The Volokh Conspiracy

For a long time, the conventional wisdom among legal scholars has been that an originalist interpretation of the Fourteenth Amendment would require courts to uphold laws that discriminate against women and laws banning interracial marriage. While these arguments were once advanced by defenders of sexism and Jim Crow laws, today they are usually used as justification for rejecting originalism itself rather than for rejecting court decisions such as Loving v. Virginia, which struck down anti-miscegenation laws. At the same time, most scholars have also argued that the original meaning of the Amendment permits states to adopt affirmative action programs.

Recent scholarship has called this conventional wisdom into serious question. In 2011, Northwestern law professor Steven Calabresi and Julia Rickert published an important article outlining an originalist case for striking down laws that discriminate on the basis of sex. More recently, both Calabresi (with Andrea Matthews) and David Upham have published originalist defenses of the result in Loving.

Just a few days ago, Michael Rappaport posted this paper questioning the conventional wisdom on originalism and affirmative action (which I myself questioned much less thoroughly here). It is not my view that the original meaning of the Fourteenth Amendment clearly requires courts to strike down all affirmative action programs. But the application of the original meaning to these programs is far from being as clear as the conventional wisdom suggests.

I don’t think the work of Calabresi and his coauthors, Rappaport, and Upham will definitively end the debate over originalism and discrimination. Critics of originalism will likely develop rebuttals to their arguments. But this new wave of scholarship does mount a strong challenge to the previously dominant conventional wisdom.

Instapundit links to this Daily Beast piece:

These days, a nearly-perfect GPA is the barest requisite for an elite institution. You’re also supposed to be a top notch athlete and/or musician, the master of multiple extracurriculars. Summers should preferably be spent doing charitable work, hopefully in a foreign country, or failing that, at least attending some sort of advanced academic or athletic program.

Naturally, this selects for kids who are extremely affluent, with extremely motivated parents who will steer them through the process of “founding a charity” and other artificial activities. Kids who have to spend their summer doing some boring menial labor in order to buy clothes have a hard time amassing that kind of enrichment experience.

The irony is that even admissions officers seem to be put off by this dynamic; presumably that’s why I’m told that kids now have to have fake epiphanies about the suffering of other, less privileged people instead of just having fake epiphanies about themselves. This proves that they are really caring human beings who want to do more for the world than just make money so that they, too will, in their time, be able to get their children into Harvard.

I had something of an epiphany on this when I visited a D.C.-area private school that boasted that it had one of the best high school girls’ lacrosse teams in the country. Why in God’s name, I wondered, would anyone care about this when considering a private school, especially given that I was there for a kindergarten open house? Then it dawned on me: this is the way the school gets some girls with marginal academic credentials into elite schools. All elite colleges with women’s lacrosse have to fill their teams, and lacrosse is prevalent only at expensive private schools. A form of affirmative action for the rich, if you will. And a signal to parents that even if their girls don’t grow up to be lacrosse players, the school is willing to invest substantial resources in a variety of ways to make sure they get into a top college.

And then it dawned on me that the modern emphasis on admitting students who spend their summers building playgrounds in El Salvador, or conduct medical research at the Mayo Clinic, and so on, is another form of affirmative action for the rich (and those with well-educated parents). Not only do people from modest backgrounds not have the financial wherewithal to do such things, for most of them it would never occur to them to do them to begin with. (It certainly would never have occurred to me, and my background wasn’t all that modest.) By contrast, one of the jobs of guidance counselors at fancy private schools is to ensure that their students have exactly the kind of “experiences” that admissions officers are looking for. Not surprisingly, I was just reading how America’s most elite universities are dominated by kids from wealthy families (sorry, didn’t save the link).

This is also a reason that elite universities are so committed to affirmative action preferences. By ensuring that they have sufficient “diversity” in their classes, they claim the mantle of “social justice” while distracting potential critics from the fact that they have rigged the rest of the admissions process to favor those who have the resources and knowledge to game the system. There are all sorts of obvious reasons that, say, Harvard, would rather take in wealthy kids from well-educated families than scour the country for the diamonds in the rough. What’s interesting is how rarely they get called on it. What’s also interesting is that when Larry Summers made substantial efforts to make Harvard more accessible to kids from modest economic backgrounds he received approximately zero credit for it from his critics on the left.

