Tuesday, July 9, 2013

Affirmative Action after Fisher

A stable society depends on the rule of law, which involves, among other things, legal certainty. This is a simple principle that means people should have a reasonable sense of what is lawful and what is not. It also depends on the general public having confidence that the law enjoys some relationship -- not necessarily close, but at least a passing one -- to common sense. 

But a recent decision about affirmative action in higher education has given the public cause to scratch their heads in puzzlement. 
Fisher: a puzzling decision
Discrimination law is complex, and nobody should expect judicial opinions on the subject to be as pat and trite as a politician's soundbite. But the rule of law requires that ordinary people of reasonable intelligence should at least be able to follow the rationale for a judicial decision even if they do not agree with it. The case of Fisher v. University of Texas at Austin falls short of this standard.

In Fisher, the Supreme Court held that the educational benefits of racial diversity can justify a state university in using race as a factor in its admissions process, but only if there are "no workable race-neutral alternatives." The holding in Fisher leaves informed, intelligent individuals wondering how, when, and why some (but not other) race-based classifications are acceptable, and grasping for a way to make sense of the plain-English version of the decision, namely that a state university must try to achieve racial diversity without considering race. 
As Justice Kennedy noted at the very beginning of the Court's opinion, the University of Texas at Austin "considers race as one of various factors in its undergraduate admissions process." Precedent entitles it to do so, even though racial classifications trigger strict scrutiny under the Equal Protection Clause of the Fourteenth Amendment. But in reviewing the University's process, the Court of Appeals had failed to "apply the correct standard of strict scrutiny." What then is the "correct standard," which the the Court of Appeals should have applied? It is this, said the Supreme Court: 
"[S]trict scrutiny imposes on the University the ultimate burden of demonstrating, before turning to  racial classifications, that available, workable, race-neutral alternatives do not suffice."
Reducing the holding to its essence, universities are free to aim for racial diversity so long as they do not use race in the process. Only if there is no "available, workable race-neutral alternative" that will produce the educational benefits of racial diversity (and not merely diversity itself) may they use race as one of their admissions criteria. This standard is hard to understand in theory, almost impossible to apply in practice, and the most likely field for the next battle over affirmative action.

Some background is helpful at this point. Affirmative action involves making decisions on the basis of racial classifications.  When the government uses a racial classification, the courts will apply the "strict scrutiny" test to determine whether that use is consistent with the Equal Protection Clause of the Fourteenth Amendment.  Thirty-five years ago the Supreme Court of the United States held that in the context of higher education a state university that uses race as one of its admissions criteria must show that the use is "narrowly tailored to serve a compelling governmental interest." Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 299 (1978).  And what is that "compelling governmental interest"? The "educational benefits of student body diversity," said the Supreme Court in Gratz v. Bollinger, 539 U.S. 244 (2003) and Grutter v. Bollinger, 539 U.S. 306, 325 (2003).

It is important to note that the plaintiff in Fisher did not challenge this notion that the "educational benefits of student body diversity" rise to the level of a compelling governmental interest. A compelling governmental interest is part of the strict scrutiny test. It is, by definition, a higher standard than the "legitimate" and "important" governmental interests that form part of the rational-basis and intermediate scrutiny tests respectively. Grutter and Gratz remain authority for the proposition that the educational benefits of racial diversity constitute a compelling -- not merely legitimate or important -- governmental interest. In their separate concurrences, Justices Thomas and Scalia both indicated that they would have welcomed the opportunity to revisit this issue. 

In his concurrence, Justice Thomas observed that the only other situations to qualify as compelling governmental interests sufficient to justify racial classifications were national security and the duty to remedy past racial discrimination. He pointed out that in the 1950s and 60s when segregationist state governments claimed that desegregation would force schools to close, the Supreme Court "was unmoved by this sky-is-falling argument." If even the very survival of a university is not a governmental interest sufficiently compelling to justify racial discrimination, Justice Thomas wrote, it follows that the state "cannot have a compelling interest in the supposed benefits that might accrue to that university from racial discrimination." Justice Thomas enunciates a clear argument that even his critics would concede is internally consistent. Just as clear and consistent as Justice Thomas's concurrence is the dissent.

Unlike Justice Thomas, Justice Ginsburg supports affirmative action. She pointed out that requiring universities to employ race-neutral means to achieve an obviously race-conscious end encourages them to "resort to camouflage." Instead, the courts should be more candid. On the subject of strict scrutiny, Justice Ginsburg wrote that judges should not subject all racial classifications to the same standard of judicial review, letting them distinguish between those "designed to benefit... [and those designed to] burden a historically disadvantaged group." Even though it rests on the assumption that judges are able to recognize a burden when they see one, this approach does not consider the rejection of Asian and White students as a burden, even though it is the corollary of the benefit to admitted Black students. 

Like Justice Ginsburg, the legal scholar Randall Kennedy believes that "reparatory justice" not educational diversity is the moral and intellectual justification for affirmative action. He describes Abigail Fisher, the plaintiff in the Fisher case, as "to a small extent disadvantaged... [b]ut for the purpose of aiding a commendable mission of racial healing not for the purpose of putting her down on account of her race." He shares Justice Ginsburg's belief that one can distinguish between invidious discrimination and benign racial distinctions, and he would not put the discrimination Abigail Fisher experienced in the invidious category. This is an approach Justice Thomas disagrees with fundamentally: "I think the lesson of history is clear: Racial discrimination is never benign."

Justice Thomas's reasoning may have a closer connection to common sense than the opinion of the Court, as may Justice Ginsburg's. But the concurrence and the dissent are not the law. The majority (including Justices Thomas and Scalia) signed on to an opinion that (a) justifies affirmative action in higher education on the basis that the educational benefits of diversity constitute a compelling governmental interest; (b) requires a university that wishes to achieve the educational benefits of diversity to attempt to do so by race-neutral means; and (c) allows the university to use race only if no workable, race-neutral alternative would produce the educational benefit of diversity. 

People who differ fundamentally on the issue of affirmative action can at least agree that the decision does nothing to promote legal certainty. The rule of law requires a more well-reasoned, internally consistent, readily comprehensible decision than the Court provided in Fisher

1 comment:

  1. Agreed. By coming up with such a vague Catch 22 set of standards, the Supreme Court had done nothing but muddy the waters.

    It will be interesting to see how this eventually plays out at our own UMass/Amherst.