The Volokh Conspiracy

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.

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.

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.

From the transcript:

MR. GARRE: If you look at the admissions data that we cite on page 34 of our brief, it shows the breakdown of applicants under the holistic plan and the percentage plan. And I don’t think it’s been seriously disputed in this case to this point that, although the percentage plan certainly helps with minority admissions, by and large, the — the minorities who are admitted tend to come from segregated, racially-identifiable schools.
JUSTICE ALITO: Well, I thought that the whole purpose of affirmative action was to help students who come from underprivileged backgrounds, but you make a very different argument that I don’t think I’ve ever seen before. The top 10 percent plan admits lots of African Americans — lots of Hispanics and a fair number of African Americans. But you say, well, it’s — it’s faulty, because it doesn’t admit enough African Americans and Hispanics who come from privileged backgrounds. And you specifically have the example of the child of successful professionals in Dallas.
Now, that’s your argument? If you have -you have an applicant whose parents are — let’s say they’re — one of them is a partner in your law firm in Texas, another one is a part — is another corporate lawyer. They have income that puts them in the top 1 percent of earners in the country, and they have -parents both have graduate degrees. They deserve a leg-up against, let’s say, an Asian or a white applicant whose parents are absolutely average in terms of education and income?
MR. GARRE: No, Your Honor. And let me -let me answer the question.First of all, the example comes almost word for word from the Harvard plan that this Court approved in Grutter and that Justice Powell held out in Bakke.
JUSTICE ALITO: Well, how can the answer to that question be no, because being an African American or being a Hispanic is a plus factor.
MR. GARRE: Because, Your Honor, our point is, is that we want minorities from different backgrounds. We go out of our way to recruit minorities from disadvantaged backgrounds.
JUSTICE KENNEDY: So what you’re saying is that what counts is race above all.
MR. GARRE: No, Your Honor, what counts is different experiences
JUSTICE KENNEDY: Well, that’s the necessary — that’s the necessary response to Justice Alito’s question.
MR. GARRE: Well, Your Honor, what we want is different experiences that are going to — that are going to come on campus -JUSTICE
KENNEDY: You want underprivileged of a certain race and privileged of a certain race. So that’s race.

UPDATE: To clarify, I’m not suggesting that UT lost the case because of this exchange, I’m suggesting that this exchange shows that UT lost the case.

I have little to add to my previously posted on thoughts on Fisher v. University of Texas, the major affirmative action case that the Supreme Court is about to hear. But here are some links to earlier posts on the subject that might interest readers who follow the issue.

Here is my initial post about the Fifth Circuit decision that the Supreme Court is now likely to overrule.

In this post, I explained why the Fisher case poses a stark conflict between the “diversity” and compensatory justice rationales for affirmative action, and why the former is extremely dubious. I also highlighted the Texas affirmative action program’s dubious treatment of Asian-American applicants.

In February, I described my fear that the Fisher case could turn out to be a Pyrrhic victory for affirmative action opponents if the Court ends up invalidating all or most explicit affirmative action, but endorses “race-neutral” subterfuges such as the Texas Ten Percent Plan, which are often worse than traditional affirmative action. Such an outcome is also likely to reduce the transparency of affirmative action policies, for reasons I discussed here.

Most recently, I described why the originalist case for affirmative action is a lot weaker than proponents believe.

Overall, I think the Court should probably strike down the Texas plan. But I have serious concerns about the reasoning that it might adopt in reaching that conclusion. And I do not believe that it should categorically forbid all affirmative action policies, especially those genuinely aimed at compensating victims of past racial injustice.

The Supreme Court is hearing oral arguments in the Fisher v. University of Texas case tomorrow morning, so I thought I would republish here the essay I wrote for Scotusblog a while back:

I recently attended a panel discussion on Fisher v. University of Texas at an academic conference.  Each panelist began his remarks by acknowledging America’s increased ethnic diversity.  Yet the remarks focused almost entirely on the perceived benefits (or lack thereof) of affirmative action preferences for African Americans, and the perceived justice (or injustice) of disadvantaging or inconveniencing whites to provide those benefits.

