Chris Jones, “The House of Hefner,” Esquire, April 2013.

  kActually, in Batson the Court only prohibited prosecutors from using race in peremptory challenges. In a later case, Georgia v. McCollum, 505 U.S. 42 (1992), the Court extended the Batson prohibition to defense attorneys. Interestingly, Justice Clarence Thomas dissented, maintaining that “black criminal defendants will rue the day that this Court ventured down this road that will inexorably lead to the elimination of peremptory strikes.” Id. at 69. It seems odd that Mr. Color Blindness should care about the racial consequences of a legal rule so long as the rule was instituted and implemented with no intent to disadvantage or advantage any group because of race.

  Some jurists believe that the Batson and McCollum responses are inadequate, because lawyers will continue to deploy racially discriminatory peremptory challenges, knowing that the ban against them will be underenforced, as virtually all antidiscrimination measures are underenforced. These critics argue that courts or legislatures should get rid of the peremptory challenge altogether, thus removing it as even a potential tool of racial discrimination. See Batson v. Kentucky, 476 U.S. 79, 107–8 (1986) (Marshall, J., concurring).

  lFor a revealing examination of differing governmental response to disaster see Michele Landis Dauber, The Sympathetic State: Disaster Relief and the Origins of the American Welfare State (2013).

  mThat judges, especially Supreme Court justices, make choices is important to recognize, because of widely believed myths regarding the supposed separateness of “law” and “politics.” The justices maintain that, regardless of their personal views, they must reach a given result because a source above and outside of themselves—“the Constitution”—compels them. They claim, in so many words, that the Constitution makes them do what they do. That portrayal is erroneous, if not false. The justices are not without will. They make policy through disputable judgments that stem from a complex mixture of ingredients including ideology, inclination, and emotion. Norms of various sorts limit them in certain ways, to be sure. But judges and justices have considerably more freedom of action than they typically acknowledge.

  nThis point, often ignored, is noted by Michael Kinsley: “Today’s sanctimonious calls for color-blind equal opportunity for the benefit of whites come primarily from political elements that opposed the principle when it was enshrined, in the nineteen fifties and sixties, to help blacks. (Republicans as moderate as George Bush were against the 1964 Civil Rights Act.) And even today much of the political power of anti-affirmative-action rhetoric is based on its appeal to emotions that are anything but color-blind.” “The Spoils of Victimhood, or the Case Against the Case Against Affirmative Action,” The New Yorker, March 27, 1995. See also Nancy MacLean, Freedom Is Not Enough: The Opening of the American Workplace (2006), 225–64.

  oI define color-blind racism as a manifestation of racial prejudice against a given group notwithstanding denials of bias on the part of the actor in question. For other, typically broader, sometimes excessively expansive, formulations of color-blind racism, see Eduardo Bonilla-Silva, Racism Without Racists: Color-Blind Racism and the Presence of Racial Inequality in the United States (third edition 2010); Michael K. Brown, Martin Carnoy, Elliott Currier and Troy Duster, et. al, eds., Whitewashing Race: The Myth of a Color-Blind Society (2003).

  On the role of racial prejudice or a desire for racial group dominance in the struggle over affirmative action, see Jim Sidanius, Pem Singh, John J. Hetts, “It’s Not Affirmative Action, It’s the Blacks: The Continuing Relevance of Race in American Politics,” in David O. Sears, Jim Sidanius, and Lawrence Bobo, eds., Racialized Politics: The Debate About Racism in America (1999) (“the desire for group dominance is among the important motives underlying opposition to race-specific policies”).

  pThe Report to the Attorney General is scathing in its assessment of Griggs, which it refers to as “an epochal case … by virtue of its contrivance of the disparate impact standard.” The decision, the report declares, “represented a U-turn in civil rights jurisprudence, back to race-conscious decision-making.” Office of Legal Policy, U.S. Department of Justice, Report to the Attorney General, “Redefining Discrimination: ‘Disparate Impact’ and the Institutionalization of Affirmative Action” (November 4, 1987), 14.

  qSee this page.

  rThe impulse to see antidiscrimination as affirmative action was put on striking display during oral argument on February 27, 2013, in Shelby County v. Holder, involving the constitutionality of a key provision of the Voting Rights Act. Justice Antonin Scalia referred to that provision derisively as a “racial entitlement” immune to normal political pressure and thus perhaps warranting judicial invalidation. See Adam Liptak, “Voting Rights Law Draws Skepticism from Justices,” New York Times, February 27, 2013. Fortunately, Scalia’s remark received apt and widespread criticism. See “Antonin Scalia’s Uber-Activism,” Economist, February 28, 2013; Linda Greenhouse, “ ‘A Big New Power,’ ” New York Times Online, March 6, 2013.

  sSee this page.

  tIn Grutter the Court upheld the explicit racial selectivity of the affirmative action program in question, maintaining that its designers had sufficiently considered workable race-neutral alternatives. Grutter v. Bollinger, 539 U.S. 306, 339–340 (2003). (“Narrow tailoring [of racially selective affirmative action] does not require exhaustion of every conceivable race-neutral alternative.”)

  uJustice Thomas’s reference to Douglass is misleading. He omits what Douglass said immediately after the language cited above, statements that make clear that Douglass was referring to discriminations against blacks not in favor of them.