UPDATE: Commenter Unemployed Northeastern writes:

Spot on. Having been lucky enough to land scholarships to attend a New England prep school back in the day (though not quite a Exeter/Andover/Deerfield-caliber institution), I can aver that the admissions standards at elite colleges for that cohort – particularly if they are athletes – are considerably lower than for Sally Q. Public School. I think rowing and hockey (men’s and women’s) are better examples than lacrosse, though. Two of the strongest sports for the Ivies and Little Ivies, and the Grotons and St Pauls and Choates and similar have produced a huge number of Olympians in those sports. The stories I could tell of B or B- students with <1200 SAT scores who got into Dartmouth or Williams or Harvard because they attended a "proper" private school and had great ability to row or play lacrosse, hockey, squash, etc... And if you read Kellogg professor Lauren Rivera's groundbreaking research* into the hiring proclivities of elite banks and consulting firms, you would learn that the golden ticket to these careers, which probably have the best exit opportunities in the American workforce, is attendance to a Top 5 university AND athletic prowess. A 3.5GPA athlete from Harvard (3.5 being the average grade at Harvard these days, thanks to years of grade inflation) is prized over a 4.0GPA non-athlete from Harvard, and of course, if one *only* attends a Bowdoin or Georgetown or UW Madison, well, you probably won't get an interview. THIS is why certain parents freak out about the strength of these sports - it is easier to get into an Ivy from athletics than academics, elite employers value athletes (most likely because they were athletes themselves, as were the people who hired them, etc etc), and let's be honest, the middle class is collapsing.

To wit, Jerome Karabel reveals in his book "The Chosen" that to this day, 40% of each incoming class at Princeton is comprised of legacies and athletes and URMs, in that order. The Harvard Crimson revealed a little while ago that even though the institution arguably has the best FA in the world, nearly half of the student body came from a family with more than $200,000 in annual household income (roughly the top 3.8% of households), while less than 1 in 25 came from the bottom quntile and less than 1 in 5 came from the bottom THREE quintiles of income.

Among the orders issued by the Supreme Court this morning was a grant of certiorari in Schuette v. Michigan Coalition to Defend Affirmative Action , in which the question is whether a state ballot initiative prohibiting the consideration of race in state university admissions violates the Equal Protection Clause. The case arises from a lawsuit challenging the constitutionality of the so-called Michigan Civil Rights Initiative. The U.S. Court of Appeals for the Sixth Circuit, sitting en banc held 8-7 that the initiative was unconstitutional. As Lyle Denniston reports for SCOTUSBlog, the timing of the grant is something of a surprise given that the Court has yet to rule in the Fisher case, which involves a constitutional challenge to the use of race in public university admissions. Were the Court to rule that any and all use of race in admissions violates the Equal Protection Clause, there would be nothing for the Court to consider in Schuette.

Atlantic:

Erwin Chemerinsky, founding dean of the University of California, Irvine School of Law, said that the concept of colorblindness holds great rhetorical appeal but that “there is no basis for concluding that the 14th Amendment equal protection clause requires colorblindness.” In drafting the 14th Amendment, he said, Congress recognized “an enormous difference between a white majority disadvantaging minorities and a white majority acting to remedy past discrimination.”

C’mon Erwin. The text of the relevant portion of the Amendment reads

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

It’s fine to conclude that based on one’s own understanding of the text, history, proper modes of interpretation and so on, the Fourteenth Amendment doesn’t require colorblindness. But surely the fact that the Amendment is itself textually “color blind,” and speaks only of “persons” and not groups, and shows no textual evidence that Congress recognized “an enormous difference between a white majority disadvantaging minorities and a white majority acting to remedy past discrimination” is itself “a basis,” even if you don’t find it persuasive, for concluding otherwise. And of course there are other reasons one could reasonably interpret the Fourteenth Amendment to require color-blindness (the natural rights tradition, alluded to in this context often by Clarence Thomas; the historic concern with and opposition to “faction”; the mistrust of states, especially the southern states and especially with regard to race, after the Civil War; the historic Plessy dissent by Justice Harlan on that basis; and so on).

So I’m not saying that it’s wrong to think that the Constitution doesn’t require color-blindness. It’s a difficult interpretive issue. But I think it’s unfortunate when legal scholars wildly overstate the certainty of things in public discourse because they happen to support one side of a controversy.

The Harvard Crimson reports:

The Harvard Law Review, which has historically been staffed by disproportionately more men than women, has expanded its affirmative action policy to include gender as a criteria in its editor selection process.

Following a year in which just 20.5 percent of its elected editors were female, the Law Review will consider gender when choosing some of its applicants for the first time ever this year.

The majority of the Law Review’s returning editors approved the policy change this January in an attempt to increase the number of female editors on the staff. Because of the specific nature of the Law Review’s admissions process, the new policy will be used in choosing 12 of the Law Review’s next 46 editors.

