Why Affirmative Action is not Intentional Discrimination Barred by the Constitution

 By Eric Segall

On Wednesday of last week, Professor Colb blogged about the two affirmative action cases, one involving Harvard and the other the University of North Carolina at Chapel Hill ("UNC"), that the Court will decide next year. Her excellent post predicted that the Court will hold all racial preferences illegal both under a federal statute prohibiting race discrimination in private organizations that accept federal funds (Title VI) and under the 14th Amendment. These likely holdings may also have a serious impact on the disparate impact theory of racial discrimination that is still in play for statutory cases under several federal civil rights laws. Her fear that the Court may hold disparate impact liability unconstitutional is well-founded and scary. In this post, I want to discuss a core problem with the Court's current and likely future skepticism about the constitutionality of affirmative action.

One of the most important Supreme Court cases in history is Washington v. Daviswhere the plaintiffs were applicants to the District of Columbia police force who claimed that the civil service examination used by the force had the effect of discriminating against African Americans in violation of equal protection. Justice White, writing for majority, said that the government is only subject to liability under the Constitution's equal protection requirement in race cases for those acts that are motived by an intent to discriminate on the basis of race. The policy considerations underlying this holding were substantial (whether they are persuasive I'll leave for another day). The majority opinion said the following:

A rule that a statute designed to serve neutral ends is nevertheless invalid, absent compelling justification, if in practice it benefits or burdens one race more than another would be far-reaching and would raise serious questions about, and perhaps invalidate, a whole range of tax, welfare, public service, regulatory, and licensing statutes that may be more burdensome to the poor and to the average black than to the more affluent white.

Okay, let's accept that judgment and apply it to the affirmative action context. In most cases challenging racial preferences in university admissions, white or sometimes Asian plaintiffs allege that they are unconstitutionally being discriminated against because a school uses race as a factor in making admissions decisions. To prevail under the Washington v. Davis standard, the unadmitted plaintiffs must show that the school engaged in intentional discrimination. Under Davis and its progeny, this intent can be demonstrated through circumstantial evidence (a smoking gun is not required). But at the end of the day, before the plaintiffs can prevail, they must show discriminatory intent.

Both UNC and Harvard's enrollments are a mix of whites and people of color and no one is precluded from admissions because of their race. In the Harvard case, the district court judge made the explicit finding in its 130-page opinion that, "Harvard values and pursues many kinds of diversity within its classes, including different academic interests, belief systems, political views, geographic origins, family circumstances, and racial identities. This interest in diversity and the wide-ranging benefits of diversity were echoed by all of the Harvard admissions officers, faculty, students, and alumni that testified at trial." 

Harvard, like most schools, desires diversity across many different criteria, including race. But the plaintiffs in most affirmative action cases cannot show that the schools in question are intentionally excluding people because of their race. In other words, there are no credible allegations in the normal case that a university looks at an admissions file and says, "that person is white, or black, or brown, so we don't want them." That is simply not how it works. Instead, race is often used as one factor among many to admit a diverse class. The motivation for using racial criteria is not racial discrimination but a sincere desire to build the best class possible which includes genuine racial diversity in the class.

The Court has not wrestled with the following question: why does a school's decision to use race as one factor among many others, including criteria such as alumni status, donor status, athletic ability, or being the first person in your family to go to college, amount to intentional discrimination under the Davis standard? Harvard's and UNC's intentions are in a very real sense the opposite of intentional discrimination--the goal is inclusion not exclusion. Using race as plus factor, as the Michigan law school did in Grutter v. Bollinger, or using race "as a factor of a factor of a factor" as the University of Texas did in Fisher v. Texas, does not amount to intentional discrimination on the basis of race because the totality of those admissions processes were motivated by a desire for racial integration, not racial segregation. In the case of the University of Texas, which was all white until the middle 1950's, making sure the campus is now diverse is just not the same thing as an intent to discriminate against whites. And absent such a showing, the University is not violating the Constitution under the Davis opinion.