America’s other racial and ethnic groups were ignored.  There was nary a mention, for example, of Hispanic Americans, who are now more numerous than African Americans and are the primary beneficiaries of affirmative action at the University of Texas-Austin, where they outnumber blacks by more than four to one.  Also ignored were Asian Americans, who constitute around six percent of the U.S. population and who are significant losers from race-conscious university admissions policies, but who benefit from racial preferences in other contexts, such as contracting set-asides.

The panel was no anomaly.  Public debate over affirmative action revolves almost entirely around the issue of preferences for African Americans.  This is not surprising, given that affirmative action was initiated in the 1960s to serve the “compensatory justice” rationale of redressing historical oppression of African Americans, counteracting generalized discrimination against them, ensuring the existence of African-American role models, and the like.

In the 1978 Bakke case, however, Justice Lewis Powell rejected the idea that racial preferences by state universities are constitutionally permissible on compensatory justice grounds.  Rather, he claimed that such preferences were lawful only if used to promote “diversity” among the student body, a rationale reiterated by Justice Sandra Day O’Connor for a five-to-four majority in the 2003 Grutter case.

So universities must publicly declare that their only interest in affirmative action is to ensure a diverse student body, and they have created internal bureaucracies dedicated to the diversity ideal.  Nevertheless, and despite the fact that African Americans are a shrinking minority of those eligible for affirmative action preferences, the underlying ideological justification for affirmative action preferences, especially on university campuses, remains to redress past and present discrimination against African Americans.  (And, to put my own cards on the table, like most academics I find this rationale much more persuasive than I find the diversity rationale. Few law professors, at least, really think that the primary justification for university affirmative action programs is that they make campus life more interesting for white students.)

Enter Fisher v. University of Texas.  Fisher disrupts the debate over the constitutionality of affirmative action because it represents the first affirmative action case to reach the Supreme Court in which (a) there is no plausible case that racial and ethnic preferences are necessary to achieve “diversity”; and (b) those most affected by the affirmative action preferences at issue are not blacks and whites, but Hispanics and Asians.  Therefore, neither the diversity rationale nor the social justice rationale has the force in Fisher they have had in previous cases.

In this recent SCOTUSblog post on the upcoming Supreme Court case of Fisher v. University of Texas, David Gans and UCLA law professor Adam Winkler take conservative originalist opponents of affirmative action to task for ignoring originalism in their arguments against the constitutionality of racial preferences for minorities. They particularly single out Supreme Court Justices Clarence Thomas and Antonin Scalia, who have taken a hard line against affirmative action in their opinions, but have never provided any evidence that this position is consistent with originalism. Gans and Winkler also argue that originalism in fact supports the constitutionality of affirmative action because “[t]he same elected officials who wrote and endorsed the constitutional amendment guaranteeing the equal protection of the laws to all persons also enacted several measures embodying ‘racial preferences.’” The latter argument builds on the work of previous academic defenders of affirmative action, such as Yale law professor Jed Rubenfeld.

Gans and Winkler are right to criticize Scalia and Thomas for neglecting originalism in their affirmative action opinions. But they are wrong to assert that originalism clearly supports their own side of the affirmative action debate. Without exception, all of the nineteenth century “racial preferences” that they cite are federal laws, such as the Freedman’s Bureau programs intended to aid recently freed slaves. But the text of the latter part of Section 1 of the Fourteenth Amendment, the provision at issue in affirmative action litigation, only applies to state governments: “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.” [emphasis added].