Second-year Law School student Gillian S. Grossman ’10, the recently elected president of the Law Review who will lead the organization’s 127th volume, wrote in an email that the policy change was among many considered to “enhance the diversity of the editorial body.”

“Volume 127 decided that adding gender to the list of criteria considered by the discretionary committee was one good step in that direction,” she wrote.

This was a major subject of debate when I was a student at Harvard Law in the 1990s. Back then, the thought among the Law Review editors was that members of the Law Review went on to become the leaders of society while non-law-review types toiled away in obscurity. Affirmative action to better equalize the numbers on the Review would help ensure that tomorrow’s leaders would include as many women as men. In 1997, the Law Review did a major survey of the entire law school student body to find out what was going on. It turned out that the women and men who actually applied to be on Law Review were admitted at equal rates. The problem was that fewer women applied: According to the survey results, women tended to prefer other extracurricular activities to being on Law Review. So the Review decided to focus on recruiting instead instead of expanding its affirmative action program. The issue has come up from time to time since then, though — here’s an article on the subject from 2006 — without the Review taking action.

One interesting aspect of the timing is that it’s hard to blame the unusually lopsided gender numbers at the Review on the leadership of the law school. In the past, there was some thought that perhaps the low number of women who tried out it reflected the tone of the school set by its traditional male Deans. But Harvard hasn’t had a male Dean since Elena Kagan took office in 2003, at least other than when Howell Jackson non-acting“>briefly was Acting Dean. And the current Dean is Martha Minow, who is not generally thought to be an oppressive symbol of the patriarchy. So whatever the cause was of the low numbers, presumably it was not related to the Dean. (FWIW, I never tried out for Law Review and wasn’t on it, so while I watched the debate as a student I wasn’t directly involved in it. Anyway, back to toiling.)

Hat tip: How Appealing

UPDATE: Kevin Walsh weighs in with his interesting perspective from having been a Law Review editor who helped implement the Review’s preexisting affirmative action policy.

Gail Heriot has a powerful affirmative action piece over at National Affairs. Her piece elaborates on the important work of Richard Sander, who guest blogged here last year. They contend — and offer compelling empirical evidence — that affirmative action affirmatively harms its supposed beneficiaries. In the last paragraph, Gail wonders whether this argument will affect the Court’s analysis in Fisher v. Unviersity of Texas. For what it’s worth, I think that Justice Kennedy, at least, will find this point very compelling indeed.

In a recent post, I wrote about the growing number of people who oppose racial preferences in education, while also supporting gay marriage. Richard Kahlenberg, a long-time advocate of replacing race-based affirmative action with socioeconomic affirmative action, can be added to the list:

The Supreme Court’s decision to hear gay-marriage cases from New York and California this spring means the justices will weigh in on two highly fraught social questions this term—same-sex marriage and affirmative action in higher education. (Not to mention the future of the Voting Rights Act.) Justice Anthony Kennedy is likely to be the swing vote in these cases, and many are predicting he will side with conservatives to limit racial preferences and with liberals to support gay marriage. Paradoxically, the very reasoning that could guide Kennedy to support marriage equality may bolster his decision to curtail race-based affirmative action, spurring colleges to adopt new approaches.

Proponents of gay marriage advance two powerful arguments: Couples seeking to marry should not be discriminated against on the basis of an unchangeable factor like sexual orientation; and shifting attitudes, especially among young people, make gay marriage an inevitability.

The problem for supporters of racial preferences is that these precise arguments can be, and have been, made by conservatives challenging the use of race in university admissions in the case of Fisher v. University of Texas. Abigail Fisher, the plaintiff, says the fact that she was born white should not be used to disadvantage her in admissions; and large-scale trends over the past half century—the decline in racial discrimination coupled with growing economic inequality, a rise in racial intermarriage, and the “browning” of the U.S. population—all make affirmative action based on race look outdated.

I don’t agree with all the points Kahlenberg makes. Not every possible argument for gay marriage can also be turned into an argument against racial affirmative action. Similarly, there are various arguments for affirmative action that don’t imply any particular stance on gay marriage. For example, the compensatory justice rationale for affirmative action is potentially consistent with support for gay marriage. Nonetheless, there is greater synergy between the case for gay marriage and the case against affirmative action than meets the eye. In both cases, the core claim is that government should not discriminate on the basis of an ascriptive characteristic – race in the case of affirmative action and sex in the case of laws banning gay marriage. And in both cases, the standard rationales offered to justify discrimination are increasingly implausible in a pluralistic society that has come to accept a wide range of intimate relationships and is no longer clearly divisible along traditional black-white lines.

