Wednesday, March 03, 2021

Institutional Racism, Affirmative Action, and Judicial Hubris: Part I

 By Eric Segall

The pernicious and negative consequences of centuries of slavery, segregation, and formalized legal racial discrimination are still all around us. As I detailed here, institutional racism pervades our schools, police forces, governmental institutions, neighborhoods, and even our private markets. In my lifetime, just a few blocks from the law school where I teach, a hotel went to the Supreme Court arguing for the right to discriminate against people of color despite a federal statute prohibiting the same. Today, GOP legislatures in well over half the states are trying to deter people of color from voting. Just yesterday, the Court heard oral arguments in such a case. 

Against this backdrop of racism, educational institutions across the country now take account of race when selecting their incoming classes in order to achieve greater educational diversity that benefits people of all races. At the same time, a group called Students for Fair Admissions (SFAA) has been filing lawsuits attempting to prohibit public and private universities from taking race into account at all in their admissions decisions. These suits have challenged the use of affirmative action under the 14th Amendment's Equal Protection Clause as well as a federal statute (Title VI) that bars institutions receiving federal funds (virtually all colleges and universities) from  discriminating on the basis of race.

The Supreme Court will soon have to decide whether it will hear a lawsuit brought by SFAA against Harvard University seeking to end all use of race in university admissions. SFAA lost in the courts below, and last week filed a petition for certiorari seeking to have the Supreme Court reverse those decisions. This case is different from any the Court has heard before because SFAA is alleging racial discrimination against Asians, a traditionally disadvantaged group. But make no mistake, the effects of a ruling that racial considerations are off limits to admissions committees would seriously hurt Blacks and Hispanics and set back the efforts being made by universities nationwide to redress centuries of discrimination against all people of color. SFAA is surely thinking it will find a receptive audience among the six conservative Justices.

There will be plenty of time to discuss this specific case after Harvard files its reply to the petition. For now, it is important to appreciate how seriously misguided the Court's affirmative action doctrine is and why that is so. Although formally the crucial cases are two decisions decided the same day in 2003 involving the University of Michigan Law School and Undergraduate College, the real culprit is an opinion written and joined by only one Justice back in 1978. The man was Justice Powell, and the case was Regents of the University of California v. Bakke

Allan Bakke, a white applicant, challenged the decision by UC Davis to hold open 16 seats out of 100 at its medical school for traditionally disadvantaged groups. The California Supreme Court held that the quota plan was illegal and that race could not be used at all in admissions decisions. This was the first affirmative action case that the Court decided on the merits, and the Justices were sharply divided. Four Justices thought the plan was illegal under Title VI and explicitly refused to take a position on the constitutional issue. Four other Justices believed the program was legal under both the federal statute and the 14th Amendment. The key vote came down to one man.

Justice Powell voted to invalidate the quota program, saying the legal standards under the Constitution and Title VI were the same. He also, however, affirmed that race could be used in other ways, expressly pointing to how Harvard used race in its admissions decisions. He only wrote for himself on the 14th Amendment question so technically it was an opinion on behalf of only one Justice. Nevertheless, most of the country viewed his opinion as the law of the land, and 25 years later, five Justices in an opinion written by Justice O'Connor officially ratified Powell's views. That was most unfortunate because Powell's opinion was egregiously wrong in many different aspects. Revisiting those mistakes puts affirmative action in a more helpful context for the cases yet to come.

The first issue Powell confronted was what level of scrutiny the Court should apply to racial classifications intended to help, as opposed to hurt, disadvantaged groups. Ignoring the virtual universal exclusion of people of color from our nation's leading universities for most of our history, Powell applied strict scrutiny to UC Davis' admissions plan, saying that all racial classifications, regardless of why they were adopted, must be rigorously reviewed by the Court. There is a lot wrong in that holding but I'll accept it for purposes of this blog post. Under strict scrutiny, governmental practices will be upheld by courts only if they are in furtherance of a compelling state interest and the means are narrowly tailored to further that interest.

UC Davis set forth four interests that it believed satisfied strict scrutiny, and this is where Justice Powell's opinion went dreadfully astray. Those interests were the following according to Powell's opinion:

(i) reducing the historic deficit of traditionally disfavored minorities in medical schools and in the medical profession; (ii) countering the effects of societal discrimination; (iii) increasing the number of physicians who will practice in communities currently underserved; and (iv) obtaining the educational benefits that flow from an ethnically diverse student body.

Powell only agreed that the fourth interest was compelling, denying the other three, and to this day the Supreme Court has never retreated from that part of Powell's opinion. The rejection of those other interests, however, was dangerously wrong when Powell set it forth, and it is just as wrong now.

For most of this country's history, white people used both legal and illegal tools to create a caste society, and the Supreme Court played a major role in upholding and even fostering this caste system. In 1857, the Court stopped Congress from ending slavery in the territories. In 1883, the Court struck down federal laws making it illegal for places of public accommodations to  discriminate on the basis of race. In 1896, the Court upheld Louisiana's Jim Crow law requiring separate compartments on railroads for whites and blacks. That decision led directly to apartheid in our country. As Justice Thurgood Marshall said in his Bakke opinion:

In the wake of Plessy, many States expanded their Jim Crow laws, which had up until that time been limited primarily to passenger trains and schools. The segregation of the races was extended to residential areas, parks, hospitals, theaters, waiting rooms, and bathrooms. There were even statutes and ordinances which authorized separate phone booths for Negroes and whites, which required that textbooks used by children of one race be kept separate from those used by the other, and which required that Negro and white prostitutes be kept in separate districts.