  If you see [a black person] on his way to school, let him alone, don’t disturb him! If you see him going to the dinner table at hotel, let him go! If you see him going to the ballot box, let him along, don’t disturb him! If you see him going into a work-shop, just leave him alone—your interference is doing him positive injury.

  At times, Douglass did make statements consistent with the approach Thomas favors. Douglass once declared, for example, “we utterly repudiate all invidious distinctions, whether in our favor or against us, and only ask for a fair field and no favor.” Douglass also made statements, however, that cut in precisely the opposite direction. “Whenever the b
lack man and the white man [are] equally eligible, equally available, equally qualified for an office,” he declared in 1871, “the black man at this juncture of our affairs should be preferred.” Or consider this remark from 1894: “It is not fair play to start the Negro out in life, from nothing and with nothing, while others start with the advantage of a thousand years behind them.” Clearly Douglass’s thinking on this matter was more complex than Justice Thomas’s attribution suggests. See Waldo E. Martin, Jr., The Mind of Frederick Douglass (1984), 69–72; Eric J. Segall, “Justice Thomas and Affirmative Action: Bad Faith, Confusion, or Both,” Wake Forest Review Online, February 15, 2013.

  v That Justice is a blind goddess

  Is a thing to which we blacks are wise.

  Her bondage hides two festering sores

  That once perhaps were eyes.

  “Langston Hughes, Justice,” in Arnold Rampersad and David Roessel, eds., The Collected Poems of Langston Hughes (1994): 31. See also Bennett Capers, “On Justitia, Race, Gender, and Blindness,” Michigan Journal of Race and Law 12 (2006): 203.

  4.

  The Supreme Court and Affirmative Action

  The Case of Higher Education

  The Supreme Court’s handling of the controversy over affirmative action in higher education mirrors the thinking and sentiments of the nation’s governing elite. Hence, over the past thirty years the Court’s jurisprudence has been marked by ambivalence and confusion, obfuscation and inconsistency. The Court has made a series of ambiguous, ad hoc rulings that reflect the country’s racial anxieties. That this is so ought not generate disappointment, for this outcome was entirely predictable. Seldom does the Court depart far or long from “the mainstream” of elite public opinion. When the mainstream is divided, so, too, is the Court.

  The Supreme Court’s reckoning with racial affirmative action in higher education is a drama with three main acts thus far: (1) Regents of the University of California v. Bakke (1978); (2) Grutter v. Bollinger and Gratz v. Bollinger (2003); and (3) Fisher v. Texas (2012).

  BAKKE

  In 1974, Allan Bakke sued the University of California–Davis School of Medicine. The locus of his complaint was a policy under which Davis had set aside sixteen out of one hundred seats for qualified “disadvantaged” “blacks,” “Asians,” “Indians,” or “Chicanos.” Applicants who were not deemed to be affiliated with those groups were ineligible for consideration for the seats set aside.a Bakke was a white man who applied for a place in the medical school. Twice rejected by the Davis “regular” admissions program, he was turned down by all twelve medical schools to which he applied. These rejections were probably due in part to his age: a Marine Corps veteran in his thirties, Bakke was older than most entering medical students.

  Bakke suspected, and it was subsequently confirmed, that applicants with lesser records than his, in terms of standardized test scores and grades, had been accepted at Davis through its “special” admissions program. Bakke’s science grade point average (GPA) was 3.44; the average GPA of special admittees was 2.62. His Medical College Admission Test (MCAT) score for science was 97; the average MCAT score for science among special admittees was 37. This program was overseen by a separate committee to which were sent the applications of those who wished to be considered “disadvantaged” members of a “minority group.” The special committee relaxed Davis’s typical standards. While regular candidates with grade point averages below 2.5 were summarily rejected, there existed no grade point average cutoff for special applicants. Moreover, the difference in the grade point averages and standardized test scores distinguishing regular admits from special admits was conspicuous. In 1974, the science GPA of regular admits was 3.36; for special admits, 2.42. The average MCAT scores for regular admits were 69 (verbal), 67 (quantitative), and 82 (science); for special admits, 34 (verbal), 30 (quantitative), and 37 (science).

