Only in 1964, with the passage of the Civil Rights Act, did our nation extend full political equality to citizens of all races, concluding a long regime of racial segregation dating back before our nation’s inception. While a trove of issues implicating racial equality remain salient, modern debates over racial discrimination often focus on an institution alleged by some to be a form of “reverse discrimination:” affirmative action.
As Harvard College and the University of North Carolina battle Students for Fair Admissions before the Supreme Court, the constitutional fate of affirmative action, first recognized in 1978 in Regents of the University of California v. Bakke, hangs in the balance. Aside from, maybe, abortion, I can think of no issue where the line between personal beliefs and dispassionate legal analysis appears more blurred than in affirmative action. My goal is to explore the extent to which affirmative action jurisprudence is influenced by justices’ personal views of racial preferences, namely the material effects of affirmative action and the value of diversity.
To examine how the political and legal considerations are tied up, we must first understand the precedent. In a line of cases that followed Bakke, the Court has reaffirmed the constitutionality of affirmative action on the basis that achieving the benefits of a diverse student body is a compelling government interest. To pass the “strict scrutiny” test prescribed by classifications on the basis of race, a university’s admissions process must be “narrowly tailored” to this compelling interest — meaning that race must be one factor among many and universities must exhaust race-neutral alternatives before adopting racial preferences. Indeed, the Court explicitly rejected the “reparations” argument in Bakke, holding that remedying the effects of societal discrimination is too vague to constitute a compelling interest.
But this cuts against why I suspect many people support affirmative action: as a necessary instance of racial discrimination to counter the effects of centuries of anti-minority discrimination. Americans’ views on the issue are complicated: While 61% of Americans generally favored affirmative action programs for minorities in 2019, a separate survey found that 72% oppose giving Black candidates a boost in hiring decisions, even if it would increase diversity, and 73% in another survey said that colleges should not consider race or ethnicity in admissions. As Courtney Rozen of NPR sums up: “Americans broadly support the idea of affirmative action but oppose preferential treatment for minorities in college admissions.” Race neutrality is a powerful moral principle, and it seems logical that many Americans would find remedying our legacy of discrimination a sufficient justification to aberrate from it. While many may believe that diversity enhances the educational environment, it is fundamentally a pedagogical consideration — unlike the moral imperative inherent to arguments for reparations. Improving diversity thus may not represent as powerful an argument against race neutrality for many Americans.
This seeming mismatch between our legal doctrine and social intuitions gives us an opportunity to explore the dynamics of the Bakke decision. In the 5-4 opinion, the Court was split almost evenly — with four justices believing that Title VI of the Civil Rights Act categorically prohibits racial classifications and four believing that the university’s admissions process should pass muster even on the lower level of scrutiny employed in sex discrimination cases. The opinion that became law belonged to Justice Lewis Powell, the deciding vote, who agreed with the first bloc that the university’s quota system was unconstitutional but maintained that universities could use race as one factor in admissions.
I mention this to lead into the doctrinal murkiness of the meaning of the 14th Amendment. Many originalist justices, who ostensibly adhere to the original meaning of constitutional provisions, have held that the Equal Protection Clause proscribes racial classifications. But controversial Yale Law School professor Jed Rubenfeld makes a crucial point: A strict originalist view would lead justices to conclude that the 14th Amendment permits certain racial classifications. The 39th Congress, which framed the 14th Amendment for ratification by the states, passed a bill appropriating money for “destitute colored women and children.” The 40th Congress, which pushed southern states to ratify the amendment, passed a bill with an identical classification in addition to others awarding money to only “colored” soldiers of the Union Army. While this doesn’t set forth a constitutional standard for evaluating affirmative action, it would suggest that originalist justices cannot credibly hold that the Equal Protection Clause categorically prohibits racial classifications. Here, originalism seems to break away from the political intuitions of conservatives who oppose affirmative action. Is this evidence of outcome-motivated reasoning? The powerful caveat to this suggestion, Rubenfeld notes, is that this “correct” originalist perspective would likely conflict with the Court’s Brown vs. Board of Education (1954) reasoning because the original public meaning of the 14th Amendment would lead an originalist to conclude that segregated schools were a permissible racial classification. While some have tried to advance originalist arguments compatible with Brown, Rubenfeld notes that cases like it illustrate that there are very few absolute originalists.
