The Volokh Conspiracy

As Ilya notes below, the Fifth Circuit has upheld the University of Texas’s racial and ethnic preference practices in Fisher v. Texas.

There are a number of interesting aspects of Fisher. One is that the University of Texas-Austin had a very “diverse” class without using preferences. Under the university’s previous, race-neutral system, which included the “10 percent” plan, Hispanic and African American students were a total 21.4% of the 2004 freshman class, and Asian Americans made up another 20% or so of the class. This made UT-Austin one of the most ethnically diverse elite universities in the country, and, one might think, substantially undermined the purported compelling interest in using preferences. [The university argued, and the court agreed, that it had the constitutional authority under Grutter to be concerned not simply with overall demographics, but with the demographics of individual programs within the university, and, indeed, individual classes!]

A second interesting aspect of the case is the light it shines on the diversity rationale for preferences in higher education. University officials are forced by Supreme Court precedent to publicly rely on the diversity rationale for affirmative action admissions preferences. But everyone in academia knows that the primary underlying ideological rationale for such preferences has been a desire to redress the exclusion of African Americans from mainstream American life through hundreds of years of slavery and Jim Crow. (Like Ilya, I have much more sympathy for this rationale than for the diversity rationale.)

By contrast, the primary beneficiaries of UT’s admissions policies are not African Americans, who are only about six percent of UT students, but Hispanics, who are more than three times as numerous (though African Americans did benefit more proportionally). And, as a brief filed by the Asian American Legal Foundation pointed out, the primary victims are Asian Americans, who constitute a mere 3.5% of Texas population, but about five times that percentage of undergraduate students at UT, and therefore are significantly “overrepresented” by the university’s logic. [And indeed, when the university admits students outside of the 10 per cent plan, and uses ethnicity as a factor, students of Asian ancestry need an average SAT score of 1322 to be admitted, compared to 1193 for Hispanics.]

So UT policy 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. To the extent that Hispanics disproportionately come from impoverished backgrounds, or from non-English speaking households, UT’s old, race-neutral system already took this into account by encouraging inquiry into an applicant’s socioeconomic background.

Meanwhile, many Hispanics are solely or primarily of European heritage, and about 50% identify themselves as “white” on census bureau forms. UT’s approach (supported by the Obama Administration), 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–I know people in all the latter categories–over a dark-skinned child of Vietnamese boat people, solely because the former have Spanish-speaking ancestors.

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.

It would be fascinating to see this case get to the Supreme Court.

In yesterday’s opinion in Fisher v. Texas, the US Court of Appeals upheld a University of Texas affirmative action program in admissions, applying the Supreme Court’s 2003 decision in Grutter v. Bollinger, which held that racial diversity in higher education is a “compelling state interest” justifying the use of racial preferences to ensure that there is a “critical mass” of minority students. There is a concurring opinion by Judge Emilio Garza that agrees with the majority’s application of Grutter, but also enumerates Grutter’s many shortcomings and urges the Supreme Court to overrule it. I think there is in fact a decent chance that the Supreme Court will take this case and either overrule or at least cut back on Grutter. Since 2003, Grutter author Justice Sandra Day O’Connor has been replaced by Samuel Alito, a justice unlikely to support the “diversity” rationale. Three other justices have been replaced by new justices whose views on affirmative action are similar to their predecessors’. Since Grutter was a 5-4 decision, the switch from O’Connor to Alito might determine its fate if the issue returns to the Supreme Court.

Fisher is particularly interesting in light of the fact that the Fifth Circuit upheld the program despite the fact that the Texas Ten Percent Plan (which gives automatic admission to any student who graduated in the top 10% of his or her high school class) had already significantly increased the percentage of black and Hispanic students at the University of Texas. In this 2006 post, I argued that the Ten Percent Plan is much more objectionable than traditional affirmative action, even though it is formally “race neutral.” Since then, new research has confirmed the anecdotal data I cited indicating that the ten percent plan creates perverse incentives for students to choose poor quality schools in order to increase their chances of getting into the top ten percent.