UPDATE: Well-known blogger and gay rights advocate Andrew Sullivan recently expressed similar views:

I support marriage equality as passionately as I oppose affirmative action. I believe in formal civic equality of opportunity, not actual equality of results....

For years, that position – the core underpinning of my book Virtually Normal – was regarded as eccentric. But the logic of equal opportunity is as solid for one as for the other. Eventually, people will see that. Some already are.

In a recent post, co-blogger Orin Kerr writes that “few people have the same instinctive reaction to both [the affirmative action and gay marriage] cases” that the Supreme Court is likely to decide in the next few months. He means that few people want the Court to invalidate both affirmative programs and state and federal laws banning same-sex marriage.

Depending on the definition of “few,” Orin may well be right. But it’s important to note that people who oppose racial preferences in college admissions (the issue the Court will consider in Fisher v. University of Texas), while supporting gay marriage are far from unusual. Recent polls show that about 50% of Americans support gay marriage, while many surveys indicate that some 60 to 70 percent of the public oppose racial preferences in college admissions (e.g. here and here). Even if we assume that some 80 to 90% of the 50% who do not support gay marriage also oppose affirmative action in admissions, that still means that about 15 to 20 percent of the public simultaneously opposes racial preferences and supports gay marriage.

And this position is likely to become more common, since support for gay marriage among moderates and conservatives is rapidly growing, while opposition to racial preferences remains fairly stable. A May 2012 Gallup poll found that 57% of independents and 22% of Republicans support gay marriage, and these percentages are likely to increase, since support for gay marriage is inversely correlated with age. The combination of support for gay marriage and opposition to affirmative action is probably also the most common view among the 10 to 15 percent of the public who are generally libertarian in orientation.

Opposition to affirmative action and laws banning gay marriage on policy grounds is not the same thing as believing that the two are unconstitutional. But, as Orin notes, the two are highly correlated. And, for what it is worth, my own reaction to the two cases is indeed that the Court should strike down the Texas affirmative program (though without ruling that all affirmative action programs are unconstitutional), while also ruling that gay marriage bans are unconstitutional because they discriminate on the basis of sex.

UPDATE: It’s also worth noting that the opposite combination of views – supporting affirmative action, while opposing gay marriage – is also not uncommon, at least among African-Americans. Blacks have long been more opposed to gay marriage than whites, though recent Pew survey data suggests that may have changed in recent months. Still, even the most recent poll cited by Pew shows 39% of African-Americans opposing gay marriage. By contrast, African-Americans overwhelmingly support affirmative action in admissions. That means there is a substantial number of blacks who support affirmative action while opposing gay marriage, a number that used to be much larger until very recently.

I will bet anyone (in jurisdictions where it is legal) that the Supreme Court will reverse the Sixth Circuit in Coalition to Defend Affirmative Action v. Regents.  Indeed, my main question is how badly the Coalition to Defend Affirmative Action loses.  My guess is that they get maybe two votes on the Supreme Court.

When Ted Olson and David Boies brought a challenge to California’s Proposition 8 against gay marriage, lots of gay marriage supporters said the litigation was a mistake, because it was too soon.  I don’t recall seeing the same pushback against this Michigan litigation (that is, I don’t recall advocates of affirmative action saying that this litigation was too soon).  I suspect the reason for this difference is that gay marriage advocates believe that time is on their side and affirmative action advocates don’t. But if the groups spearheading the Michigan litigation believe they’ll be in the same position, or in a weaker position, in the future, that still doesn’t explain bringing this litigation if they don’t think they’ll win in the Supreme Court.  So I’m guessing that the Michigan groups bringing this litigation think they will win in the Supreme Court, or they think that the litigation will bring them other benefits (like moving public opinion in their favor) that will outweigh the costs of losing in the Supreme Court.  I’ll take the bet against both propositions.

The Sixth Circuit just held, in Coalition to Defend Affirmative Action v. Regents that a state constitutional amendment banning race preferences in public education (among other contexts) violates the Equal Protection Clause, because it — as a constitutional amendment — makes it harder for those who favor race preferences to change state law to allow such preferences. The decision was by the entire court, not just a three-judge panel, and split 8 to 7.

In this the Sixth Circuit disagrees with the Ninth Circuit, and I think it nearly certain that the U.S. Supreme Court will agree to hear the case: There’s a circuit split, the issue is one of significant national importance, and the 8-to-7 disagreement among the en banc court judges helps, too. I also think it’s very likely that the Court will reverse the Sixth Circuit. The one reason for the Court to deny would be if it holds in the Fisher v. University of Texas that all race preferences in higher education are unconstitutional under the Equal Protection Clause; that might make the controversy about the constitutionality of state bans on race preferences practically moot.

