Supreme Court decisions matter. But they are seldom, if ever, conclusive regarding deeply felt and sharply contested disputes. Decisions are not self-enforcing. They require interpretation and follow-up. They can inflect a conversation but not end it. No matter what the Court decides in Fisher, the affirmative action controversy will continue to reverberate.
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aThe goals and criteria set forth initially by the Davis authorities are notably confusing. In 1973, applicants to Davis were told the following about the special program. “A special subcommittee of the Admissions Committee, made up of faculty and medical students from minority groups, evaluates applications from economically and/or educationally disadvantaged backgrounds. The applicant may designate on the application form that he or she requests such an evaluation. Ethnic minorities are not categorically considered under the [special program] unless they are from disadvantaged backgrounds.” Regents of the University of California v. Bakke, 438 U.S. 265, 272 (1978). One plausible interpretation was that the special program was open to all, regardless of race, but that racial minorities would be given a preference within it. Several whites did indeed apply via the special program. None obtained admission, and subsequently courts found that, in fact, the special program considered only racial-minority applicants. Ibid. at 276, 289. (“The special admissions program is undeniably a classification based on race and ethnic background.…[W]hite applicants could compete only for 84 seats … rather than the 100 open to minority applicants.”)
bFour years before Bakke, the Supreme Court considered a reverse discrimination case arising from an affirmative action program at the University of Washington Law School. The Court avoided reaching a decision on the substantive merits of the case by holding that it was moot given that the law school had allowed the plaintiff to enroll and earn a diploma. Notwithstanding this procedural dodge, Justice William O. Douglas issued a dissent denouncing the defendant university’s racially selective admissions program. See DeFunis v. Odegaard, 416 U.S. 312 (1974).
cThe point is driven home powerfully by an excellent article that has strongly shaped my thinking. See Colin S. Diver, “From Equality to Diversity: The Detour from Brown to Grutter,” University of Illinois Law Review (2004): 691.
dIn controversies involving racial profiling by police, “some courts argue that there is nothing to be concerned about if race is only one of several factors taken into account by police in determining suspiciousness. Indeed, some courts are suggesting that decisions which distinguish between persons on a racial basis do not even constitute racial discrimination when race is not the sole or dominant consideration prompting disparate treatment. This is a profoundly wrong view. Even if race is only one of several factors behind a decision, tolerating it at all means tolerating it as potentially the decisive factor.” Randall Kennedy, Race, Crime, and the Law (1997), 148.
eAn internal report by the Sixth Circuit Court of Appeals found that Chief Judge Martin had acted improperly in his handling of the case but recommended no disciplinary action. The Sixth Circuit’s handling of the matter was subsequently criticized by a report of the Judicial Conduct and Disability Act Study Committee, chaired by Justice Stephen Breyer. See Implementation of the Judicial Conduct and Disability Act of 1980: A Report to the Chief Justice (September 2006), 76–78; Adam Liptak, “Court Report Faults Chief Judge in University Admissions Case,” New York Times, June 7, 2003.
fFor commentary on Justice O’Connor’s affirmative action jurisprudence, see Earl M. Maltz, “Ignoring the Real World: Justice O’Connor and Affirmative Action in Education,” Catholic University Law Review 57 (2008): 1045; Thomas R. Haggard, “Mugwump, Mediator, Machiavellian, or Majority? The Role of Justice O’Connor in the Affirmative Action Cases,” Akron Law Review 24 (1990): 47.
g“Although the Court recites the language of our strict scrutiny analysis, its application of that review is unprecedented in its deference.” Grutter v. Bollinger, 539 U.S. 306, 380 (2003) (Rehnquist, C.J., dissenting). “The Court … does not apply strict scrutiny. By trying to say otherwise, it undermines both the test and its own controlling precedents.” Ibid., 387 (Kennedy, J., dissenting).
h“Let’s be honest: Many who defend affirmative action for the sake of ‘diversity’ are actually motivated by a concern that is considerably more compelling. They are not so much animated by a commitment to what is, after all, only a contingent, pedagogical hypothesis. Rather, they are animated by a commitment to social justice. They would rightly defend affirmative action even if social science demonstrated uncontrovertibly that diversity (or its absence) has no effect (or even a negative effect) on the learning environment.” Randall Kennedy, “Affirmative Reaction,” The American Prospect, March 1, 2003. See also Kent Greenawalt, “The Unresolved Problems of Reverse Discrimination,” California Law Review 67 (1979): 87, 122 (“I have yet to find a professional academic who believes the primary motivation for preferential admission has been to promote diversity in the student body for the better education of all students”); Alan Dershowitz, “Affirmative Action and the Harvard College Diversity-Discretion Model: Paradigm or Pretext,” Cardozo Law Review 1 (1979): 379, 407 (“The raison d’être for race-specific affirmative action programs has simply never been diversity for the sake of education. The checkered history of ‘diversity’ demonstrates that it was designed largely as a cover to achieve other legally, morally, and politically controversial goals”).
