Will There be More Challenges to Affirmative Action Policies in the Wake of Fisher?

Unlike me, co-blogger David Bernstein and widely respected columnist Stuart Taylor believe that the Court’s recent decision in Fisher v. University of Texas was a setback for opponents of affirmative action. They agree that the Court’s ruling raised the legal standards that affirmative action programs must meet in order to survive judicial scrutiny. But they argue that this will not matter much because too few plaintiffs will challenge the policies. Taylor summarizes the reasons for this conclusion:

1) Very few white or Asian students who suspect that they were rejected on account of racial preferences are motivated to bring lawsuits. The vast majority would rather get on with their lives…. (2) It is extremely difficult for a rejected student to know, let alone prove, that she would have been admitted but for racial preferences…. (3) Another deterrent to suing is the endless delay that is routine in major litigation…. (4) Such lawsuits are very expensive, and far beyond the means of almost all rejected applicants. While Fisher’s lawsuit has been financed by conservative activists led by Edward Blum, they could provide only a tiny fraction of the resources that any university can throw into the fray.

Taylor’s second reason is off-base. Rejected applicants disadvantaged by racial preferences are not required to prove that “they would have been admitted but for [those] preferences.” Abigail Fisher, Barbara Grutter, and Jennifer Gratz, among others, could not and did not prove any such thing. Yet they were able to bring their cases anyway. The applicable legal rule is that such plaintiffs need only prove that they were denied an equal chance to compete for admission regardless of race. As the Supreme Court ruled in the 1978 Bakke case:

E]ven if Bakke had been unable to prove that he would have been admitted in the absence of the special [affirmative action] program, it would not follow that he lacked standing. The constitutional element of standing is plaintiff’s demonstration of any injury to himself that is likely to be redressed by favorable decision of his claim… The trial court found such an injury, apart from failure to be admitted, in the University’s decision not to permit Bakke to compete for all 100 places in the class, simply because of his race.

Later decisions, including Fisher, have allowed suits to proceed in cases where applicants are allowed to compete for all the places in a class, but disadvantaged by racial preferences in that competition. Otherwise, no one could ever sue to challenge racial discrimination in admissions, including traditional discrimination against minorities. Given the large element of discretion in admissions policies, even applicants with extremely high grades and test scores can almost never definitively prove that they would have been admitted in the absence of racial discrimination.

Taylor’s other concerns are all valid. Many potential litigants are likely to be deterred by the time, effort, and cost required by litigation. But the pessimistic conclusion he draws from this fact is undermined by the reality that discriminatory admissions policies generate tens of thousands of potential plaintiffs every year. Only a tiny fraction of these people need to file lawsuits in order to generate a substantial number of follow-up cases to Fisher. Despite the difficulties, some are likely to sue out of anger, frustration, or commitment to principle. Over the last 35 years, since Bakke, there has been a steady trickle of affirmative action cases reaching the federal courts. That’s how we got Grutter, Gratz, and Fisher, among others. There is no reason to expect that the number of cases will decline now that Fisher has increased the likelihood that the plaintiffs can prevail.

Moreover, some of the burdens mentioned by Taylor can be mitigated. For example, conservative and libertarian public interest law firms and philanthropists have financed challenges to racial preferences in the past (including Grutter, Gratz, and Fisher), just as the NAACP and liberal philanthropists once financed legal challenges to Jim Crow segregation. They will surely continue to do so, now that they have a better chance of winning. For some potential plaintiffs, the nonfinancial burdens of litigation may be offset by the psychic benefits of becoming a hero to conservatives, and at least some of the vast majority of Americans who continue to oppose affirmative action preferences in admissions.

David suggests that universities might buy off some potential plaintiffs by offering them admission. Maybe so. But if that strategy is used to any great extent, it will actually incentivize more lawsuits, since rejected applicants will see suing as an easy way to gain admission to a more prestigious school than they could attend otherwise. For that reason, I doubt that very many schools will be willing to grant admission to anyone who files a plausible case.

Fisher is far from being the death knell of racial preferences in higher education. Among other things, it will likely allow some of them to continue in the form of “race-neutral” programs that are actually intended to benefit some racial groups at the expense of others. But there probably will be enough plaintiffs available to take advantage of the decision’s imposition of tighter judicial scrutiny on open racial preferences in admissions.

UPDATE: I should perhaps briefly discuss the Supreme Court’s 1999 decision in Texas v. LeSage, a case charging racial discrimination in university admissions where the Court ruled that “[t]he government can avoid liability by proving that it would have made the same decision without the impermissible motive.” However, notice that proving that it would have made the same decision absent racial discrimination is a very high standard to meet. The government has to make “a conclusive demonstration that it would have made the same decision absent the alleged discrimination” [emphasis added]. In most admissions cases, all the school can prove is that the plaintiff would have had a relatively small chance of getting in absent racial preferences, not no chance. In LeSage itself, the university prevailed only because the claim that they would have made the same decision anyway was “undisputed.” Moreover, LeSage also states that “a plaintiff who challenges an ongoing race-conscious program and seeks forward-looking relief need not affirmatively establish that he would receive the benefit in question if race were not considered. The relevant injury in such cases is ‘the inability to compete on an equal footing.’”