Beginning with the famous case of Bolling v. Sharpe (1954), the Supreme Court retroactively applied the Amendment’s restrictions on racial discrimination to the federal government. But no one imagined that the amendment applied to the federal government at the time it was enacted. Therefore, the framers and supporters of the amendment could well believe that the federal government had the power to enact racial preferences that would be banned by Amendment if adopted by the states. Nor were they completely unreasonable in accepting this double standard. The framers of the Amendment hoped that the federal government would continue to be controlled by (relatively) pro-black Republicans and therefore could be trusted with the power to use racial preferences. By contrast, they did not have similar faith in the states, particularly the southern states where most white voters were unrepentant ex-Confederates and supporters of slavery.

In addition, as co-blogger David Bernstein points out, the racial preferences adopted by the federal government in the Reconstruction era were intended to help alleviate the massive injustices inflicted on recently freed slaves. This compensatory justice rationale for racial preferences is far different from the “diversity” rationale offered by the University of Texas to justify its racial preferences. The diversity rationale has very different implications from the compensatory justice theory, and could potentially justify preferences for a wide range of groups. In the Texas case, as David notes, many of its beneficiaries are the children of recent Hispanic immigrants who never experienced the kind of large-scale systematic discrimination suffered by American-born blacks (to say nothing of that endured by one-time slaves in the 19th century). Even if the framers and ratifiers of the Fourteenth Amendment would have been willing to allow state governments to engage in compensatory justice preferences for African-Americans, it is highly unlikely that they would have endorsed diversity preferences. After all, the dominant ideology viewed cultural diversity with suspicion and pushed immigrants to assimilate as quickly as possible.

Moreover, it seems unlikely that the overwhelmingly white (and to a large extent, still racist) electorate of the 1860s would have supported ratification of the Amendment if they had thought that it allowed state governments to discriminate in favor of blacks and against whites, while forbidding the reverse. Today, the dominant version of originalist theory is “original meaning” originalism, which holds that the Constitution should be interpreted as understood by the general public or the ordinary reader at the time of enactment (as opposed to “original intent” – the understanding of the political elites who drafted the document). It is improbable that the average member of the general public who supported the Amendment understood it to mean that states were empowered to discriminate in favor of racial minorities in ways they could not discriminate in favor of whites.

The above does not prove that adherence to originalism requires judges to strike down all affirmative action preferences by state governments. But it does undercut the standard originalist case for them. At the very least, originalist judges would have to review such policies with considerable suspicion.

UPDATE: Co-blogger David Bernstein made some related points in this post. There is some important overlap between his argument and mine. But I have let this post stand nonetheless, because it also raises some points that David didn’t address.

UPDATE #2: I have updated this post slightly to make clear that it is the text of [the latter part of Section 1] of the Fourteenth Amendment (which includes the Equal Protection Clause and the Privileges or Immunities Clause) that only applies to state governments. Some other parts of the Amendment (e.g. – Section 1 which gives citizenship to all person born in the United States, and Section 3, which bans some former Confederates from serving in Congress) also constrain the federal government. But [the latter part of Section 1] is the provision relevant to affirmative action.

UPDATE #3: In my previous update, I foolishly confused the text of the second sentence of Section 1 of the Amendment with Section 2. I apologize for this error, and have now corrected.

My contribution to Scotusblog’s symposium on Fisher v. Texas can be found here. An excerpt follows.

Public debate over affirmative action revolves almost entirely around the issue of preferences for African Americans. This is not surprising, given that affirmative action was initiated in the 1960s to serve the “compensatory justice” rationale of redressing historical oppression of African Americans, counteracting generalized discrimination against them, ensuring the existence of African-American role models, and the like.

In the 1978 Bakke case, however, Justice Lewis Powell rejected the idea that racial preferences by state universities are constitutionally permissible on compensatory justice grounds. Rather, he claimed that such preferences were lawful only if used to promote “diversity” among the student body, a rationale reiterated by Justice Sandra Day O’Connor for a five-to-four majority in the 2003 Grutter case....

Nevertheless, and despite the fact that African Americans are a shrinking minority of those eligible for affirmative action preferences, the underlying ideological justification for affirmative action preferences, especially on university campuses, remains to redress past and present discrimination against African Americans. (And, to put my own cards on the table, like most academics I find this rationale much more persuasive than I find the diversity rationale. Few law professors, at least, really think that the primary justification for university affirmative action programs is that they make campus life more interesting for white students.)...