My own view of affirmative action is almost the exact opposite of that adopted by the Supreme Court in Grutter. I am skeptical of the diversity rationale embraced by O’Connor, but have a measure of sympathy for the compensatory justice rationale that she and the Court rejected. I outlined these views in more detail here, here, and here.

Unfortunately, I am going to be very busy over the next few days, so probably won’t have much opportunity to blog about this issue. But I did want to offer these few thoughts, and then leave the field open to others. Some of the other Conspirators have much greater expertise on affirmative action than I do, and I hope they will offer some commentary of their own.

NOTE: As longtime VC readers know, I clerked for Fifth Circuit Judge Jerry E. Smith, author of Hopwood v. Texas, the 1996 decision striking down an affirmative action program at the University of Texas Law School that Grutter and Fisher have superseded. Judge Smith wrote Hopwood several years before I clerked for him, and I don’t think this connection has any real impact on my view of the issue. Still, I thought I would point it out just in case.

From my days on the Fifth Circuit, I am also acquainted with Judge Garza, who is one of the smartest and best-prepared judges I have ever met. Whether it was appropriate for him to criticize a Supreme Court decision in his concurring opinion is a question I leave to others. I will note that Garza’s action is far from unprecedented. A number of other well-known federal judges have done similar things, including Richard Posner in State Oil v. Khan, where he successfully urged the Court to overturn an important antitrust precedent that he denounced as “”unsound when decided,” “moth-eaten” and “increasingly wobbly.”

Of the various radio and TV and internet items today related to MLK that I heard, the one that caught my attention most was an interview with Nichelle Nichols, who played Uhura on Star Trek.  I heard it on NPR, but here is a transcript from the Wall Street Journal Speakeasy blog.

It sounds like you put a lot of thought into the part. Why did you want to quit after the first season?

After the first year, Grace Lee Whitney was let go so it became Bill and Leonard. The rest of us became supporting characters. I decided to leave the show after the first season.

What convinced you to stay on?

I was at a fundraiser and the promoter of the event said there’s somebody that wants to meet you. He is your biggest fan. I stood up and turned to see the beatific face of Dr. Martin Luther King walking towards me with a sparkle in his eye. He took my hand and thanked me for meeting him. He then said I am your greatest fan. All I remember is my mouth opening and shutting.

What was that like?

I thanked him so much and told him how I’d miss it all. He asked what I was talking about, and told me that I can’t leave the show. We talked a long time about what it all meant and what images on television tell us about ourselves.

Did you know then how much of a role model you’d become?

Oh, god, no. I thought of it as a stepping stone to Broadway. I went back to Gene and told him what had happened, and that I was staying. He smiled up at me and said, thank god for Dr. Martin Luther King.

My feeling exactly.

Last month, retired Justice David Souter delivered the commencement address at Harvard.  His speech was a veiled challenge to proponents of originalism. Some commentators, such as Washington Post columnist E.J. Dionne, Slate‘s Dahlia Lithwick,  and TalkLeft’s Big Tent Democrat were impressed.  Others, not so much.

In today’s WSJ, Northwestern University’s John McGinnis and USD’s Michael Rappaport take issue with Justice Souter, suggesting he misunderstands original meaning jurisprudence and inadvertently justifies the jurisprudential methodology that produced such horrors as Plessy v. Ferguson.  Here is a taste:

At the recent Harvard commencement, retired Supreme Court Justice David Souter attacked what he regards as the “simplistic” model of giving the Constitution a “fair reading.” A judge, he said, must determine which of the conflicting constitutional values should become our fundamental law by taking account of new social realities. . . .

Justice Souter actually provided a primer on how not to be a judge. He made up a Constitution that never was to justify a kind of judicial power that was never intended. . . .

Justice Souter recognizes that his method of interpreting the Constitution is indeterminate, but he argues that it is necessary to put our trust in justices to reach just results. The historical reality is that this interpretive method permitted justices to create a Constitution of their own contrivance in the service of injustice.