My broad point is that, facing the question of the constitutionality of racial classifications, justices have vastly different answers, from categorical opposition to permitting affirmative action on a more relaxed tier of scrutiny. Are these all rooted in readings of the same text, history, and tradition? Insofar as judicial conservatives’ opposition to affirmative action defies originalism’s logical conclusion and some liberals would vacate the high standard used in racial discrimination cases, does doctrinal analysis of affirmative action reflect value judgements about affirmative action itself?
Justices certainly evaluate personal and societal outcomes of affirmative action as a policy in forming their opinions. Justice Clarence Thomas, among the Court’s staunchest opponents of affirmative action, describes how “the taint of racial preference” associated with his admission to Yale Law School (where he was one of twelve Black students in his class) led job interviewers and classmates to regard him as less qualified than his peers. Thomas writes in his Court opinions that affirmative action is inherently stigmatizing — a way of stamping minority students with a “badge of inferiority,” language from Plessy v. Ferguson (1896) — and it is intimately tied to his own experiences.
In oral arguments over the University of Texas’s use of race in admissions, Justice Antonin Scalia also weighed in on the merits of affirmative action, suggesting the conclusions of the “mismatch theory” — the notion that minority students with lower academic qualifications are better off at “slower-track schools” than at universities where they are less prepared than most classmates. While Scalia obviously lacks the personal connection to affirmative action that Thomas has, and the empirical claims of the mismatch theory are far from conclusive, his line of questioning illustrates that empirical arguments about the academic and economic outcomes of affirmative action beneficiaries hold water in judicial decision making.
Personal judgments about the value of racial diversity, too, underpin justices’ willingness to adopt it as a compelling interest in jurisprudence. Justice Thomas has slammed the notion that racial diversity is necessary to obtain the educational benefits that elite schools desire, writing that it is “the result of a jurisprudence based upon a theory of black inferiority.” In his view, only state-enforced segregation is a harm, not racial isolation itself.
The other side of the debate also draws from personal experience. Justice Powell wrote in Bakke that the majority’s view of the “substantial” contribution of diversity to education is rooted in “our tradition and experience.” Each member of the Court was educated at elite undergraduate and legal institutions, and drawing insights from their personal experience seems instrumental in the Court’s evaluation of the benefits of diversity.
Of course, evaluating schools’ claims of the educational benefits of diversity is fundamental to the strict scrutiny means-ends test to which affirmative action programs are subjected — and is therefore the province of the Court. But justices who believe the 14th Amendment is a categorical prohibition of racial classifications would not subject affirmative action to this test, which grew out of Justice Harlan Stone’s suggestion that evaluating “prejudice against discrete and insular minorities” may warrant a higher tier of scrutiny in a famous footnote in U.S. v. Carolene Products (1938). The dispute around affirmative action, meanwhile, is whether it constitutes prejudice against majority, historically advantaged racial groups.
The framework the Court employs to decide affirmative action policies, therefore, is both contested in its application and requires justices to evaluate the policy benefits and costs of affirmative action. The question of application is intimately tied to conservative justices’ conceptions of the 14th Amendment that seem to disappoint the core precept of originalism, and on the question of substance, it seems impossible to divorce affirmative action jurisprudence from the value judgements in racial debates that underpin it. It is evident from the influence of justices’ strongly held beliefs around factors like diversity, student outcomes, and stigma — often rooted in personal experience — that our affirmative action jurisprudence may be just as political as legal. It may be impossible to fulfill the imperative of apolitical judgment.
Image by Eric Ardito is licensed under the Unsplash License.