Fisher disrupts the debate over the constitutionality of affirmative action because it represents the first affirmative action case to reach the Supreme Court in which (a) there is no plausible case that racial and ethnic preferences are necessary to achieve “diversity” [because Texas's matriculants were about 40% "minority" without racial preferences]; and (b) those most affected by the affirmative action preferences at issue are not blacks and whites, but Hispanics and Asians.

....

Fisher represents the first racial preferences case to come before the Supreme Court in which African Americans are not the primary intended beneficiaries, and whites are not the only, or even the primary, group who will be put at an official disadvantage by university policies.

Texas has argued that it should be able to engage in preferences to bring the demographics of its undergraduate class closer to the demographics of the state. Under that standard, while African Americans and Hispanics were “underrepresented” under Texas’s race-neutral admissions policies, Asian Americans were and remain wildly overrepresented. Asian Americans constitute only 3.5% of the Texas population, but are about five times that percentage of undergraduate students at UT-Austin.

As a result of the university’s attempts at racial and ethnic balancing, among enrolled students who have been admitted under race-conscious criteria Asian Americans have not only needed significantly higher SATs and GPAs than have Hispanics and African Americans, but have also needed higher scores than whites.

As the Hispanic and Asian populations of Texas continue to grow, assuming Asian Americans continue to outperform other groups academically, the only way for UT-Austin to achieve a “balanced” class will be to favor the former at the expense of the latter....

So, unlike every race/ethnic affirmative action case to reach the Supreme Court, where the underlying conflict has been primarily black‑white, Fisher represents the affirmative action of the future, where Hispanic Americans, the largest government‑defined minority group in the country, are the primary beneficiaries, and another large and growing group, Asian Americans, suffer the most harm.

....

In short, despite all the diversity talk necessitated by Supreme Court precedent, the primary underlying justification for affirmative action preferences has always been the felt need to redress the exclusion of African Americans from mainstream American life through hundreds of years of slavery, Jim Crow, and discrimination. UT policy, by contrast, while also favoring African-American applicants, primarily pits ones group composed mostly of post‑1965 immigrants and their children against another, with no apparent justification beyond the blunt political fact that Hispanics are a much larger voting constituency in Texas.... In the long run, the only way to save affirmative action preferences may be to limit them to their original primary intended beneficiaries, African-American descendants of American slaves.

Affirmative action isn’t exactly an issue that brings people together across ideological lines. It’s a divider, not a uniter. But there is considerable cross-ideological agreement on one point: if we are going to have racial preferences for minorities, it’s better to be transparent about it. In the recent SCOTUSblog symposium on the upcoming Fisher v. University of Texas Supreme Court affirmative action case, both Vik Amar (a defender of affirmative action), and leading critics Rick Sander and Stuart Taylor seem to agree on this point. Amar points out that there is no good reason why opaque racial preferences should be considered more constitutionally permissible than transparent and clear ones, despite some previous Supreme Court decisions suggesting that possibility. Sander and Taylor are more unequivocal in advocating transparency:

The single most important step forward is to adopt a comprehensive system of disclosure. The Supreme Court could mandate that any university that wishes to take the race of students into account in admissions must make its system of preferences (including legacy and athletic preferences) and their consequences transparent both to applicants, to help them make more informed decisions, and to the public, so that researchers, legislators, the media, the courts, and all other citizens can evaluate the accuracy and completeness of the information provided to applicants.

Unfortunately, however, as Amar explains, the most likely outcome of this case is a decision that reduces transparency rather than increases it. That’s because key swing voter Justice Anthony Kennedy is likely to write an opinion striking down the University of Texas program in part because racial “diversity” is better attained through “race-neutral” mechanisms like the Texas ten percent plan, which requires state universities to automatically admit any Texas applicant who was in the top ten percent in their high school class. Although formally neutral, this plan and others like it were adopted for the specific purpose of changing the racial composition of university student bodies. Under this approach, universities are still adopting policies that deliberately favor some racial groups at the expense of others, but doing so in a less transparent way, where the magnitude and purpose of the preferences is harder to assess.

