Stuart Taylor’s Response to My Post on Prospects for Challenges to University Affirmative Action Policies After Fisher

Well-known columnist Stuart Taylor has posted a thoughtful response to my critique of his earlier post arguing that the prospects for future challenges to university affirmative policies after Fisher are bleak:

Ilya Somin has posted a critique of my Minding The Campus commentary worrying that the Supreme Court’s decision in Fisher v. University of Texas could have the paradoxical effect of entrenching racial preferences for decades.

Ilya makes reasonable points, and he may turn out to be right. I respectfully disagree, as explained below, with his contention that I was “off base” in saying that it is extremely difficult for a rejected student to know, let alone prove, that she would have been admitted but for racial preferences….

As for “off base”: Ilya does not deny the factual accuracy of my statement that rejected students’ inability to know whether they would have been admitted but for racial preferences may be a major deterrent to reverse-discrimination lawsuits. Rather, he disputes my suggestion that this may be a major deterrent to suing.

In fact, it has already proved to be a strong deterrent. The proof is that during the more than 45 years since racial preferences in admissions got started, only five reverse-discrimination lawsuits (the first of which was dismissed as moot) have gotten to the Supreme Court. And very few have prevailed in lower federal courts.

Among the reasons for this paucity is the fact that neither Abigail Fisher nor any future plaintiff can ultimately win a remedy unless the courts end up deciding after years of litigation that she would have been admitted had race not been considered — an issue about which the rejected applicant has far less information than the university does.

Other deterrents to suing are the unlikelihood of a substantial damage award; the negative publicity, vilification, and invasions of privacy to which any such plaintiffs are likely to be subjected; and the fact that any decision requiring the defendant university to admit the plaintiff would almost certainly come after she — like Abigail Fisher — has already graduated from some other college.

One more thing: At the age of 76, Justice Anthony Kennedy has just passed up what may well be his last chance to cast the fifth vote greatly to curtail, if not to abolish, racial preferences in state university admissions.

I did not deny that “it is extremely difficult for a rejected student to know, let alone prove, that she would have been admitted but for racial preferences.” Rather, I denied that this kind of proof is needed to win a lawsuit. It was not needed by previous successful plaintiffs in affirmative action cases, nor is it required by the Fisher decision. Nor is it needed to get a remedy. As I noted in my previous post, the Supreme Court has held 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.’” “Forward-looking relief” includes precisely the sort of remedies affirmative action opponents most want, including putting an end to future preferences. Such proof is also not necessary in class action cases, such as Grutter v. Bollinger and Gratz v. Bollinger.

It is true that only five reverse discrimination cases have reached the Supreme Court over the last 45 years. However, this is largely due to the Court’s discretionary control over its own docket. For much of that time, the justices likely did not want to hear additional cases in this field. By contrast, the Court’s tightening of judicial scrutiny of affirmative action in Fisher suggests renewed interest in the area. As Lyle Denniston of SCOTUSblog points out, “[t]here is a strong new incentive for opponents of “affirmative action” in college admissions to test virtually every such program; indeed, in some ways, the tone of the opinion would seem to invite such further testing.”

The relative rarity of victories in lower courts is explicable by the fact that, until Fisher, Supreme Court precedent made it relatively easy for universities to defend preference policies so long as the official justification for them was “diversity.” By contrast, as Stuart recognizes, Fisher significantly tightens judicial scrutiny of such policies, and makes them a lot harder to defend.

As I noted in my original post, Stuart is certainly right that the time, expense, and psychological burdens of suing will deter many potential plaintiffs. But as I also explained there, affirmative action opponents only need a small fraction of the potential plaintiffs to sue in order to generate a steady stream of cases. And state university policies generate tens of thousands of such potential plaintiffs every year. Fisher may increase the supply of plaintiffs by attracting additional publicity to the issue, and by making these cases much easier to win.

Finally, Stuart is right that Justice Kennedy is 76, and his time on the Court is waning. However, modern Supreme Court justices regularly serve well into their eighties. A future liberal majority on the Court could well gut Fisher and make affirmative action policies much easier to defend. But notice that it could just as easily overrule or severely restrict a stronger anti-affirmative precedent. Over the last 25 years, there has been deep division on the Court over affirmative action, and the liberals are unlikely to give much deference to recent conservative precedents in this field (and vice versa).