Why the Affirmative Action Cases Next Term Are Important

by Sherry F. Colb

Earlier this term, the Supreme Court granted review in cases challenging Harvard's and the University of North Carolina's (UNC's) affirmative action/diversity programs, Students for Fair Admissions v. President & Fellows of Harvard College and Students for Fair Admissions v. University of North Carolina. The Court did not have to take the cases. Grutter v. Bollinger and Gratz v. Bollinger held, less than twenty years ago, that race-conscious admissions policies are legal so long as they do not amount to quotas. Race, in other words, can represent one factor that schools consider in deciding whom to admit, but it cannot be the only factor for some designated fraction of the class.

Harvard, UNC, and other schools that practice race-conscious admissions have seemingly been doing more or less the same thing since Grutter and Gratz came down. The only new issue, at Harvard at least, is the fact that Asian American applicants appear to be absorbing much of the cost of affirmative action. Instead of preferring an African American candidate whose grades and scores are on average lower than those of a white student, Harvard allegedly leaves the white students alone and "subsidizes" the spaces for diversity admissions by rejecting Asian Americans with grades, scores, and other qualifications that substantially exceed those of both the white and the African American applicants.

However, with the exception of the second certiorari question in the Harvard case, the key issues before the Court appear to concern affirmative action itself in the classic Black/white context. And the Court's decision to grant review on the first certiorari question in each case--whether affirmative action violates the law--suggests strongly that the Court intends to say "yes, it does" full stop. Accordingly, notwithstanding the fact that affirmative action programs implicate African Americans, Asian Americans, Latino and Latina Americans, Native Americans, whites, and members of other groups, here I'll focus primarily on the Black/white dynamic that is likely to be front and center in the cases.

I support affirmative action, for all the reasons that you might expect. However, I understand that people of good faith can disagree about it. My concern here is something that goes a little beyond the question of college or law school admissions. One could believe that affirmative action is a bad idea, but that is not the question that the Court is entertaining. Lots of bad ideas are legally permissible.

For instance, spending hours on FaceBook is, for me, a terrible idea. I know that I never leave FaceBook with any of the following thoughts: (1) I'm so glad I spent time on FaceBook; (2) FaceBook makes me feel better about myself and my fellow humans; (3) Nothing on FaceBook offends me at all; (4) I benefited enormously from the "debate" I had with a stranger in the "comments" section of a friend's post because that is where people publish their ideas if they want to get maximum exposure; or (5) Knowing how many guesses it took various people I know to solve the day's Wordle enriches my life and encourages me to do better. And yet spending hours on FaceBook is perfectly legal.

The significance of declaring that affirmative action--by contrast to all other allegedly (or actually) bad ideas--is illegal is that it will effectively eliminate one way in which victims of discrimination can sue discriminators. I refer here to disparate impact litigation. Last month, Professor Dorf explained how the SCOTUS majority's hostility to the Voting Rights Act could portend the end of disparate impact litigation, thus bringing us closer to a possibility that Justice Scalia anticipated in his concurrence in the 2009 case of Ricci v. DeStefano. The affirmative action cases before the Court suggest real urgency.

At the moment, when an employer or a school hires or admits a disproportionately white workforce or student body relative to the applicant pool, someone who is not white can sue on a disparate impact theory. The idea in such litigation is that an employer or a school is using some test or other system to select employees or students and the test has the effect of screening out people of color. That is, even if no one was aiming at excluding people based on race, the screening tool that has the effect of excluding them violates the anti-discrimination law. If, however, the employer or school can demonstrate that the test or screening mechanism is in some way integral to selecting the best people, then the defendant will prevail in the lawsuit. Under this regime, a standardized test that barely correlates with success at work or at school and that screens out people of color could violate the anti-discrimination law, but a different test that separates the best from the rest could survive a lawsuit.

The Supreme Court's (pretty obvious) plan to declare affirmative action unlawful puts disparate impact litigation in jeopardy. If a school must not take race into account at all in deciding whom to admit, it follows that the Court believes there is nothing wrong with workplaces and schools that have almost no people of color. Why do I say that? Because affirmative action is a response to the role of hiring and admissions tests in creating a very disproportionately white workforce or student body. In other words, schools noticed that if they relied entirely on grades and test scores, they might not be able to admit very many underrepresented minorities. With affirmative action, schools made the decision to address the specter of a very disproportionately white workforce or student body by taking race into account. Another way of saying the same thing is to observe that employers and schools are themselves uncomfortable with the prospect of a nearly all-white workforce or student body and accordingly have taken steps to diversify the racial and ethnic makeup of the group. Affirmative action is also one way to avoid becoming a defendant in a disparate impact lawsuit.