If this is the result of Fisher, it could well turn out to be a Pyrrhic victory for opponents of racial preferences in admissions. As I explained here, racial preferences will not disappear, and may not even diminish in magnitude. But they will become harder to detect and assess. Moreover, policies such as the ten percent plan have a variety of negative side-effects that are worse than those of traditional, explicit affirmative action.

Some conservative defenders of the ten percent plan nonetheless argue that it is morally superior to traditional affirmative action because it does not explicitly consider race as a factor in admission. However, this argument is dubious, for reasons I outlined in my very first post on the ten percent plan, back in 2006:

[I]f it is morally wrong to aim for a given racial balance in a state university student body by using explicit racial preferences, why is it not equally wrong to intentionally try to achieve the same effect through indirect, facially “neutral” means? In the days of Jim Crow, southern states often used facially neutral policies such as literacy tests, poll taxes, and peonage laws to disadvantage blacks. Few today would argue that these policies were somehow morally superior to those Jim Crow laws that discriminated against blacks through explicit racial classifications. If, as critics of affirmative action claim, explicit affirmative action preferences are morally wrong [and unconstitutional] for the same reason that Jim Crow laws were wrong, then “facially neutral” affirmative action systems such as the Texas ten percent plan are wrong for the same reasons that the facially neutral means of propping up Jim Crow were.

I can understand an argument that consistently opposes all affirmative action on the grounds that the government should not be in the business of favoring some racial groups over others. That’s the position of conservative justices such as Scalia and Thomas. I can also understand the opposite point of view: that affirmative action is justified for the purpose of promoting racial justice or diversity: the long-held position of most liberals. The conservative and liberal justices disagree about the bottom line merits of affirmative action; but they agree that courts should not favor secretive affirmative action policies over transparent ones. By contrast, it’s hard to see much logic behind the view held by key Supreme Court swing voters over the years, such as Justices Lewis Powell, Sandra Day O’Connor, and now possibly Justice Kennedy: that affirmative action preferences are wrong and usually unconstitutional if the government is clear and transparent about what it is doing, but perfectly fine if the preference is pursued through facially “neutral” means, despite the fact that the latter are intended to achieve exactly the same sorts of racially motivated results as the former.

My own view on affirmative action is that I don’t think the Constitution categorically bars affirmative action policies intended to promote compensatory justice, while I am simultaneously much more skeptical of those justified on the basis of promoting “diversity.” But whatever the justification for affirmative action, if the practice is constitutionally permissible at all it is better that it be open and transparent.

UPDATE: In the original version of this post, I accidentally forgot to include a link to my 2006 post outlining the flaws of the Texas ten percent plan. That mistake has now been corrected.

Prof. Mike Dorf has a post at Dorf on Law describing the brief he coauthored on behalf of the Association of American Law School in Fisher v. University of Texas.  The gist of the brief is that if the Supreme Court reasons that Texas may not engage in affirmative action preferences because its race-neutral ten-percent plan already created a “diverse” class, this could mean that all institutions of higher education, including law schools, that seek racial and ethnic diversity would need to replace their current admissions policies with a rote, percentage-based admissions system to comply with the Constitution and federal law.

The oddity is that law schools already mostly use a rote admissions system.  The brief argues in its introduction as follows:

To build excellent, diverse classes, law schools do not reduce any particular candidate to a number or a percentage.  Instead, following this Court’s guidance in  Grutter v. Bollinger, 539 U.S. 306 (2003), law schools evaluate each applicant’s record holistically, counting such academic factors as success in analytically demanding majors, intellectual curiosity and improvement over time, as well as such other factors as veteran status, work experience and hardships overcome.  A mechanical admissions process would render such criteria irrelevant.