One of the most common rationales for anti-discrimination law is that it is needed to protect unpopular minority groups against exclusion from jobs and other opportunities. This conventional wisdom has a significant weakness: If the group in question really is unpopular with the majority, a democratic government is highly unlikely to enact antidiscrimination laws protecting it. In order for such laws to be adopted, the majority of voters probably already has to believe that discrimination against that group is wrong. But if that is the view of majority opinion, then it is improbable that a legal ban on discrimination will greatly improve the status of the group. Most businesses and employers would likely adopt a nondiscrimination policy of their own accord, either because their owners agree with the majority view, or because competitive pressures force them to hire productive minority workers and serve paying minority customers even if they are personally hostile to the group in question. Or at least they will do so in the absence of the kind of government and private violence that constrained integration in the pre-1964 South.

Some, like George Will in his recent criticism of Rand Paul, argue that the Civil Rights Act of 1964 was an exception to this, and that it actually changed white public opinion, rather than followed it:

The simple fact is that in 1964, we, as a nation, repealed one widely-exercised right – the right of private property owners to serve on public accommodations whom they want – and replaced it with another right, that is the right of the entire American public to use public accommodations,” Will said.

“We were correct to do so and in the process, we refuted an old notion: that you cannot – and this may offend some libertarians – the notion was you cannot legislate morality. Yes you can,” Will said. “We did.”

“We not only got African-Americans into public accommodations, we changed the thinking of the white portion of the country as well,” he explained.

I. The Civil Rights Act Followed Majority White Public Opinion.

The truth is almost the reverse of Will’s statement. The Civil Rights Act was enacted in 1964 because “the thinking of the white portion of the country” had already changed over the previous 20-30 years. As Howard Schuman and his coauthors document in their comprehensive book Racial Attitudes in America, there was an enormous liberalization in white opinion on race from the 1940s to the 1960s. By 1963, one year before the enactment of the Civil Rights Act, 85% of whites polled in a National Opinion Research Center survey endorsed the view that “Negroes should have as good a chance to get any kind of job” and rejected the position that “white people should have the first chance at any kind of job” (endorsed by only 15%). This contrasts with 55% who said that “white people should have the first chance” on the same question in 1942 and 51% who said so in 1944.

Similarly, 73% of whites questioned in a 1963 NORC poll embraced the view that “Negroes should have the right to use the same parks, restaurants, and hotels, as white people.” The same 1963 study also showed that 79% of whites rejected the idea that transportation in streetcars and buses should be segregated, compared to 54% who had endorsed it in 1942 (both the 1942 and 1963 questions used the same wording). The 1963 figures probably overstate the actual degree of white support for integration and equal opportunity. But it’s hard to avoid the conclusion that white opinion had moved strongly in an integrationist direction relative to previous years, and that discrimination against blacks in employment and public accommodations was opposed by a majority of white voters by 1964.

Schuman and his coauthors show that white racial attitudes continued to move in a more liberal direction after 1964. But the enactment of the Civil Rights Act does not seem to have accelerated the pace of change.

None of this means that the Civil Rights Act was insignificant. Although national white opinion was generally favorable to integration by 1964, southern whites were still much more hostile. Moreover, southern businesses that wanted to employ black workers on an equal basis with whites and/or serve black customers in an integrated setting were often prevented from doing so by state law and government and private violence. On these fronts, the Act really did make a major positive difference. The South probably would not have desegregated anywhere near as fast without it.

II. Activist Government and Unpopular Minorities.

Nonetheless, the relationship between white public opinion and the Civil Rights Act does reinforce the point that a democratic government is unlikely to enact strong antidiscrimination laws to protect a group unless and until the majority of voters comes to oppose discrimination against it. It also underscores David Bernstein’s point that activist government is not in the interest of genuinely unpopular minority groups, as blacks were prior to the 1950s and Jews for much of American and European history.

When blacks were still despised by a majority of whites, both state and federal governments enacted numerous laws that not only permitted anti-black discrimination, but actually required it.