If affirmative action is illegal, however, which it will likely be by the end of October Term 2022, then the critical perspective on a nearly all-white workforce or student body becomes illegitimate. There is, in other words, nothing presumptively wrong with a workplace or school that has admitted almost only white people. The only wrong is deliberate selection on the basis of race. Integration, in other words, is no longer something that we should all be striving for. To quote Chief Justice Roberts, "the way to stop discrimination on the basis of race is to stop discriminating on the basis of race." So long as exclusion is the known but not intended effect of measures used to screen people, everything is fine. 

To say it differently, disparate impact litigation and affirmative action are both measures that we take in response to the exclusion of people of color from the corridors of power. President Biden said he would and then did select a Black woman judge for Justice Breyer's seat on the Supreme Court because he noticed that the Court has never had a Black woman, and he regarded that "disparate impact" of whatever criteria people have been applying (and you can see this post if you believe that Donald J. Trump was selecting nominees on the basis of "merit") as a wrong. Even in the counterfactual world in which Presidents applied race-blind criteria to the selection process, President Biden concluded that it would be wrong for the Supreme Court to continue to be as segregated an institution as it is. 

The notion that only deliberate discrimination but not de facto segregation is offensive is a strange idea in our law. Most criminal laws treat purpose and knowledge as the same for purposes of mens rea. Whether you shot someone with the aim of killing them or you shot them knowing they would die but with some other aim (like making noise), you would, absent a justification, be guilty of murder. The reason is that the known impact of what you do is something we do and should generally hold you responsible for. And producing a segregated workplace or a segregated school, one that has few or no people of color, is something that the employer or school a) would know because it is obvious and therefore (b) is responsible for. But the Supreme Court, when it comes to race, is so fixated on intent that it elevates the right of a white person not to be modestly disadvantaged by the existence of affirmative action over the right of an African American applicant to be part of an existing and powerful community. 

This warped way of thinking has been in evidence for a while now. Many African American defendants must go to trial with an all-white jury so long as the prosecutor did not intentionally select for an all-white jury. Having a racially diverse jury is somehow an afterthought, with the main event being a prohibition against deliberately taking account of race. And of course, we have the fiasco that is our Voting Rights Act disembowelment on the altar of lies about voter fraud. As long as someone can articulate a non-racial reason, the exclusion (or cracking and packing) of African Americans becomes magically acceptable.

If affirmative action constitutes impermissible race discrimination, which the Supreme Court will very likely hold it does, then the existence of disparate impact can function only as evidence of evil intent. If no one meant for Harvard to admit almost exclusively white students and it just happened, then there is nothing to see here. Hostility to affirmative action thus entails hostility to disparate impact litigation. The idea is that wherever everyone finds themselves in our society, so long as there is no evil discriminator (which includes a practitioner of affirmative action because the law that grew out of slavery and Jim Crow must be race-blind), there is nothing to sue about. Schools that use a test that does little to select the best people can continue to use that test even if it selectively advantages whites. And the same schools can do nothing to remedy the disparity other than trying different tests to see which one produces diversity (a process that the Court may tolerate but which is really an exercise in pretextual behavior).

My view is that a nearly all-white workplace or student body is undesirable, no matter how well intentioned the employer or the admissions office. If one agrees with this proposition, then one will at least tolerate affirmative action (even if it isn't one's first choice approach), and one will affirmatively support disparate impact litigation. It is plain that at least five and probably six members of our current Supreme Court view a nearly all-white workplace or school as unconcerning. And we will all experience the fruits of their indifferent formalism, even as they go about destroying the many doctrines that protect us from harm in other areas of the law.

Oh wait, except for religious freedom. They will happily protect the right of Christians to exemptions from anti-discrimination law, viewing disparate impact there--a Christian who must serve a same sex couple or treat such a couple with respect--as intolerable. We now know (if there was ever any doubt) what matters to this Supreme Court.