Wednesday, November 18, 2015

Diversity and Remediation

by Michael Dorf

In his NY Times column on Monday, Charles Blow began his discussion of recent campus activism over racial inequality with an apology of sorts: In the aftermath of the Paris attacks, the campus protests appear to have left the news cycle. Others--especially right-wing pundits--make the point much more ferociously. For example, in the immediate aftermath of the attacks, noted former NY Times Iraq War fabulist Judith Miller tweeted "Now maybe the whining adolescents at our universities can concentrate on something other than their need for 'safe' space." That view has been expressed widely by people who were inclined to see the campus activists as whiners even before Paris. How can they complain about an email about hypothetical offensive Halloween costumes when there are real human monsters killing people in Paris?

The complaint has a surface appeal, but only in the way that a parent chastising a child for failing to clean her plate while children on other continents go hungry does. Yet calling the campus activists whiners because they are not being shot to death by religious fanatics raises the bar on complaints impossibly high. Indeed, one might be inclined to turn the tables on the likes of Miller by asking: How, at a time like this, can she whine about students whining on campus? But that would be a cheap shot, so I won't take it. Accordingly--and without apology--I turn again to the campus unrest.

My latest Verdict column discusses what bearing the student protests have on Fisher v. University of Texas at Austin, now back at the Supreme Court for the second time. I acknowledge that one could take the recent protests as a signal that race-based affirmative action programs have failed to contribute to intellectual diversity in the way that was said to justify such programs in the Bakke and Grutter cases. However, I argue that this reading--seeing the protesters as insisting on their viewpoint as a matter of political correctness--misreads what is actually going on. The protesters are not hostile to viewpoint diversity. Instead, the underlying discrimination to which the protesters point is evidence that administrators and faculty must make greater efforts to promote diversity beyond admissions, by making minority students feel comfortable on campus.

Here I want to add a small but potentially important doctrinal point. Bakke and Grutter treat viewpoint diversity as a compelling interest sufficient to justify race-based affirmative action in college admissions, in the process rejecting a number of other justifications that have sometimes been offered. But the Court has long accepted that universities also have a compelling interest in remedying their own prior (or ongoing) acts of discrimination.

Bakke and other cases reject the idea that remedying past societal discrimination can be a compelling interest that justifies a race-based classification, but these cases acknowledge that a state institution can remedy its own discrimination. To be sure, there is some ambiguity about what that means. The strictest view would say that a state institution can only invoke a remedial justification for race-based affirmative action where there has been an adjudication of illicit racial discrimination. However, that view has never been endorsed by a majority of the Supreme Court, and it shouldn't be. State institutions should not be required to submit to litigation in order to undertake on their own to remedy their acts of discrimination. Properly understood, the case law (especially the Croson case) requires state entities to identify their own past or ongoing acts of discrimination in order to invoke a remedial justification for a race-based affirmative action program, but does not require them actually to be sued and lose.

Thus, in addition to the points made in the column, I would add this one: Insofar as the campus protesters point to ways in which current policies at public universities give effect to private racial discrimination, the universities might have a remedial basis for their race-based affirmative action programs. If less than a critical mass of minority students feel stigmatized, beleagured, and tokenized in virtue of their relatively small numbers, and if the university's culture is insufficient to combat those effects, then that suggests that a "critical mass" policy of the sort upheld in Grutter and defended in Fisher could be justified in remedial terms.

To be clear, the remedial argument is in addition to the diversity argument, which is sufficient by itself. But many critics of the Powell opinion in Bakke argue that it took the most compelling reason for race-based affirmative action off the table. I am suggesting that, at least in the current climate, perhaps it ought to be deemed back on the table.