One might say that such laws don’t really make much difference, since the private sector would discriminate against unpopular minorities on its own. However, majority opinion is rarely monolithic. Jim Crow laws were enacted in large part because some whites were still willing to hire blacks on an equal basis with whites and run integrated public accommodations – either because they were more tolerant than the majority, or because they prioritized profit above prejudice. For example, nineteenth century southern streetcar companies preferred to operate integrated facilities and opposed Jim Crow laws, because they feared that segregation would reduce their profits. Similarly, as Robert Higgs documents, post-Reconstruction southern landowners found that they could not get away with paying black sharecroppers much lower wages than white ones without supportive government intervention that prevented them from competing up the wages of the blacks.

Given a high level of societal prejudice against a group, activist government often ensures that the level of exclusion and discrimination against the group is much greater than it would be otherwise. Bernstein and I discuss this point in detail in this article (esp. pp. 602-12).

In sum, antidiscrimination law can impose majority opposition to discrimination on a recalcitrant region such as the South in the 1960s. But it is unlikely to provide much protection for genuinely unpopular groups (“unpopular” in the sense that the majority of the voting population is hostile to them). Indeed, activist government is more likely to worsen the condition of such groups than improve it.

The firestorm kicked off by Rand Paul’s remarks has again rekindled the debate about the relationship between libertarianism, federalism, and efforts to combat racial discrimination. There is nothing unlibertarian about supporting federal efforts to combat racial discrimination by state governments. At the same time, however, libertarians (and others) should not assume that unconstrained federal power necessarily benefits oppressed minority groups.

I. Libertarianism and Federal Efforts to Combat Racist State Policies.

As David Bernstein explains, libertarianism is a theory of the relationship between individuals and government, not a theory of the relationship between different levels of government. Thus, there is nothing unlibertarian about one level of government (the federal) intervening to curb the racist oppression of another (state or local). Indeed, such policies actually promote libertarian ends to the extent that they prevent state or local governments from taking away the freedom of blacks or or other minority groups.

Not surprisingly, 1960s libertarians such as Ayn Rand did in fact favor federal action to curb discrimination against blacks by southern state governments. Rand, for example specifically denounced the use of “states’ rights” as justification for Jim Crow in several of her works in the 1960s. In Capitalism and Freedom, written in 1962, Milton Friedman criticized the Jim Crow policies of southern state governments and emphasized that “forced integration” of public schools was preferable to “forced segregation,” though he also argued that both could be avoided by adopting school choice policies. As David notes, many 19th and early 20th century antislavery and civil rights activists – including William Lloyd Garrison, Frederick Douglass, and many of the founders NAACP, such as Moorfield Storey – held what would today be considered libertarian views on economic and social policy. They saw no contradiction between that and favoring federal action against slavery and later Jim Crow. Neither should we.

At the same time, many (though not all) libertarians also tend to fear unconstrained federal power more than they fear the power of state and local governments. This is so for two reasons. First, federal oppression necessarily affects more people because it encompasses the entire nation. Second, people can “vote with their feet” to escape harmful state policies, as many Jim Crow-era blacks in fact did by fleeing to the less bad northern states. It is usually harder to escape federal oppression, which requires leaving the nation entirely.

Notice that the “foot voting” rationale for federalism requires federal suppression of state efforts to constrain the mobility of their citizens. Slavery, of course, was the paradigmatic example of a state policy intended to curb mobility. Even after the abolition of slavery, southern state governments adopted peonage laws (which Bernstein and I discussed here), restrictions on “emigrant agents,” and other legislation intended to force blacks to stay where they were. Federal suppression of these state policies is not only defensible in terms of general libertarian theory, but also in terms of the main libertarian rationale for federalism specifically. This is one of the key distinctions between competitive federalism and “states’ rights” that John McGinnis and I developed in detail in this piece.