Note, incidentally, that under the majority’s logic Congressional amendment of Title VII to make clear that it bans all race discrimination, with no exception for certain race-based preferences, would be just as unconstitutional. The court’s reasoning is that the Michigan state constitutional amendment preempted ordinary state laws that would allow race preferences, but a federal extension of Title VII would have an even broader effect. Here’s the Sixth Circuit’s summary of its main point:

A student seeking to have her family’s alumni connections considered in her application to one of Michigan’s esteemed public universities could do one of four things to have the school adopt a legacy-conscious admissions policy: she could lobby the admissions committee, she could petition the leadership of the university, she could seek to influence the school’s governing board, or, as a measure of last resort, she could initiate a statewide campaign to alter the state’s constitution. The same cannot be said for a black student seeking the adoption of a constitutionally permissible race-conscious admissions policy. That student could do only one thing to effect change: she could attempt to amend the Michigan Constitution — a lengthy, expensive, and arduous process — to repeal the consequences of Proposal 2. The existence of such a comparative structural burden undermines the Equal Protection Clause’s guarantee that all citizens ought to have equal access to the tools of political change.

Thanks to How Appealing for the pointer.

UPDATE: I see Jonathan beat me to it; I’m closing comments, so that all the comments can go up on Jonathan’s post.

By an 8-7 vote, the U.S. Court of Appeals for the Sixth Circuit has held that Michigan’s Proposal 2, aka the Michigan Civil Rights Initiative, is unconstituional. The Court split along predictable ideological lines, with Democratic nominees siding with the plaintiffs, and Republican nominees voting to uphold the initiative.

Judge Cole delivered the opinion for the court, joined by judges Martin, Daughtrey, Moore, Clay, White, Stranch, and Donald. His opinion begins:

A student seeking to have her family’s alumni connections considered in her application to one of Michigan’s esteemed public universities could do one of four things to have the school adopt a legacy-conscious admissions policy: she could lobby the admissions committee, she could petition the leadership of the university, she could seek to influence the school’s governing board, or, as a measure of last resort, she could initiate a statewide campaign to alter the state’s constitution. The same cannot be said for a black student seeking the adoption of a constitutionally permissible race-conscious admissions policy. That student could do only one thing to effect change: she could attempt to amend the Michigan Constitution—a lengthy, expensive, and arduous process—to repeal the consequences of Proposal 2. The existence of such a comparative structural burden undermines the Equal Protection Clause’s guarantee that all citizens ought to have equal access to the tools of political change.

In other words, it is unconstitutional for a state constitution to prohibit the consideration of race by state actors.

Several judges filed dissents, including Boggs (joined by Chief Judge Batchelder, Gibbons (joined by Batchelder, Rogers, Sutton, Cook, and Griffin (in part)), Rogers (joined by Cook), Sutton (joined by Batchelder, Boggs and Cook), and Griffin.

My prior posts on this case are here and here.

In case it’s not obvious enough, this case has certiorari written all over it. Paging Justice Kennedy. [Update: Of course, as Eugene notes above, if the Supreme Court bars any use of racial preferences in university admissions -- a possible, but I think unlikely, outcome in Fisher -- there would be no need for the Court to consider this case.]

UPDATE: Judge Rogers’ dissent is rather short. Here it is in its entirety:

Under the majority opinion, it is hard to see how any level of state government that has a subordinate level can pass a no-race-preference regulation, ordinance, or law. Doing so would perforce make it harder for one minority or another to obtain a preference at the lower level. That alone can hardly render the no-race-preference act unconstitutional. Whatever Hunter and Seattle hold, the Supreme Court cannot have intended such a ban.

Also, here is the opening of Judge Sutton’s dissent:

Today’s lawsuit transforms a potential virtue of affirmative action into a vice. If there is one feature of affirmative-action programs that favors their constitutionality, it is that they grow out of the democratic process: the choice of a majority of a State’s residents to create race-conscious admissions preferences at their public universities not to benefit a majority race but to facilitate the educational opportunities of disadvantaged racial minorities. Such democratically enacted programs, like all democratically enacted laws, deserve initial respect in the courts, whether the particulars of a program satisfy the Fourteenth Amendment, see Grutter v. Bollinger, 539 U.S. 306, 343 (2003), or violate it, see Gratz v. Bollinger, 539 U.S. 244, 275–76 (2003).

