SCOTUS Repeated Relisting of a Case on the Meaning of Race Neutrality--and a Plug for my new Article

Last year, in the course of severely curtailing race-based affirmative action in higher education (and likely in other contexts too), the majority opinion of Chief Justice Roberts in Students for Fair Admissions (SFFA) v. Harvard appeared to throw admissions officers a bone. Although they could no longer consider an applicant's race per se, they could give weight in evaluating admissions essays to an "applicant’s discussion of how race affected his or her life, be it through discrimination, inspiration, or otherwise."

Is that a viable loophole? If a selective college or university makes a good-faith effort to measure applicants' experiences of race (but not race itself), and the result is a racially diverse class, will that create a risk of liability when the same groups that waged a successful decades-long battle to end expressly race-based affirmative action inevitably sue, arguing that the defendant institution is really just using experience of race as a proxy for race?

More broadly, is the experience-of-race essay "race-neutral" within the meaning of the prevailing case law? What about other mechanisms for increasing or maintaining racial diversity, including mechanisms that are undoubtedly facially race-neutral--such as "percentage plans" of the sort long used in Texas and elsewhere (and recently included in a bill passed by the Wisconsin legislature)? If a state adopted a facially race-neutral law or policy with the purpose and effect of disadvantaging members of a racial minority group, that would be presumptively invalid; the Court's cases say that the same strict scrutiny applies to all racial classifications; hence, one might think that percentage plans and other facially race-neutral efforts are vulnerable to legal challenge.

The issue is hardly theoretical. In May of last year (i.e., before SFFA was decided), the U.S. Court of Appeals for the Fourth Circuit rejected just such a challenge to an admissions policy change for a selective magnet school in Fairfax County, Virginia. The plaintiffs filed a cert petition in August of last year, and following responsive briefing, the case was distributed to the Justices for their conference on December 1 of last year. Since then it has been re-listed half a dozen times, including for the conference on Friday of last week. The Court could grant or deny cert as soon as tomorrow morning when it releases its orders list.

Why all of the re-listing? One possibility is that the Court intends to deny cert but one or more Justices are working on a lengthy dissent from the denial of certiorari. Another--more nefarious--possibility parallels what apparently happened with the Dobbs case, which was continually re-listed so that the Court wouldn't  overturn the constitutional right to abortion in the same Term in which Justice Barrett was appointed. Perhaps the Court has already decided to grant review in the Fairfax County case but is waiting to ensure that it isn't argued until next Term, so that it doesn't appear to be reaching out to gut affirmative action's substitutes so soon after SFFA. I leaned towards this latter view until recently; however, cases granted in the last few weeks are already being scheduled for next Term, so one would have expected a grant already if the Court is simply delaying.

Whether the Court grants cert in the Fairfax County case tomorrow, at a later date, or not at all, eventually the Justices will need to clarify the permissibility of facially race-neutral means of increasing or maintaining racial diversity. Are such means doomed?

Not necessarily. Two main lines of argument are available to defend such programs, and both rely on what I call "ideological jujitsu" in a forthcoming article in the Texas Law Review: Race-Neutrality, Baselines, and Ideological Jujitsu After Students for Fair Admissions. Ideological jujitsu uses arguments previously used by conservatives to liberal ends (and vice-versa).

During the period before SFFA, it was chiefly conservative opponents of expressly race-based affirmative action who pointed to the Texas percentage plan and similar facially race-neutral selection criteria, claiming that their effectiveness at increasing or maintaining racial diversity demonstrated that expressly race-based programs were unnecessary and therefore unconstitutional (as not narrowly tailored). In that era, liberals frequently responded that these programs were de facto (and intentionally) race-based, in no small part because they leverage residential segregation. Now the valence has flipped.

Part of my article thus explains how to use the assumptions embedded in the conservatives' prior statements to defend the proposition that, despite the Court's talk of "symmetry" in equal protection, at least when it comes to facially race-neutral selection criteria, there is a difference between aiming at increasing or maintaining racial diversity, on one hand, and invidiously discriminating, on the other. My arguments to this effect aren't entirely novel. They complement a similar set of arguments previously made by other scholars, including most recently by Prof. Sonja Starr in the Stanford Law Review. I think these arguments are persuasive but I'm not fully confident that a majority of the Supreme Court will agree.

Thus, the core of my new article develops a second set of arguments that the Fourth Circuit opinion in the Fairfax County case hints at but does not elaborate: many of the key facially race-neutral selection mechanisms are unproblematic because even on the assumption that the purpose of increasing or maintaining racial diversity counts as race-based, they do not have a disparate impact; true, they may disparately impact one racial group or another relative to the status quo ante, but that's not the relevant baseline. The Fourth Circuit makes this point, saying that plaintiffs failed to prove that the proper measurement is "before and after," but it’s opinion does not explain why that isn’t the right baseline.

My explanation uses ideological jujitsu to invoke Palmer v. Thompson--in which SCOTUS infamously permitted Jackson, Mississippi to close its public swimming pools rather than desegregate them on the ground that doing so did not adversely affect Black residents more than white ones. While I point to other problems with Palmer, I explain why it is a key source for rejecting the status quo ante baseline. I also invoke statutory anti discrimination cases, which say the same thing.

For more, read the paper! Here's the link again. And here's the abstract: 

Before the Supreme Court’s 2023 ruling that equal protection and Title VI bar expressly race-based plus factors in higher education admissions, many critics of affirmative action had pointed to facially race-neutral admissions criteria (such as guaranteed college admission for high school graduates near the top of their classes) as lawful alternatives that resulted in substantial racial diversity and thus rendered expressly race-based criteria unnecessary. This Article argues that diversity’s proponents can deploy “ideological jujitsu” to re-purpose their opponents’ prior claims. It explains that there remains room in the law to distinguish benign from invidious purposes with respect to facially race-neutral practices. Nevertheless, recognizing the conservative judiciary’s potential hostility to that distinction, the Article practices ideological jujitsu by redeploying Palmer v. Thompson, 403 U.S. 217 (1971), in which the Court infamously allowed Jackson, Mississippi to close all of its public swimming pools in the face of a desegregation order. Although the Palmer Court was wrong to see the particular impact as race-neutral, it was right about one extremely important point: the correct baseline for measuring disparate impact is not whatever policy happened to precede the challenged practice. Cases involving statutory disparate impact do not provide a one-size-fits-all definition of the proper baseline, but they make clear that the racial distribution that preceded the challenged practice is not, merely in virtue of its prior use, the right one. The Article also explains that if one recognizes racially disparate stigma as the real flaw in Palmer, the argument against a status quo ante baseline does not carry with it the disturbing implication that adoption of race-neutral means to achieve invidious ends is lawful.