The brief later elaborates on this point in great detail.  I really don’t know how Dorf and his co-authors can claim this.  It’s common knowledge that law school admissions at the vast majority of law schools comes down almost entirely to GPA and LSATs, with allowances for affirmative action preferences, relatives of generous alumni, and, at state universities, for politically connected applicants.  This was largely true even when I went to law school over twenty years ago, but concern over U.S. News rankings, which heavily weight GPA and LSAT, have made it even more so.

Let’s say you’re a Caucasian or Asian applicant to Podunk Law School, which is targeting a 162 LSAT and 3.5 GPA [update: Median, U.S. News only considers medians] this year.  You majored in Physics in Harvard, show great intellectual curiosity, worked at Los Alamos for five years doing top-secret research, grew up impoverished in Appalachia, and had a much better GPA toward the and of your college career than at the beginning.  Unfortunately, your LSAT score is only 160 and your GPA, though great for a Harvard Physics major, was only 3.27.

Meanwhile, your cousin is also applying to Podunk.  Her parents are rich, she attended a fancy private high school, she majored in Cultural Studies at a fourth-rate college,has  never has worked a day in her life, and never reads anything more intellectually serious than Cosmo.  But she managed to achieve a 3.52 GPA, and (with the help of Princeton Review and private tutoring) a 162 on her LSATs.

Your cousin is very likely getting in to Podunk, and you almost certainly are not.  I’m in no way defending this situation, which in fact is indefensible; but it’s the way it is.  (A few years back, Podunk would likely have offered you admission to its evening program, because U.S. News only counted full-time students, but that loophole has been closed.)

In fact, I thought the Supreme Court, if anything, got it backwards in Grutter and Gratz in approving Michigan Law School’s affirmative action policies, and invalidating the undergraduate preferences.  Law schools, even elite law schools like Michigan, generally don’t care about applicants’ athletic prowess, or musical talent, or anything beyond raw LSAT and GPA scores, making the claim  that their affirmative action programs are about “diversity” in the broad sense that Justice Powell intended in Bakke quite dubious.  By contrast, undergraduate schools really do strive to fill their sports teams and bands, nurture interesting but idiosyncratic individuals, get students from all over the country and the world, and so on, making their desire to also have racial diversity via affirmative action preferences seem much less likely to be based solely or primarily on non-diversity rationales the Supreme Court has found to be illicit.

In any event, the AALS brief describes an idealized law school admissions process that exists at few if any law schools (Yale, I think, has so many hyper-qualified applicants to choose from for its small class, and such an idiosyncratic process with significant faculty input, that it may come close).  Not surprisingly, the brief fails to cite any studies or data showing that law schools do, in fact,  consider “each applicant’s record holistically,” and I’m surprised that the AALS would put forth this idealized process as it were standard practice.  At best, the brief could honestly argue that an unfavorable decision in Fisher would prevent any law school that chose to deviate from the “rote” norm from doing so.

The Constitutional Accountability Center has filed an interesting amicus brief in the Fisher affirmative action case on behalf of six prominent law professor amici.  The brief tries to exploit a weakness in conservative Justices’ affirmative action opinions, which is that these Justices have almost entirely ignored the question of whether an originalist interpretation of the Fourteenth Amendment would allow for race-based legislation meant to advantage African Americans.  The brief therefore concentrates on showing that the same Congress that enacted the Fourteenth Amendment passed several race-conscious measures intended to aid African Americans, that these measures were denounced by opponents as class legislation, and that the same Congress rejected versions of the Fourteenth Amendment that would have explicitly banned race-conscious legislation.

I have neither the time nor inclination to check the brief’s citations.  So let’s assume that not just the brief’s facts but also the interpretation of those facts (e.g., in terms of which laws count as race-conscious) are accurate.  It nevertheless strikes me as only marginally helpful, at best, for at least two reasons.