Yet this lawsuit turns these assumptions on their head. Democracy, it turns out, has nothing to do with it. Plaintiffs insist that the Fourteenth Amendment’s guarantee of “equal protection of the laws” imposes two new rules on the policy debates surrounding affirmative action in higher education. Rule one: States not only may establish race-conscious affirmative-action programs, but they must do so to comply with the Fourteenth Amendment. Rule two: even if the Fourteenth Amendment does not mandate that States establish affirmative-action programs at their public universities, it bars them from eliminating such programs through amendments to their constitutions.

SECOND UPDATE: Just a quick clarification on the line up in this case. Judge White was originally nominated to the Sixth Circuit by President Clinton but never confirmed. She was later renominated by President Bush as part of a deal with Michigan’s Senate delegation under which they agree to drop their opposition to one of Bush’s other Michigan nominees.

Former VC guest blogger and UCLA law professor Richard Sander is a political liberal who has done some pioneering work on affirmative action mismatch: essentially, if law schools (and other educational institutions) dip too far into the applicant pool to fill their diversity goals, many of the purported beneficiaries of preference policies wind up being academically uncompetitive with their peers. They ultimately wind up worse off than if they had been admitted to less prestigious programs where they would have been closer in skills and preparation to the median student. Sander’s policy recommendation based on his research are not terribly radical–schools should be somewhat less aggressive in their preference policies, and they should fully to disclose to the benefits of preference policies the success rates of past generations of students who entered a given program with similar credentials. “Informed consent,” if you will.

Sander, a Ph.D. economist, provides data that supports an inference that literally everyone in the legal academy already knows–that a great many students who are admitted as “diversity” admits wind up struggling in law school, leading to a much higher rate of failing out of law school and bar exam failure for such admits than for their white and Asian peers. Surely, if a key purpose of affirmative action is to aid these students one should be able to have a reasonable debate about whether the benefits of the policies as currently instituted outweigh the harms to their supposed beneficiaries, and, if so, whether reforms along the lines that Sander proposes would be a good remedy. Or perhaps law schools and related institutions would first open up their data to researchers to everyone could get a better handle on the underlying issues.

But current affirmative action policies are instead treated more like a religious obligation than like a debatable policy position. I’m guessing it’s especially harmful to be known as a liberal skeptical of current policies, because it’s always worse to be a heretic than a heathen.

Thus, Sander writes in a recent Denver University Law Review symposium: It is true that almost all legal academics are aware of the fireworks occasioned by my earlier research, but it is emphatically not true that the legal academy is engaged in any even-handed deliberation about the mismatch issue. Indeed, it would be more accurate to say that, at the major institutions of the legal academy–such as the Law School Admissions Council, the American Bar Foundation, and the American Association of Law Schools–it is considered extremely bad form to take the mismatch hypothesis seriously. If the topic of mismatch is brought up at all, it must quickly be cast aside in a tone both conclusory and dismissive. The determination to ignore the mismatch issue, and to ostracize those who think the problem is real, is manifest. How else can one explain why, in the six years since Systemic Analysis appeared, none of these institutions have released new data relevant to assessing the mismatch issue or the problem of minority bar passage? Why have none of them empanelled neutral social scientists to evaluate and report on the mismatch debate? On this issue, many otherwise distinguished academics have fostered an environment in which data is inaccessible and honest debate is profoundly chilled. Thus, I can think of at least one highly-regarded researcher in legal academia who lost a job, at least in part, for not regarding the mismatch issue with sufficient wariness. Other academics regularly tell me of their concerns about being punished professionally for engaging in mismatch research or even for investigating minority bar passage outcomes at their schools. One distinguished (and apolitical) academic offered to help me with mismatch research so long as his name was never attached to the work. I have many times been invited to give lectures or publish articles, only to have the invitations withdrawn when colleagues of the person making the invitation learn of it and protest. Indeed, the Stanford Law Review staff who published Systemic Analysis were pressured into publishing only critical response pieces, even though distinguished academics who (in article outlines submitted to the law review) offered more balanced assessments sought to participate.

It’s a good thing we don’t burn heretics at the stake anymore.

This unpopular: At Brown University, long known for being among the most politically correct universities in the country, and where Obama supporters outnumber Romney supporters by better than 9 to 1, only 35% of students think the university should consider race in student admissions or in faculty hiring. H/T Eric Muller, who provided a link to the poll via Facebook. I wonder if there is any other political issue in which the (official) views of the uber-elites–Fortune 500 executives and general counsels, university leaders, military leaders, elite law firms, and so on–is so greatly at odds with public opinion.

