Monday, January 24, 2022

Affirmative Action Proponents Concerned About the Cert Grants in the Harvard & UNC Cases Should Not be Reassured by California's Experience

 by Michael C. Dorf

Earlier today the Supreme Court granted review in two cases that pose the same question: "Should this Court overrule Grutter v. Bollinger, 539 U.S. 306 (2003), and hold that institutions of higher education cannot use race as a factor in admissions?" Recall that Grutter permitted the University of Michigan Law School to treat race as a "plus factor" in admissions, even as a companion case involving undergraduate admissions at Michigan rejected a fixed numerical score for minority applicants. Together, the cases converted what had been the de facto controlling view of Justice Lewis Powell in the 1978 Bakke case into the official doctrine. Cases since then have led to some sparring over the implications of the Grutter decision, but prior to the Trump appointments, the Court had adhered to the framework Justice Powell established.

But now potentially no more. To be sure, each of the two cases--one involving Harvard and the other involving the University of North Carolina--includes a second and narrower cert question that could enable the Court to invalidate the respective undergraduate admissions programs of each university without formally overruling Grutter. If you had asked me a year ago whether the Court would overrule Grutter and swiftly move to aggressively enforce a principle of "color-blindness," I'd have probably said no, the conservative super-majority would get there, if at all, in stages. That could still happen, but in light of the oral argument in Dobbs, the Mississippi abortion case, I'm now inclined to think that this Court won't be shy about anything. Within a year and a half, much of the landscape of constitutional law--from abortion to affirmative action to guns to the (lack of) deference owed administrative agencies--could look very different.

Because it appears that the Harvard/UNC cases will be scheduled for oral argument in the fall, there will be many more occasions for me and my co-bloggers to discuss them. For now I want to make one point: as the title of this blog post suggests, supporters of affirmative action should take little comfort from the experience of California since the 1996 ballot initiative Proposition 209, which banned race-based affirmative action in higher education (and other settings) in that state.

Why might affirmative actions's supporters be inclined to take any comfort from the California experience? Because Prop 209 did not doom efforts to maintain a diverse student body in the UC and Cal State systems. True, it limited those efforts, which is why in 2020, there was a ballot initiative (Prop 16) to repeal Prop 209, but it failed. Still, Prop 209's defenders say (e.g., here) that affirmative action proponents are a collection of Chickens Little: despite dire predictions, the sky did not fall after Prop 209. 

One can argue over the impact of Prop 209, but in doing so, it's important to note that California public universities have been operating in a different environment than we will see should SCOTUS overrule Grutter and insist on color-blindness as a constitutional requirement for public universities and as a statutory requirement under Title VI for all universities, including private ones like Harvard. (In the Harvard case, the Court could revisit the secondary holding of Bakke that Title VI entails the same test as equal protection, but that seems unlikely.) 

Since Prop 209 and similar measures in other states, colleges and universities have been taking race into account in admissions--just not quite so expressly as they previously did. Thus, a website that promoted Prop 209 repeal notes: "Banned from using race to decide on admissions, the University of California tried proxies, a list of 14 factors, such as census data, to identify poor neighborhoods and family income to identify underrepresented students . . . ." Other colleges and universities, even those not subject to formal bans on express consideration of race, consider it indirectly in other ways, as when prospective applicants are asked to write an essay explaining how their background and experience will contribute to the intellectual or other diversity of the student body.

The use of proxies and questions that likely elicit but do not inevitably elicit racial information probably satisfies Grutter. Such stratagems might or might not satisfy state bans like Prop 209, but so long as state officials and state courts are not themselves vigorously opposed to affirmative action, public colleges and universities in California and other states with bans have been able to mostly fly under the radar--arguably violating at least the spirit of the bans.

But now suppose a post-Grutter world. It is very easy to imagine that the same people who brought the lawsuits against Harvard and UNC would sue those and other colleges and universities that use nominally race-neutral admissions criteria with the ultimate goal of increasing racial diversity of the student body. And it is also easy to imagine that a Court that finds a mandate for color blindness in the Fourteenth Amendment and Title VI would also find that such circumvention efforts are themselves illegal. Meanwhile, in this not-all-that-imaginary future, it's also easy to foresee the Departments of Education and Justice in the next Republican administration looking very unkindly on circumvention.

Is all of that a certainty? No. Even Justice Thomas (in his Grutter dissent and elsewhere) has indicated that nominally race-neutral means (he discussed a lottery in that case) would be permissible means of attaining student-body diversity, even if such racial diversity were an educational institution's goal. So it's possible that a post-Grutter world will continue to allow winks and nods. As Justice Ginsburg observed in her dissent in the University of Michigan undergraduate case, it's not obvious that such lack of transparency is a virtue, but considering the alternative, that might soon be the best that proponents of affirmative action can hope for.