After the Justices finally reversed separate but equal in Brown  v. Board of Education, the Court did almost nothing to enforce that decision. In Brown II, the Court said that desegregation would be left to local governments who had to comply with all "deliberate speed," which meant in practice none at all.  Almost ten years later, according to Gerald Rosenberg's great book The Hollow Hope, roughly 98% of children in 12 Southern states still attended 100% segregated schools. 

By the early 1970's, just a few years before the Bakke case was decided, the Court held that it was not the government's job to fix what it called de facto segregation, even though such segregation was quite obviously caused by government policies such as red lining that were intentionally designed to foster racial segregation. It is against this backdrop and many other cases where the Justices turned a blind eye to intentional racial discrimination that Powell's response to the asserted compelling interests has to be measured.

UC Davis argued that there was a depressing lack of people of color in both medical schools and the medical profession and it wanted to increase that number. Its modest plan for doing so was to insure there would be at a minimum 16 slots for disadvantaged minorities out of 100 spots. This was Powell's response:

If petitioner's purpose is to assure within its student body some specified percentage of a particular group merely because of its race or ethnic origin, such a preferential purpose must be rejected not as insubstantial but as facially invalid. Preferring members of any one group for no reason other than race or ethnic origin is discrimination for its own sake. This the Constitution forbids.

Universities across the country for generations had intentionally excluded all or most people of color and that evil system had only been dislodged about 15 years before Bakke was decided. That kind of across the board discrimination flatly contravened the purposes behind the 14th Amendment. Now a major state university wanted to make up for some of that lost time, and insure minimal representation for the excluded groups, and Powell's conclusory response was simply no, "that the Constitution forbids."

White people excluding people of color completely from higher education is simply not the same thing as mostly white people trying to increase the representation of people of color in those institutions. Whether or not such overtly focused efforts are good policy given backlash and stigma should not be the Court's business. The audacity of Justice Powell to prohibit a program that would still leave the medical school mostly white but used affirmative steps to make it more inclusive has been embraced by the Court ever since, and it is just wrong. Whites do not need unelected life-tenured Justices to protect their interests the way minorities do, and really what could be more compelling than trying to fix a system of white supremacy that had been in place from 1788 to at least 1964.

Powell's response to UC Davis' second asserted interest was more of the same. He asserted that educational institutions had no right to try and make up for societal wide discrimination. He argued that absent an official finding by a legislative, administrative, or judicial body, state institutions had no right to try and address the pernicious effects of racial discrimination by most of our country's institutions of higher learning. 

This idea in both 1978, and today, is absurd. The 14th Amendment does not mention race, but we know that its primary purpose was to help the newly freed slaves receive equal protection under the law.  But because Supreme Court decisions allowed states to deny the new freedmen (and women) the equal protection of the laws for decades after the Amendment was enacted, the promise of equal citizenship was never realized. And that promise of equality was foreclosed by white governmental officials intentionally excluding all or most people of color from the benefits and privileges available to white folks. The idea that the very same Amendment in 1978 precluded voluntary steps by white officials to make up for that sorry history is absurd both as a matter of constitutional interpretation and dead wrong as a matter of judicial policy. And it is an idea that has caused much incoherence in later affirmative action cases.

Justice Powell should have found that, of course, the UC Davis Medical School had compelling interests in redressing the paucity of minority students in medical schools and in combatting generations of officially sanctioned racial discrimination by both the state and federal governments. All governmental institutions should have that same compelling interest. Powell's opinion, however, was eventually adopted by the Court in cases inside and outside the educational context. This white-washing of American history by our nation's highest Court has played a major role in maintaining the institutional racism that still pervades American society. 

Justice Powell summarily rejected Davis' third asserted interest--that by admitting more people of color, underserved and poor communities would receive better health care. Powell said UC Davis hadn't met its burden of proof on this issue. This part of the opinion is also flatly wrong, but this interest would not have mattered had Justice Powell accepted either of the first two compelling interests.

Republican appointee Justice Harry Blackmun summed up the many problems with Powell's analysis with the following statement: 

I suspect that it would be impossible to arrange an affirmative-action program in a racially neutral way and have it successful. To ask that this be so is to demand the impossible. In order to get beyond racism, we must first take account of race. There is no other way. And in order to treat some persons equally, we must treat them differently. We cannot—we dare not let the Equal Protection Clause perpetuate racial supremacy.

Of course, Justice Powell did find that the interest in educational diversity was compelling but then held that the quota system UC Davis used to promote that interest was not "narrowly tailored." His discussion of that issue has caused enormous harm, and will be the subject of Part II of this post next week.


hardreaders said...

This is great, as always, and I'm looking forward to the future "Parts" implied by the title that will discuss the case in more depth.