In the recent oral argument in Fisher v. University of Texas, and in his amicus brief on behalf of the United States, Solicitor General Donald Verrilli emphasized the military rationale for affirmative action. Without racial preferences in college admissions, we will not have an adequate supply of minority officers in the armed forces, which would undermine military efficiency. As the brief puts it:

Military leaders have concluded that an officer corps that is markedly less diverse than the enlisted ranks, and that is unattuned to the diverse perspectives of those they must lead, can undermine the military’s combat readiness. Fostering a pipeline of well-prepared and diverse officer candidates is therefore an urgent military priority. That military policy judgment reflects the lessons of actual battlefield experience during the Vietnam War when the disparity between the overwhelmingly white officer corps and the highly diverse enlisted ranks “threatened the integrity and performance” of the military.

The same argument played an important role in Justice Sandra Day O’Connor’s majority opinion in Grutter v. Bollinger, which ruled that racial preferences can be used to promote diversity in college admissions:

[H]igh-ranking retired officers and civilian leaders of the United States military assert that, “[b]ased on [their] decades of experience,” a “highly qualified, racially diverse officer corps … is essential to the military’s ability to fulfill its principle mission to provide national security.” Brief for Julius W. Becton, Jr. et al. as Amici Curiae 27. The primary sources for the Nation’s officer corps are the service academies and the Reserve Officers Training Corps (ROTC), the latter comprising students already admitted to participating colleges and universities. Id., at 5. At present, “the military cannot achieve an officer corps that is both highly qualified and racially diverse unless the service academies and the ROTC used limited race-conscious recruiting and admissions policies.” Ibid. (emphasis in original). To fulfill its mission, the military “must be selective in admissions for training and education for the officer corps, and it must train and educate a highly qualified, racially diverse officer corps in a racially diverse setting.” Id., at 29 (emphasis in original). We agree that “[i]t requires only a small step from this analysis to conclude that our country’s other most selective institutions must remain both diverse and selective.” Ibid.

This argument has an important kernel of truth. A nearly all-white officer corps commanding enlisted personnel who include a high percentage of racial minorities could easily lead to racial tensions that undermine military efficiency. This could potentially justify racial preferences in the military service academies, and for students at other institutions who plan to take part in ROTC. Minority officers admitted under such preferences might suffer a degree of stigma. But perhaps the tradeoff is worth it, at least if race-neutral admissions really would lead to a racially homogenous officer corps that could not relate to the ranks.

I’m not offering any definitive opinion on the issue of whether racial preferences in the military academies and ROTC programs are constitutional. But the case for them is at least serious and plausible.

Yet I don’t see how that argument justifies racial preferences in admissions to civilian institutions, where only a small fraction of the graduates will go on to become military officers. The Supreme Court in Grutter concluded that moving from preferences at military academies and ROTC programs to preferences at all “selective institutions” is just a “small step.” But it sure seems like a pretty big step to me.

Maybe the size of the step doesn’t matter if we are simply going to let universities decide for themselves which racial preferences are justified. But Grutter repeatedly emphasized that racial preferences adopted by state institutions must be subject to strict scrutiny, which includes a requirement of “narrow tailoring” to the “compelling state interest” the preferences are supposed to address. Even the liberal justices who argue that affirmative action programs should get less scrutiny than traditional discrimination against minorities still assert that it should be subject to “intermediate scrutiny” similar to that required of gender classifications. Intermediate scrutiny still requires a fairly close relationship between the size of the preference and the goal it serves. As Justice Ruth Bader Ginsburg explains:

The mere assertion of a laudable governmental purpose, of course, should not immunize a race-conscious measure from careful judicial inspection.... Close review is needed “to ferret out classifications in reality malign, but masquerading as benign,” Adarand, 515 U.S., at 275 (Ginsburg, J., dissenting), and to “ensure that preferences are not so large as to trammel unduly upon the opportunities of others or interfere too harshly with legitimate expectations of persons in once-preferred groups,” id., at 276.

And the military rationale for affirmative action simply can’t pass any kind of “close judicial inspection” if it is used to justify affirmative action in civilian institutions where only a small fraction of graduates will ever become military officers. At least not when schools have the obvious alternative of limiting such preferences to applicants who commit to joining an ROTC program.

In sum, I might well buy the military rationale for the University of Texas affirmative action program if UT were a military academy or if the vast majority of UT students were going to join ROTC programs. But for a civilian institution, it seems like a big stretch.