  Prior to the institution of the special program, the number of racial minorities admitted to Davis had been negligible. When the school opened in 1968, with a class of fifty, it had admitted three people of Asian ancestry, but no blacks, Chicanos, or American Indians. The special program was inaugurated in 1970, and in 1971 the entering class was enlarged to one hundred. In 1971, four blacks, nine Chicanos, and two Asian Americans gained admission through the special program; at the same time, one black, no Chicanos, and eight Asian Americans gained admission through the regular program. In 1972, five blacks, six Chicanos, and five Asian Americans gained admission through the special program; no blacks, no Chicanos, and eleven Asian Americans gained admission through the regular program.

  In 1974, the year of Bakke’s second rejection, the sixteen seats in the special admissions program were allocated to six blacks, seven Chicanos, and three Asian Americans. In the regular admissions program, no blacks were accepted, four Chicanos were accepted, and five Asian Americans were accepted. The remaining seats in the entering class in 1974 were presumably occupied by whites.

  Bakke claimed that by favoring minority candidates on a racial basis through its special admissions program, the university had violated, among other things, his right to the equal protection of the laws under the Fourteenth Amendment. A California trial court deemed the medical school’s special program to be a racial quota that violated the Fourteenth Amendment (as well as the state constitution and the federal Civil Rights Act of 1964). The court refused, however, to order Bakke’s admission, concluding that he had failed to show that he would have been admitted but for the existence of the special program. The California Supreme Court agreed with the trial court’s constitutional ruling in an opinion written by Justice Stanley Mosk. He acknowledged the argument with which he would ultimately disagree:

  To achieve the American goal of true equality of opportunity among all races, more is required than merely removing the shackles of past formal restrictions; in the absence of special assistance, minorities will become a “self-perpetuating group at the bottom of our society who have lost the ability and the hope of moving up.”1

  Indeed, Mosk stated that the persuasiveness of that argument “cannot be denied.” He quickly added, however, that there are even “more forceful policy reasons against preferential admissions based on race.”

  The divisive effect of such preferences needs no explication and raises serious doubts whether the advantages obtained by the few preferred are worth the inevitable cost to racial harmony. The overemphasis upon race as a criterion will undoubtedly be counterproductive: rewards and penalties, achievements and failures, are likely to be considered in a racial context through the school years and beyond. Pragmatic problems are certain to arise in identifying groups which should be preferred or in specifying their numbers, and preferences once established will be difficult to alter or abolish; human nature suggests a preferred minority will be no more willing than others to relinquish an advantage once it is bestowed. Perhaps most important, the principle that the Constitution sanctions racial discrimination against a race—any race—is a dangerous concept fraught with potential for misuse in situations which involve far less laudable objectives than are manifest in the present case.2

  With respect to remedy, the California Supreme Court reversed the lower court, ordering that Bakke be admitted to Davis forthwith. It concluded that, insofar as the special admission program was invalid, the university bore the burden of proving that even in the absence of the program Bakke would not have been admitted. Since the university stipulated that it could not make that showing, the Court held that Bakke was entitled to admission.

  The University of California then appealed to the federal Supreme Court, setting up one of the most eagerly anticipated, closely observed disputes in American constitutional history.b 3 The Court’s resolution mirrored the fractured state of public opinion. Four justices—John Paul Stevens, Warren Burger, Potter Stewart, and William H. Rehnquist—agreed with the California Supreme Court’s judgment in favor of Bakke but declined to reach the constitutional issue. That faction asserted
that by favoring certain candidates on a racial basis, the special program violated the Civil Rights Act of 1964. Four justices—William J. Brennan, Byron White, Harry Blackmun, and Thurgood Marshall—maintained that the special program violated neither the Civil Rights Act nor the Fourteenth Amendment.

  With the Court evenly split, four to four, Justice Lewis F. Powell cast the deciding vote, explaining it in an opinion that was joined by no other justice. He agreed with the California Supreme Court that the Davis medical school’s special program violated the federal Constitution and that Bakke was entitled to admission. He disagreed with the California Supreme Court’s belief that federal law forbade any consideration of race in selecting students. Powell concluded that the Civil Rights Act prohibited only what the Fourteenth Amendment proscribed. He then concluded that while the Fourteenth Amendment prohibited most racial selectivity—including the special program at issue—it did not prohibit all racially selective decision making. Powell maintained that a properly designed racial affirmative action program aimed at attaining “diversity” would be constitutional. He then sketched the acceptable sort of program that he had in mind.

  Powell disappointed those who argued that “benign discrimination” favoring racial minorities should be given wide leeway and viewed as something wholly different from the “malign discrimination” that has long menaced racial minorities. At the same time, Powell expressly declared that race could be a factor in a properly designed affirmative action plan. He thus also disappointed those who sought the total exclusion of racial selectivity from college and university admissions as part of a broader effort to bring about immediately a color-blind legal regime.