Monday, March 08, 2021

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

 By Eric Segall

Last Wednesday on this blog, I wrote about the efforts by Students for Fair Admissions (SFAA) to persuade the Supreme Court to rule that colleges and universities nationwide may not use race at all in their admissions decisions. SFAA is seeking review in the Supreme Court of the First Circuit's decision that Harvard University's admissions program does not unlawfully discriminate on account of race. Although the governing law pertaining to the use of race in university admissions stems from two decisions handed down the same day in 2003, both of those opinions effectively embraced Justice Powell's lone opinion in Regents of the University of California v. Bakke, the first Supreme Court case on the subject.

In Part I of this series, I detailed how Justice Powell applied strict scrutiny to all classifications based on race, even those designed to foster racial equality. He also rejected all of the asserted compelling interests--except the school's desire for educational diversity--advanced by UC Davis to justify its quota of 16 seats out of 100 for its entering medical school class. Powell's rejection of UC Davis' broader interests in combating generations of society-wide discrimination and wanting more people of color to join the medical profession has been affirmed by later Supreme Court cases and has resulted in much harm to the goal of reducing institutional racism. 

In this post, I will show how Powell's discussion of the narrowly tailoring prong of the strict scrutiny test has led directly to harmful judicial overreaching as well as incoherent legal doctrines in subsequent affirmative action cases. Should this conservative Court take the Harvard case, it will almost certainly make the use of racial classifications by universities even more difficult, or perhaps illegal completely, and that would be a grave mistake, greatly compounding the errors made by Justice Powell in Bakke. There will be time enough to discuss that problem if the Court grants the petition for the writ of certiorari. For now, it is important to understand where Powell went grievously wrong.

Justice Powell began his discussion of the narrowly tailoring prong as follows:

It may be assumed that the reservation of a specified number of seats in each class for individuals from the preferred ethnic groups would contribute to the attainment of considerable ethnic diversity in the student body. But petitioner's argument that this is the only effective means of serving the interest of diversity is seriously flawed. In a most fundamental sense, the argument misconceives the nature of the state interest that would justify consideration of race or ethnic background. It is not an interest in simple ethnic diversity, in which a specified percentage of the student body is in effect guaranteed to be members of selected ethnic groups, with the remaining percentage an undifferentiated aggregation of students. The diversity that furthers a compelling state interest encompasses a far broader array of qualifications and characteristics, of which racial or ethnic origin is but a single, though important, element. Petitioner's special admissions program, focused solely on ethnic diversity, would hinder, rather than further, attainment of genuine diversity.

It was Justice Powell, not UC Davis, that misunderstood the "nature of the state's interest" in educational diversity. Out of the 100 possible places in the medical school, 16 were reserved for members of traditionally disadvantaged groups. The remaining 84 seats were open to people possessing the "far broader array" of characteristics that UC Davis valued. In addition, the minorities accepted by UC Davis brought diversity beyond their race. Given that UC Davis represented to the Court that a small quota would most directly advance its compelling interest, it was improper for Justice Powell to suggest that the quota deprived the entire class of "genuine diversity." 

But it gets much worse. Justice Powell pointed to how Harvard University was using race in its admissions program at the time (and still does today) to strengthen his argument that UC Davis' plan was not narrowly tailored. He said the following:

In recent years, Harvard College has expanded the concept of diversity to include students from disadvantaged economic, racial and ethnic groups. Harvard College now recruits not only Californians or Louisianans but also blacks and Chicanos [sic] and other minority students. In practice, this new definition of diversity has meant that race has been a factor in some admission decisions. When the Committee on Admissions reviews the large middle group of applicants who are admissible and deemed capable of doing good work in their courses, the race of an applicant may tip the balance in his favor just as geographic origin or a life spent on a farm may tip the balance in other candidates' cases. A farm boy from Idaho can bring something to Harvard College that a Bostonian cannot offer. Similarly, a black student can usually bring something that a white person cannot offer.

First, equating the "farm boy from Idaho" with people of color is an offensive analogy. Farm boys from Idaho and their ancestors could eat at lunch counters in the south and attend the best public schools in their areas as opposed to the "black student" whose parents and grandparents were subject to apartheid and whose ancestors were brought to America on slave ships.

Second, although there is nothing illegal about the Harvard plan, that is a far cry from saying that avoiding publicly admitting exactly how much race counts is a constitutionally required pre-requisite for the use of race in admissions. In fact, to the extent one thinks it is proper to apply strict scrutiny to all uses of race in university admissions, if anything, the UC Davis plan was more narrowly tailored than Harvard's because of its heightened transparency. I cannot say it better than Justice Brennan did in Bakke:

Davis' special admissions program cannot be said to violate the Constitution simply because it has set aside a predetermined number of places for qualified minority applicants, rather than using minority status as a positive factor to be considered in evaluating the applications of disadvantaged minority applicants. For purposes of constitutional adjudication, there is no difference between the two approaches....The 'Harvard' program... as those employing it readily concede, openly and successfully employs a racial criterion for the purpose of ensuring that some of the scarce places in institutions of higher education are allocated to disadvantaged minority students. That the Harvard approach does not also make public the extent of the preference and the precise workings of the system, while the Davis program employs a specific, openly stated number, does not condemn the latter plan for purposes of Fourteenth Amendment adjudication... [T]here is no basis for preferring a particular preference program simply because, in achieving the same goals that the Davis Medical School is pursuing, it proceeds in a manner that is not immediately apparent to the public.