SFAA is, of course, a front organization headed up by Ed Blum, who's been in the reactionary impact litigation game for almost 3 decades now, including the (in)famous Shelby County and Fisher I/II. Adam Mortara, Blum's right-hand man (emphasis on right) in the Harvard case, is a former Thomas clerk and ex-partner at Bartlit Beck. Mortara also does patent litigation, which makes for quite the interesting combo.

I'm fully on board with your arguments, but it seems like you also set up a bit of a paradox. First you say that you'll "accept [] for purposes of this [] post" the holding—one that you rightly condemn as erroneous—from Powell that strict scrutiny applies to any express consideration of race, even if done solely for helpful reasons. That obviously contrasts with the—far more sensible—approach that only invidious or harmful use of race triggers strict scrutiny. But right after you accept Powell's holding, you go on to argue why he erred in rejecting, inter alia, UC's interests (i) and (ii). To me though, both of those interests—compensating for historical minority underrepresentation in medicine and remedying societal discrimination—are simply instances of using race to help minorities. (I would also note that interest (i) just seems like a subset of (ii), although I get how strategically it made sense for UC to separate them and put (i) first.) So in my view, there's something of a conflict in arguing for interests (i) and (ii) while also purporting to accept Powell's holding. If (i) and (ii) are put forward as compelling, then you sort of have to attack the holding itself too—which again, I totally support doing. Of course, I understand that one (the holding) goes to applying the test itself, while the other (the interests) goes to analyzing one component of that test. But to me, they're just two sides of the same coin.

Along the same lines, Powell's statement that "[p]referring members of any one group for no reason other than race or ethnic origin is discrimination for its own sake" is either hopelessly naïve or just straight disingenuous. It suggests that, because invidious/harmful discrimination against minorities is premised on the idea that whites are superior—i.e., whites "prefer" members of their own race—then use of race for helpful purposes must likewise imply that minorities are "preferred" over inferior whites. But of course that utterly misses the point. It's entirely possible to implement AA while not also suggesting that one race is superior to or "preferred" over another. That some people either can't or won't understand this is strictly (no pun) their problem and shouldn't be a constitutional (and/or statutory) infirmity of AA programs. I'll give Powell the benefit of the doubt that he was a "can't", but Blum and his ilk are definitely in the "won't" category. (Also, it's getting a little ahead of future "Parts", but SFAA leans on this "preference" argument heavily; the word appears in the petition about 30 times!)

And naturally, once interests (i)-(iii) are kaput, the one left over, (iv), is the weakest of them all. Not only that, but it also obscures the much stronger interests and prevents them from being discussed in a straightforward way. So AA programs have been hobbling along with just one flimsy interest for more than 4 decades now.

Last, some of the opinion links are broken. It seems like you copied the Yahoo search links instead of the underlying LII and Justia URLs themselves. However, the Yahoo URLs don't work. You may want to fix that.

Joe said...

There is a sort of forcing a round peg in square hole problem here since institutions are stuck with a flawed opinion with a limited avenue to advance their goals. So, they have to focus on that, even to the degree it is honestly artificial and not totally aboveboard.

So, historical discrimination will in a "just saying, let's be honest" way is a factor in decision-making & it is cited somehow, but diversity has to be specific aim. This artificiality is then used by some to attack the limited approach.

I share the disagreement with the original opinion but as usual probably can find disagreement with the author around the edges to some degree. For instance, it to me is silly not the accept general social discrimination as a grounds.

But, we are stuck with the original which (maybe this will be covered in the follow-up) was then accepted by a full court in the 21st Century & then upheld if one of the Fisher cases. It was 4-3 though Kagan was recused and otherwise it would have been 5-3. This was after Scalia's death when the Republicans were concerned with letting the people vote before filling a spot. A rule selectively applied.

In Plessy v. Ferguson, the dissent said "let's be honest here" and it is helpful to be honest about what is going on here. The basic problem of square holes and such probably comes up in various instances so this is probably also a basic case study of judging that can be applied in other areas too.

egarber said...

Do we know if anybody has filed suit challenging diversity and inclusion polices at private companies? For very good and admirable reasons, companies are reaching out everywhere to create diverse workforces. And from there, inclusion as a cultural value is becoming more and more embedded in daily operations.

What would such a challenge look like? Something under Title 7 of the Civil Rights Act I assume? Seems ridiculous that a textual reading would stretch discrimination to mean general outreach and cultural values - but nothing would surprise me.

Unknown said...

How does Bostock fit into your analysis? Or is that line of employment law separate from what is involved here?

hardreaders said...


A quick Google search indicates that reverse employment discrimination lawsuits are not a new phenomenon. In fact, I'm seeing that EEOC devised standards to help employers address that issue in ... 1979.


I won't presume to speak for Prof. S., but it would seem like Bostock just doubles down on all the things in Bakke that are wrong. For one, it refuses to consider motive, so the very important invidious/altruistic distinction goes completely out the window. It also ignores the relevant historical context, such as what Marshall, J. discussed in Bakke. That said, I don't see it cited in the petition, but maybe it'll show up somewhere else.