It is true that for a while now the Court has held that all racial classifications get strict scrutiny, which is the reason the Court struck down Virginia's ban on interracial marriages in Loving v. Virginia. But because Virginia allowed the marriage of people of different races other than Whites and Blacks, and given Virginia's history of formalized racial segregation and discrimination, the Court also found that the purpose of this law was to maintain white supremacy. There is no reasonable argument that Harvard, Texas, Michigan or UNC are trying to establish racial superiority or inferiority of any kind. All three schools are simply trying to build a diverse class. These cases should be deemed by the Court to fall into that category of strict scrutiny where, as Justice O'Connor used to say, the review is "strict in theory, but [not] fatal in fact." 

The Harvard case is different than most because the suit was filed by a public interest organization representing Asian Americans who clearly have to have higher test scores and GPA's on average than Whites, Blacks, or Hispanics. And if Harvard only admitted students based on test scores and GPA's, and deliberately altered its criteria for Asians (or any ethnic group) perhaps the plaintiffs could show intentional discrimination. But as the judge found in the Harvard case, the college's admissions program gives weight to numerous factors other than test scores and GPA. Alumni status is likely the largest factor and for the class of 2022, 36% of the entering freshmen were children of alumni.

Needless to say, there will be far more Whites than Asians or Blacks represented in the group of legacy admits. Why isn't the use of legacy admits illegal under Title VI in Harvard's case or under the 14th Amendment in UNC's case? The answer is that Harvard, and most schools, take legacies because of a well-founded belief that such students are likely to be future donors or their parents are already donors. In other words, even though these schools know that using this criterion will result in more whites than people of color being admitted, the motivation is not to admit more whites but to raise more money for the school, and that motivation does not violate the Davis test.

Similarly, Harvard, UNC, and the University of Texas do not use race as a factor to maintain racial superiority of any kind, like in Loving, nor are these admissions programs motivated by a desire to discriminate on the basis of race. To the contrary, these schools desire more racial diversity not less, and whites (and Asians) are represented enough on these campuses to rebut any presumption that these schools are intentionally discriminating against them.

Do public universities discriminate against non-legacies or non-varsity athletes by using legacy status and athletic ability as reasons to admit some students? In one minor sense, of course, any criterion a university uses to distinguish applicants could be called discriminatory as to those who do not satisfy that criterion. But in a more important sense universities have no choice but to discriminate in this sense when building a class. They can't accept everyone. So the precise legal question is not whether the use of race by colleges and universities is discriminatory like the old policies used by many places of higher education to completely exclude an entire race from the school, but whether the use of race as one factor among many is proscribed by constitutional text or history. The answer should be no.

Justice Thomas is fond of arguing that the Constitution does not speak to legacy status or to athletic or musical ability but that it does speak to race. But the reality is that the word race is nowhere mentioned in the text of the equal protection or privileges or immunities clauses, and as many scholars have shown, the 14th Amendment's original meaning was concerned with helping formerly enslaved persons, not placing limits on how the government could help those freed persons. Neither text nor history supports the invalidating of affirmative action plans which result in diverse classes and are not adopted to hurt a particular race.

Washington v. Davis requires a showing of intentional discrimination before a plaintiff may make out an equal protection violation. The plaintiffs in affirmative action cases cannot make that showing because it is simply not true that this country's colleges and universities are intentionally discriminating on the basis of race. Rather, they are trying to build diverse classes to benefit all of the students attending those schools. In other words, there is a difference between schools using racial criteria to admit students from groups that have been traditionally discriminated against in a way that does violate the Constitution and employing racial criteria to improve the diversity of the class (and in the real world, to make up for generations of invidious discrimination). Not all uses of racial criteria should be deemed by the Court the equivalent of intentional racial discrimination of the kind prohibited by the Constitution.

Alas, as Professor Colb pointed out, the outcomes of next year's affirmative action classes are not much in doubt. And, assuming she is right that the Court will strike down Harvard's and UNC's admission programs, it will not pause to reconcile those results with Washington v. Davis, something that would be very difficult to do.