II. Why Unconstrained Federal Power isn’t Necessarily Good For Minorities.

Despite the above, many still argue that libertarian support for decentralization of government power is at odds with efforts to combat racist policy. Conventional wisdom holds that history proves that the federal government is usually a friend to minority rights, while state and local governments tend to be more hostile. Thus, transferring more power to the federal government at the expense of the states is likely to be good for blacks and other historically oppressed minority groups.

This, however, takes far too rosy a view of the federal government’s historic treatment of minorities. I discussed this point at some length in a 2006 post. Here are a few relevant excerpts:

[I]t is certainly true that there were two periods in our history (roughly 1860-80, and 1940-70) when states’ rights claims were used to counter federal efforts to protect the rights of African-Americans against abuse by state governments. To the extent that such efforts were successful, they certainly represent an important cost of federalism.

However, the conventional story that federalism is bad for minority rights overlooks other, at least equally lengthy, periods in American history when a unitary federal policy would have been worse for minority rights than federalism. At the time of the Founding, a unitary policy on slavery would probably have meant a requirement that slavery be legal all around the nation, since all [but one of the] thirteen original states had legal slavery [in 1787]. During most of the antebellum period (roughly 1790-1860) proslavery forces had much more power in Congress and the executive branch than antislavery ones, and a unitary policy on slavery and/or the rights of free blacks at that time would probably meant a compromise far closer to the slave state laws of the day than the free state ones. In those areas where the federal government did have authority, it tended to use it to promote slavery more than to restrict it. For example, the federal government facilitated the recovery of escaped slaves through a series of Fugitive Slave Acts (which some northern states resisted on “states’ rights” grounds), and slavery was legal in the federally ruled District of Columbia until 1862....

During the post-Reconstruction Jim Crow era (roughly 1880-1940), a unitary policy on black rights would also probably have left blacks worse off than they were under federalism. At that time, southern whites cared far more about keeping blacks down than most northern whites cared about protecting their rights (and a significant minority of northern whites actually endorsed the southern position). Therefore, a unitary federal policy on black rights during this time would likely have led to a system slightly less restrictive than that which existed in the South, but far more oppressive than that which existed in northern and western states.... The absence of relatively more favorable policies in northern states would have prevented blacks from “voting with their feet” against the South, an option that millions took advantage of from about 1900 to 1960; moreover, if blacks could not vote in the North [as would probably have been the case under a unitary racial policy], the incentive of northern white politicians to support federal intervention against Jim Crow would have been greatly diminished, and the landmark federal civil rights legislation of the 1960s might not have come as soon as it did....

[T]he best window we have on what a unitary national policy on race would have been during this era is the way that the federal government of that period addressed racial issues in those policy areas that were incontestably under its control. For example, the District of Columbia was under complete congressional control, and it had the same kinds of Jim Crow policies as the South... The federal civil service was officially segregated under the [Democratic] Wilson Administration in the 1910s, and remained so under later Republican administrations. Federal immigration policy barred most nonwhite immigrants from entering the country under the Chinese Exclusion Act, the “Gentlemen’s Agreement” barring Japanese immigration, and other related legislation. Finally, federal control in overseas territories such as Puerto Rico, the Virgin Islands, and others, did not exactly result in enlightened racial policies there.

I would add that the largest and most important agency of the federal government in pre-New Deal America was the armed forces. And they were thoroughly segregated until 1948. The Marine Corps even excluded blacks completely until 1942. In addition, the federal government was also more involved than the states in oppressing American Indians and expelling them from their land.

Ideally, the federal government should have the power to eliminate racial discrimination by state governments, without having the power to engage in discrimination of its own and without being granted unconstrained authority to regulate other aspects of the economy and society. I don’t have the time or the space to argue for this view here; but I think the text and original meaning of the Constitution (including the Reconstruction amendments) very roughly approximates this ideal. Be that as it may, it has proven to be much more difficult to institutionalize this approach in a real-world political system than to set it down on paper.

State governments have enacted many oppressive and unconstitutional policies that harmed minorities. But the same can be said for the federal government. Libertarian writers have not come up with a foolproof way to maintain an optimal balance between federal and state power on these issues. Neither has anyone else.