iThe vociferousness with which Thomas excoriated the University of Michigan is noteworthy. “All the Law School cares about,” he announced, “is its own image among know-it-all elites, not solving real problems like the crisis of black male underperformance.” Grutter v. Bollinger, 539 U.S. 306, 373 (2003) (Thomas, J. dissenting). He makes this attribution of institutional selfishness without substantiating evidence and with no hint of having considered that the law school’s conduct might have been actuated at least in part by generous intentions.
jBooker T. Washington, born a slave, was the founder of the Tuskegee Institute. An advisor to leading politicians and philanthropists, he was probably the most influential African American at the dawn of the twentieth century. Derided for his apparent acquiescence to white supremacy, Washington secretly assisted challenges to it. See Robert J. Norrell, Up from History: The Life of Booker T. Washington (2011).
kSee David Levering Lewis, W.E.B. DuBois, 1898–1919: Biography of a Race (1994); W.E.B. DuBois, 1919–1963: The Fight for Equality and the American Century (2001).
lThree judge panels chosen randomly typically decide cases for the twelve federal circuit courts of appeal. If a sufficient number of judges vote to reconsider a panel’s decision, the case is heard en banc by all of the circuit’s active judges. If a majority of judges disagree with the panel, their judgment becomes the holding of the circuit.
mOthers called for the overruling of Grutter as well. See, e.g., Brief Amicus Curiae of Pacific Legal Foundation, Center for Equal Opportunity, American Civil Rights Institute, National Association of Scholars, and Project 21 in Support of Petitioner (“Grutter is irredeemably flawed and should be overruled”).
5.
Reflections on the Future of the Affirmative Action Controversy
I conclude by offering three observations regarding the future of racial affirmative action in the United States. The first has to do with the likely fate of race-neutral but race-conscious measures such as the Texas ten percent law. The second concerns the trajectory of American race relations law against the backdrop of international developments. The third involves the question of a deadline for racial affirmative action.
Racial affirmative action will remain a substantial presence in American life for the foreseeable future, no matter how the Supreme Court resolves Fisher. The racial homogeneity in key institutions that was so prevalent and taken for granted prior to the 1960s—all-white presidential cabinets, all-white legislators, all-white firms, all-white university classes, all-white college faculties, all-white newsrooms, a
ll-white police departments, all-white corps of military officers—is inconceivable today. Racial minorities are far less likely to confront the unyielding walls of prejudice that previous generations encountered. Larger numbers of racial minorities, moreover, hold their own in competitions with white peers, even though, as previously noted, whites still tend to outperform blacks and Latinos by a wide margin on standardized tests. Reflecting and reinforcing these changes is a sentiment, widely held, that reacts negatively to racial homogeneity in institutional life. Most Americans want to escape the gravitational pull of the country’s ugly racial past. If affirmative action is required to effectuate that ambition, they will accept it, albeit in disguise.
Affirmative action disguised in plain sight includes “race-neutral” policies established for the purpose of elevating blacks and other marginalized groups but making no reference to race in their packaging.a Texas’s Top Ten Percent Plan is such a policy. It is race neutral in that race plays no immediate explicit role in the criteria that determine eligibility for the plan’s benefits. A student in the top 10 percent of a high school receives the benefit—automatic admission to the Texas public university system—whatever his or her race. The same rule applies evenly—neutrally—to all. On the other hand, the Top Ten Percent Plan is obviously race-conscious; one of its evident and articulated purposes was to increase the number of blacks and Latinos admitted to UT after the Hopwood decision invalidated the university’s use of direct racial selectivity. That the Texas plan and similar programs are termed “race neutral” despite their clear purpose to assist racial minorities reflects a yearning to accommodate conflicting aims: an end to racially selective affirmative action and a simultaneous insistence that something be done to continue to advance the interests of racial minorities. The use of misleading or obfuscatory nomenclature to cover up racial realities is nothing new. The antebellum Constitution that supported slavery never used the term “slavery.” And segregation was supposedly equal. “Race neutral” policies that are actually race conscious are simply the latest in a long line of legal fictions in American race relations law.
Some opponents of racially selective affirmative action make much of the distinction between a law that is expressly race conscious on its face and one that is race conscious behind the scenes but raceless on its face. An example is the formidable scholar-activist Richard Kahlenberg, who writes in the aftermath of the oral argument in Fisher:
In the minds of some commentators, [the race-neutral alternatives employed by UT] … aren’t really race-neutral, because they are aimed at indirectly improving racial diversity.…But there is an enormous constitutional and policy difference between plans that treat individual students differently based on skin color and those that don’t.1
Kahlenberg traces this “enormous” difference to what he sees as the “moral cost to employing racial preferences.” Such decision making violates what he views as “the fundamental principle of nondiscrimination.”2
There are several problems with Kahlenberg’s formulation. First, he never answers the charge that there is little or no substantive difference between racially selective policies that openly seek to enlarge the numbers of racial minorities in key institutions and policies that seek to accomplish that purpose surreptitiously with no open reference to race. Surely Kahlenberg would accept that there is no substantive difference between laws that expressly exclude blacks from the ballot box and laws that purposely do so covertly. Both types of laws are unfairly racially discriminatory despite their difference in packaging. Packaging matters. But surely it should not be determinative. More important are the aims behind the packaging and the consequences that ensue.