Justice Powell's no-quota rule Bakke is particularly pernicious because it led directly to driving the use of race in university admissions behind closed doors from 1978 until this very day. Even worse, the made-up no-quota rule has not stopped quotas. It has only prevented quotas that are publicly acknowledged by the universities that use them. 

In Grutter v. Bollinger, Justice O'Connor, writing for the majority, approved of the University of Michigan Law School's stated goal of admitting a "critical mass" of minority applicants. In practice, the way that works at most law schools is the Dean receives admissions reports throughout the season and at some point has to decide if a critical mass has been reached. If not, the Dean will instruct the committee to admit more minority students. That means there is a number or goal of minority students which Michigan will use every effort to reach. That is a quota. Yet, 'O'Connor wrote the following: 

Justice Powell’s distinction between the medical school’s rigid 16-seat quota and Harvard’s flexible use of race as a “plus” factor is instructive. Harvard certainly had minimum goals for minority enrollment, even if it had no specific number firmly in mind....What is more, Justice Powell flatly rejected the argument that Harvard’s program was 'the functional equivalent of a quota' merely because it had some ‘plus’ ” for race, or gave greater “weight” to race than to some other factors, in order to achieve student body diversity. The Law School’s goal of attaining a critical mass of underrepresented minority students does not transform its program into a quota.

Yes it does. There is a number below which a critical mass is not a critical mass and that number is the de facto quota. But even if that argument is not persuasive, in what sane world would the text and history of the Fourteenth Amendment justify a constitutional rule that making transparent a university's goals for diversity with reference to specific numbers is unconstitutional but desiring an unstated but still firm number of minority students is constitutional? The Court already decided student body diversity is a compelling interest. Why shouldn't a university be able to further that interest directly with specific goals that the public can see and debate as opposed to hiding its use of race from the public? There is no good answer to that question. 

The Court shouldn't be in this second-guessing business at all when it comes to racial classifications used by universities to further equality and make up for past inequality. As Justice Stevens once said in a different affirmative action case, there is a significant constitutional difference between a welcome mat and a no trespassing sign. Given that our country put up no trespassing signs for people of color for most of our history, and that it is highly unlikely that these metaphorical welcome mats will turn into no trespassing signs for whites in the future, the Court should review racial preferences designed to further educational diversity for general reasonableness, at least until institutional racism no longer haunts America. 

Tragically, we are not close to living in a country of equal opportunity for people of color. Judicial interference with university programs voluntarily designed by mostly white administrators to redress the effects of centuries of racial discrimination amounts to unnecessary and dangerous judicial hubris.


Joe said...

Diversity is a valid concern for education institution and there is probably a constitutional concern there as a matter of academic freedom and perhaps otherwise. This is a long tradition -- West Point, e.g., did not just try to get the "best and the brightest," but was concerned about a diverse national military.

Such diversity also should be open-ended as noted for instance by Sandy Levinson who is involved in the Balkanization Blog, where a person who comments here at times sometimes provides content. See, e.g., Levinson's collection "Wrestling with Diversity."

But, going back to my "round peg in a square hole" metaphor (or the other way around), it is correct to note that diversity alone isn't the core (and valid) concern here. Racial justice is. And, this is partially why other means of addressing the question, such as those who wish to use class, are problematic. Class and other things do matter. Nonetheless, race specifically does in this country.

Race is also specifically sensitive. Yes, mere academic talent is not the only thing sort out by college admissions. Still, race is not akin to sports scholarships in all ways either. The piece here deals with an approach that recognizes race conscious programs of some sort are valid but want to only go so far. The problem in practice often is that the difference is unclear. We see this, e.g., in ten percent programs. They turn out to be race conscious in application.

Justice Kennedy, for one, accepted race conscious programs but was worried about going too far. See, Parents Involved case. A particular approach here is let's say not to be so blunt -- try "diversity" or "goals" or take into consideration race while planning. But, blunt nose counting is seen as too much and too problematic in targeting the individual. (Verdict/Justia has a related discussion today by Prof. Sherry Colb on how to determine who is a Jew in Israel).

I'm somewhat sympathetic about the goals there but again Prof. Segall's discussion is likely on sound grounds to be pessimistic on how useful it is. And, what is the net result? More judicial micromanaging using round peg and square hole logic in practice since there is a general agreement race consciousness is compelled but "not too much." Again, this is probably more a case study, if a particularly sensitive one, than something just present in this area.

egarber said...

How tethered is all this to educational settings, vs something else? For example, suppose the state of Georgia required by law including race as a plus factor in police enforcement? And suppose the legislative history had a bunch of floor speeches along the lines of: “police should look like their communities.” Is the consideration of that as a compelling interest part of this line of cases, or something different?

egarber said...

Sorry. Not police enforcement. I mean make up of the police force.

Joe said...

The Supreme Court has decreased the allowable discretion, seeking more obtrusive court review, but still singles out a special concern for academic freedom. Basically, there is an independent First Amendment interest at stake that makes it easier for colleges.

[For instance, Fisher v. Texas noted with approval: "The academic mission of a university is a special concern of the First Amendment.”]

Over the years, people did argue diversity helps in general, including to "look like the community." In an earlier education case, Grutter, O'Connor noted:

"These benefits are not theoretical but real, as major American businesses have made clear that the skills needed in today's increasingly global marketplace can only be developed through exposure to widely diverse people, cultures, ideas, and viewpoints."

So, the general idea should go beyond schools. But, I'm not aware of the Supreme Court generally accepting that. In other contexts, affirmative action can be used to the degree necessary to avoid discrimination and in some cases as relief to proved discriminatory conduct. But, just to ensue the police reflects the community seems to run counter to Powell's position in Bakke.

I'm open to further comment though.