Today’s oral argument in Fisher v. University of Texas largely bears out what most observers expected. As Amy Howe explained on SCOTUSblog, the five conservative justices seem inclined to strike down the University of Texas’ affirmative action program, though not to completely overrule Grutter v. Bollinger, which allows the use of racial preferences to promote educational “diversity.” As I feared, it seems very possible that Justice Anthony Kennedy will conclude that the University of Texas cannot use explicit racial preferences because it has already achieved a “critical mass” of minorities by virtue of Texas’ Ten Percent Plan, which requires the university to admit anyone who is in the top ten percent of their high school class. This would be a very unfortunate outcome for reasons I discussed here. However, some of the conservative justices seemed skeptical of the very notion of a “critical mass,” as is evident from the following exchange with University of Texas lawyer Gregory Garre:

CHIEF JUSTICE ROBERTS: What is that number? What is the critical mass of African Americans and Hispanics at the university that you are working toward?

MR. GARRE: Your Honor, we don’t have one. And this Court in Grutter -

CHIEF JUSTICE ROBERTS: So how are we supposed to tell whether this plan is narrowly tailored to that goal?

MR. GARRE: To look to the same criteria of this Court in Grutter. This Court in Grutter specifically rejected the notion that you could come up with a fixed percentage. Now -

JUSTICE ALITO: Does critical mass vary from group to group? Does it vary from State to State?

MR. GARRE: It certainly is contextual. I think it could vary, Your Honor...

Later in the oral argument, Chief Justice Roberts complained that it was impossible to tell whether an affirmative program is narrowly tailored to the goal of promoting educationally beneficial racial diversity if that goal depends on achieving a “critical mass” and the University “won’t tell me what the critical mass is.”

Solicitor General Donald Verrilli (who appeared in defense of the program) even seemed to disavow the whole idea of “critical mass” in an exchange with Justice Scalia, claiming that the concept was overblown and had unfortunately taken on a “life of its own in a way that’s not helpful.”

In fairness, to Garre and Verrilli, Grutter created a difficult dilemma for them by, on the one hand, endorsing the idea of “critical mass” but on the other forbidding schools to pursue any numerical goals. But, as Justice Scalia points out, “mass assumes numbers.” The “critical mass” idea also has other flaws, such as the fact that it could justify racial and ethnic preferences for a nearly infinite range of groups, including Russians, Swedes, and sometimes even white males.

It remains to be seen whether key swing voter Justice Kennedy is also willing to dump the “critical mass” idea, and if so what he would replace it with.

A final interesting aspect of the oral argument is that some of the liberal justices seem interested in dismissing the case because the plaintiff, Abigail Fisher, lacks standing due to the fact that she has already graduated from another university and might not have gotten into the University of Texas even if it did not have any racial preferences. The conservative justices, for their part, were hostile to this standing argument.

This continues what I have previously described as a breakdown of traditional ideological positions on standing issues. It used to be that conservative jurists tended to favor restrictive standing rules, while liberal ones took the opposite view. But both sides seem to be changing where they stand on standing:

Traditionally, conservative scholars and judges have advocated narrow views of constitutional “standing”: the level of “interest” litigants must have at stake in the outcome of a case in order to give them a legal right to sue. For their part, liberals have usually promoted the opposite view....

This ideological division has been turned on its head in the current gay marriage and health care litigation. In the former, liberal litigants and interest groups have argued that the proponents of California’s anti-gay marriage Proposition 8 lack standing to appeal the district court ruling striking it down. For their part, conservatives have claimed that they do have “standing,” applying a broad definition of what counts as “material injury...” In the health care case, district judge Henry Hudson (a George W. Bush appointee) has ruled that the state of Virginia has standing to challenge the Obama bill’s “individual mandate” even though the mandate actually applies only to individuals and not state government. The liberal Obama administration and many liberal commentators such as Jack Balkin decried this ruling and argued that Virginia doesn’t have standing. This, despite the fact that Virginia’s standing could be defended under the broad interpretation of state government standing approved by the Supreme Court in Massachusetts v. EPA, the global warming case (much to the delight of most liberals).

Does this mean that liberals and conservatives are about to switch sides on standing? Possibly. But it is more likely that views on standing will no longer closely track ideological divisions. Nothing about conservative ideology as such necessarily requires narrow standing rules, and nothing about liberal ideology necessarily requires broad ones....

Over time, therefore, neither group is likely to advance a consistent position on the issue. Standing arguments will increasingly become a tactical gambit used whenever convenient, rather than a matter of principle.

The Fisher case is further proof of my thesis. If, as expected, the Court concludes that Fisher does have standing, that would be a good result. For reasons I discussed in this post, restrictive standing requirements are not mandated by the Constitution.