Second, Kahlenberg never identifies concretely the “moral costs to employing racial preferences.” There are, to be sure, moral costs that stem from employing racial preferences or dispreferences for evil reasons. But in what way are there moral costs that stem from employing racial preferences or dispreferences for good reasons such as assisting those hurt by past racial mistreatment? Kahlenberg doesn’t say. He does say that his point would have been considered obvious by “mid-1960s liberals” and that his perspective was shared by the great Martin Luther King, Jr. But putting aside the accuracy of the historical observation,b what does it prove? Mid-1960s liberals, for all their virtues, were people limited (as are we all) by temporal circumstance. Some of them did not have the opportunity to see at close hand the sobering limits of mere antidiscrimination measures. Others did not have the wherewithal to put to optimal use the experiences they did have occasion to absorb. Why should we, better provisioned with experience than 1960s liberals, including Martin Luther King, Jr., not make use of that learning, even if the conclusions diverge from those reached by honorable ancestors?
Kahlenberg speaks reverentially of “the fundamental principle of nondiscrimination.” Nondiscrimination, however, is better understood not as a “principle” but merely a tool. The pertinent principle should be racial justice. How one effectuates that principle is a matter that involves all manner of complex sociological and political judgments. Under certain circumstances, nondiscrimination is probably the best vehicle available for attaining racial justice (or its closest practicable approximation). Under other conditions, however, racially selective affirmative action is a better vehicle.
Opponents of racial affirmative action have effectively grabbed the moral high ground by trumpeting nondiscrimination as a noble and transcendent “principle.” A consequence is that supporters of affirmative action often adopt an apologetic defensive posture in which they concede that their position is morally flawed but plead for extenuation on the grounds that affirmative action will only be temporary and only be sharply limited in extent. Some advocates for affirmative action may not actually believe this but feel called upon to say it anyway, perceiving such a concession as necessary for the sake of seeming “sound” and gaining a hearing. I have felt this way in the past. No longer. The affirmative action ethos is not a necessary evil; it is a positive good.c
That is not to say that affirmative action is without risk and expense. As I have noted at some length, affirmative action does generate toxic side effects—like many useful medicines. If the side effects outpace the therapeutic benefit, the medicine should be discontinued (though, it is hoped, replaced by something more suitable). This is far from conceding, however, that affirmative action is burdened by a moral taint. Some observers who mistakenly believe that it is morally tainted somehow embrace guiltlessly so-called race-neutral, race-conscious measures. They delude themselves with thin formalism. I gain some solace, however, recognizing that they are at least moved to support some intervention aimed at furthering the unfinished quest for racial justice.
The United States will have company as it continues fitfully to reform itself racially.3 It is not the only divided society that has deployed programs that discriminate positively on behalf of marginalized groups. The Indian constitution expressly authorizes the reservation of places in favor of members of subordinate castes and other designated groups in certain jobs and in state-run educational institutions.d 4 The Canadian Charter of Rights and Freedoms authorizes “any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age, or mental or physical disability.”5 These and kindred authorizations in other nations have been acted upon and are consistent with the key provisions of international law regarding race relations.
There is arguably some tension between affirmative action and the text of the International Covenant on Civil and Political Rights (ICCPR). The covenant declares:
All persons are equal before the law and are entitled without discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race …”6
If “discrimination” was defined in the covenant in the unqualified fashion that color-blind immediatists advance, international law would condemn racial affirmative action. The color-blind interpretation was seen as sufficiently plausible by the American State Department to warrant the promulgation of an “Understanding” when the United States was in the process of ratifying the covenant. This Understanding set forth the United States’ reading of the covenant’s language. Under that reading, the covenant barred “discrimination,” but permitted “distinctions” that are “at [a] minimum, rationally related to a legitimate governmental objective.” In other words, during the affirmative action–friendly administration of President Clinton, the State Department made clear that, in its view, the only sort of racial “discrimination” barred by the covenant was the negative, exclusionary sort, not the positive, inclusive variety.7
Also pertinent to the status of racial affirmative action in international law is the International Convention on the Elimination of All Forms of Racial Discrimination. The convention outlaws racial “discrimination.”e Exempted from this prohibition, however, are “special measures taken for the sole purpose of securing adequate advancement of certain racial or ethnic groups or individuals requiring such protection as may be necessary in order to ensure such groups or individuals equal enjoyment or exercise of human rights and fundamental freedoms.…”f Elsewhere the convention reiterates the permissibility of affirmative action and adds that signatories “shall, when the circumstances so warrant, take, in social, economic, cultural and other fields, special and concrete measures to ensure the adequate development and protection of certain racial groups or individuals belonging to them.…”8
Although affirmative action of various sorts has been authorized by numerous countries, others have been resistant. Two with particularly close historical ties to the United States are Great Britain and France.
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