First, unless I somehow missed it, every piece of race-conscious Reconstruction-era legislation mentioned in the brief is federal legislation.  None of the legislation in question grants authority to states to engage in race-conscious legislation.  In Fisher the underlying issue is whether a state university may engage in race-conscious admissions.  The authors not only don’t defend, but don’t even raise, the claim that the Reconstruction Congress thought that the same standards of race-neutrality should apply to the federal as to state and local governments.

And indeed, we know that Congress didn’t think that, because it passed a Fourteenth Amendment that applied only to the states, and did not deign to apply any sort of new equal protection standard to the federal government, which in turn was not covered by any explicit equal protection guarantee of the sort contained in the Fourteenth Amendment.  So I think the brief makes a  provocative case that perhaps the federal government should be subject to more lenient standards of race neutrality than the states, an argument that the Supreme Court itself has adopted at times, but abandoned in the Adarand case.  And while it’s true that the Court now holds that all levels of government are subject to the same equal protection standard, the black letter law is that the federal government is subject to the Fourteenth Amendment’s standards, and not the states to whatever standard the federal government should theoretically be held too.

Second, it strikes me that if I were to find the brief persuasive on the Fourteenth Amendment issue, it would only persuade me that all levels of government may at times engage in race-conscious legislation on behalf of African Americans.  But in a state like Texas, with a much larger Hispanic population than black population, the primary beneficiaries of affirmative action preferences are Hispanics.  The authors provide no evidence that the Framers would have allowed race-conscious preferences for groups other than blacks (and indeed, I believe that Mexican-Americans, the primary Hispanic group in Texas, were (a) in any event considered “white” under federal law and that (b) they were nevertheless subject to federal discrimination, not federal favoritism, at the time the Fourteenth Amendment was being enacted).

More generally, most “minorities” in the United States are not African Americans, with Hispanics outnumbering blacks, plus an additional six percent Asian Americans (who don’t usually benefit from admissions preferences–quite the opposite–but who are eligible for many other affirmative action programs), plus another several million Native Americans.  Even among African Americans, a significant percentage of the beneficiaries of affirmative action programs, especially on university campuses, are blacks who were never subject to American slavery because they or their ancestors immigrated from Africa or the Caribbean long after the Civil War.

So the CAC brief may provide originalist evidence that the U.S. government should be given more leeway in regard to race-conscious policies than the states get, and, more generously, may provide originalist evidence that even the states may engage in race-conscious programs that benefit the descendants of American slaves.  But I’m not persuaded that it’s at all helpful in showing that states may willy-nilly benefit any ethnic group it chooses at the expense of any other ethnic group, as, for example, University of Texas does in preferring Hispanic applicants (who are deemed “underrepresented”) and disfavoring Asian-Americans (who are deemed “overrepresented”).

UPDATE:  It’s also worth noting that many Hispanics are solely or primarily of European heritage, and about 50% identify themselves as “white” on census bureau forms. UT’s approach, in common with how preferences work in general,  is that a state university can and should favor white descendants of Spanish conquistadors or Italian immigrants to Argentina or Jewish Mexicans of Eastern European descent, solely because the former have Spanish-speaking ancestors.  (Indeed, the “diversity” rationale for affirmative action seems to demand such a policy. In Grutter, the district court found that Michigan L aw School gave preferences only Mexican American and mainland Puerto Ricans, but Michigan vigorously denied this, assumedly because it conflicted with the diversity rationale and suggested an illicit social justice rationale for its policies. Grutter’s attorneys didn’t pursue this point.)  So for the brief to be persuasive in defending UT’s policies, it seems to me it would need to persuade readers that the fact that the the Reconstruction Congress allowed for race-conscious federal legislation benefiting slaves and descendants of slaves somehow means that the same Congress would have endorsed state preferences based on linguistic heritage, regardless of race and regardless of whether the individuals received the preference or their ancestors had even been subject to de jure discrimination in the United States. That seem like quite a stretch.