an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Fisher v. University of Texas is a torso of an opinion, a seven-Justicecompromise that strongly suggests that a longer opinion either would not write or could not command five votes. Nevertheless, the opinion we have does have several interesting features:
1. A new gloss on the requirement of narrow tailoring. Fisher distinguishes between two questions. The first is whether diversity is a compelling interest for a state university; the second is whether an admissions program that uses race to achieve educational diversity is narrowly tailored.
On the first question, the courts will generally defer to university officials' belief that educational diversity is essential to the university's educational mission.
However, on the second, question--whether the university's use of race is narrowly tailored--courts will not defer to the university's views. In particular, courts will not defer to the university's judgment that no workable race-neutral alternative would achieve the benefits of educational diversity "about as well and at tolerable administrative expense." (Here Kennedy cites the 1986 plurality opinion in Wygant v. Jackson Bd. of Ed.)
This is important news, even if you think that this view was implicit in previous caselaw. If a race-netural approach would achieve the benefits of educational diversity not exactly to the same degree, but "about as well and at tolerable administrative expense," then the university may not use a race-based program. The judgement of adequacy of race-neutral alternatives will be made by a court, and although it will pay attention to the professional judgment of educators, the court will not simply defer to that judgment.
This means that universities will be pressed to prove that "ten-percent" plans and class-based or socio-economic-based affirmative action programs will not do approximately as well as programs that consider race as one factor. The question will not be only one of numbers, but also the kind of diversity produced and its effects on education. That question will be quite complicated, but the important point is that the university will have to prove its position to the satisfaction of federal judges, many of whom are by now quite hostile to affirmative action programs of all kinds.
2. Benign racial motivation in facially race-neutral programs. Note that these alternative programs may well be race-conscious in the sense that a goal of these programs is to promote racial and demographic diversity. (Justice Ginsburg's dissent emphasized this point particularly.) But these programs use facially non-racial means to achieve this goal. According to seven Justices in Fisher, this kind of program appears to be perfectly permissible, because it is the constitutionally preferable alternative to using race directly as a factor in admissions. That is also important news.
Why is it important news? Well, for some time conservatives have been attacking disparate impact liability rules on the grounds that they give employers and other actors incentives to take race into account in order to integrate workforces and achieve greater racial balance. This concern emerged prominently in Ricci v. DeStefano, in which Justice Scalia mused that the day might soon come when the Court had to decide whether laws that were formally race-netural but had the clearly race-conscious purpose to increase the number of minorities in the workplace violated the Equal Protection Clause because of that race-conscious purpose.
My colleage Reva Siegel has argued that taking Scalia's view seriously would seriously warp the Court's Equal Protection jurisprudence in Washington v. Davis and Personnel Director v. Feeney, which hold that facially neutral rules do not violate equal protection unless they were designed because of, rather than in spite of their harmful disparate effect on a racial group. It is not enough that a government program effectively disadvantages one race over another; one must show that this was the very purpose of the program.
The result of Scalia's theory in Ricci, Siegel has drily noted, would be that when formally neutral government action has the foreseeable effect of harming racial minorities, it is perfectly constitutional, because it was not deliberately designed to harm them. But when a formally neutral government policy has the foreseeable effect of increasing the number of minorities in an workplace or a university, it will be construed as being deliberately designed to harm white people, and therefore will be unconstitutional. That is, Scalia's gambit would suggest that most integrative efforts, even if formally race-neutral, are really designed to harm white people and are therefore unconstitutional.
Under this logic, even ten-percent plans and socio-economic affirmative action would be unconstitutional if it were clear that these plans were designed to increase the number of minorities in universities, which they clearly would be. Most conservatives clearly do not want to go this far, but a few have been willing to take the attack on disparate impact rules to its logical conclusion in the affirmative action context.
Fisher seems to put a stop to this line of reasoning, at least for the present. It suggests that, at the very least, Justices Kennedy, Roberts and Alito are not yet ready to announce that the state may not seek to integrate workforces and universities using race-neutral policies even if their underlying purpose is clearly race-concious.
Conservatives on the Court have generally been hostile to the idea that there can be racially benign purposes where formal racial classifications are concerned. All such classifications should be subject to the strictest scrutiny. However, most of them, including Justice Kennedy, have embraced the idea of benign racial purposes when the state uses formally race neutral methods. That is, these conservatives do not doubt that there is a difference between benign and invidious racial purpose-- they just oppose employing that distinction in the case of formal racial classifications.
3. Affirmative Action and Original Meaning. Justices Scalia and Thomas once again argue for a strict colorblindness rule, but, once again, neither attempts to square their views with the original meaning of the Constitution. The closest Justice Thomas comes is citing to Clark v. Board of Directors, an Iowa Supreme Court decision from June 1868. The problem is that Clark construes the Iowa state constitution (not the federal Constitution), and it appears to have been decided before the Fourteenth Amendment was officially ratified in July 1868.
Instead of resting on the original meaning of the Fourteenth Amendment, Thomas rests on the original meaning of Brown v. Board of Education, arguing, much as he did in Parents Involved, that the opponents of affirmative action in higher education are like Thurgood Marshall and the NAACP, while the defenders of affirmative action in higher education are like the southern segregationists who sought to keep blacks out of all-white public schools. Or, as Thomas puts it "The University’s professed good intentions cannot excuse its outright racial discrimination any more than such intentions justified the now denounced arguments of slaveholders and segregationists."
I am not sure that Mike is entirely successful in showing that colorblindness was required by the original meaning of the Fourteenth Amendment, for reasons I will explain in a future post. There is just too much contrary evidence (for one thing, Thaddeus Stevens-- the major proponent of that position--would have been turning cartwheels at the prospect, which he was most decidedly not doing). Moreover, the conclusion does not seem to square fully with Mike's own approach to originalism, which looks to original methods and for a general consensus about what is protected by seemingly abstract rights provisions. But at least Mike is attempting to do the heavy lifting, and he should get kudos for that. Scalia and Thomas, by contrast, armed with very talented law clerks each Term, have not yet been willing to employ their favored method of interpretation to one of the most salient issues in contemporary constitutional law. Perhaps they will do so in the next case. Or perhaps they will simply continue to treat race as a very large exception to their originalist approach.