Archive | Affirmative Action

Competing Interpretations of Fisher

Commentary on today’s Supreme Court decision in Fisher v. University of Texas seems to be divided between those who believe, as I do, that the ruling tightens judicial scrutiny of university affirmative action plans, and those who contend it will make no real difference.

Amy Howe of SCOTUSblog suggests that “affirmative action survives at least in theory…, but will be far more difficult to implement in practice.” Bill Mears of CNN reaches a similar conclusion, and affirmative action opponent Roger Clegg claims that the ruling will be “helpful” to litigators seeking to strike down racial preferences. By contrast, Gerard Magliocca believes that Fisher “said nothing,” and UC Irvine Law School Dean Erwin Chemerinsky concludes that it just reaffirms Grutter and other previous decisions.

I think the latter interpretation of Fisher is difficult to defend. It’s true that the Court did not hold that all affirmative action for diversity purposes is unconstitutional, and claimed that its decision was completely consistent with Grutter. On the other hand, as I explained previously, it ruled that affirmative action plans must be scrutinized by courts without giving any deference at all to the university’s judgment, and should be judged by the same standards as racial preferences in non-university settings (where the Court tends to be very tough). This is a major change from Grutter’s extension of a substantial “degree of deference” to university’s expertise. Essentially, in the opinion he wrote today, Justice Anthony Kennedy adopts the legal rule advocated in his Grutter dissent, where he took the majority to task for its “perfunctory” review of the University of Michigan Law School’s affirmative action program, and for “deferring to the law school’s choice of minority admissions programs.” Today’s decision holds that a university “receives no deference” on such questions.

To determine the […]

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Fisher, the Texas Ten Percent Plan, and “Race-Neutral” Alternatives to Affirmative Action

When it was litigated in the lower courts, most observers thought that the most distinctive aspect of Fisher v. University of Texas is that the racial preferences used in its affirmative action plan were grafted on top of the Texas Ten Percent Plan, which guarantees any Texan admission to the UT so long as they were in the top ten percent of their high school class. This plan ensured that the university had a large number of black and Hispanic students, because many high schools are overwhelmingly minority. While formally “race neutral” the Ten Percent Plan was clearly enacted by the state legislature for the purpose of increasing the percentage of African-American and Hispanic students after the Fifth Circuit court of appeals struck down the University of Texas’ affirmative action program in the 1996 Hopwood case. Before the Supreme Court decided Fisher, I worried that it would validate the Ten Percent Plan in the process of striking down the additional preferences placed on top of it. For reasons I discussed here, the Ten Percent Plan is not really race neutral, and is in many ways worse than conventional affirmative action programs.

Today’s Supreme Court majority opinion does not directly address the question of whether the Ten Percent Plan is genuinely race neutral or not. Justice Kennedy emphasizes that:

Narrow tailoring…. requires that the reviewing court verify that it is “necessary” for a university to use race to achieve the educational benefits of diversity…, [which] involves a careful judicial inquiry into whether a university could achieve sufficient diversity without using racial classifications….The reviewing court must ultimately be satisfied that no workable race-neutral alternatives would produce the educational benefits of diversity.

But he doesn’t explain what counts as a “race-neutral alternative.” In the context of traditional discrimination against minorities, courts have […]

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Preliminary Thoughts on Fisher v. University of Texas

Today’s Supreme Court decision in Fisher v. University of Texas is a significant victory for opponents of affirmative action in higher education. Formally, the 7-1 ruling written by Justice Anthony Kennedy only remands the case to the court of appeals for consideration under the “strict scrutiny” standard, which requires the government to show that racial classifications are “narrowly tailored” to the achievement of a “compelling state interest.” But it also makes it much more difficult for state universities to prove that affirmative action plans meet that standard. To understand why, we need to compare today’s ruling to the 2003 case of Grutter v. Bollinger, the leading previous Supreme Court decision on the subject.

Grutter ruled that affirmative action programs in higher education have to meet strict scrutiny, but also concluded that “diversity” is a compelling state interest. Most importantly, it held that in considering whether an affirmative action program meets the narrow-tailoring requiring, courts should give universities’ judgment about the amount of racial preferences needed to promote diversity “a degree of deference.” Such questions, the Court then said, are “complex educational judgments in an area that lies primarily within the expertise of the university.” By contrast, today’s majority opinion is much less deferential:

Once the University has established that its goal of diversity is consistent with strict scrutiny, however, there must still be a further judicial determination that the admissions process meets strict scrutiny in its implementation. The University must prove that the means chosen by the University to attain diversity are narrowly tailored to that goal. On this point, the University receives no deference. [emphasis added]

The Court therefore vacated the Fifth Circuit opinion, which gave the University of Texas substantial deference in determining how much racial preference was needed to achieve the goal of educationally valuable […]

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Political Profiling and Racial Profiling

Slate columnist Farhad Manjoo has an interesting article arguing that conservatives are right to complain about the IRS’ use of political profiling, but argues that they should use the same reasoning to rethink their support for racial profiling in law enforcement. As he points out the IRS justification for political profiling is very similar to standard arguments for racial profiling in combatting terrorism and crime:

Pretend you work at the Internal Revenue Service… Every day, a big stack of files lands on your desk…. Each file represents a new application for a certain tax status—501(c)(4), a tax-exempt designation meant for “social welfare” organizations. Nonprofits with this status aren’t required to disclose the identity of their donors and they’re allowed to lobby legislative officials. The catch is that they must limit their political campaign activity….

It’s your job to decide which 501(c)(4) applications represent legitimate social-welfare organizations, and which ones are from groups trying to hide their campaign activities. What’s more, you’ve got to sort the good from the bad very quickly, as you’re being inundated with applications….

So what do you do? You look for a shortcut. Someone at your office notices that a lot of the applications for 501(c)(4) status are from groups that claim to be part of the burgeoning Tea Party movement. Aha! When you’re looking for signs of political activity, wouldn’t it make sense to search for criteria related to the largest new political movement of our times? So that’s what you do…

[T]here’s a name for the kind of shortcut that the IRS’s Cincinnati office used to pick out applications for greater scrutiny: “profiling.” By using superficial characteristics—groups’ names or mission statements—to determine whether they should be subject to deeper investigation, the IRS was acting like the TSA agent who pulls aside the guy in


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New Scholarship on Originalism and Discrimination

For a long time, the conventional wisdom among legal scholars has been that an originalist interpretation of the Fourteenth Amendment would require courts to uphold laws that discriminate against women and laws banning interracial marriage. While these arguments were once advanced by defenders of sexism and Jim Crow laws, today they are usually used as justification for rejecting originalism itself rather than for rejecting court decisions such as Loving v. Virginia, which struck down anti-miscegenation laws. At the same time, most scholars have also argued that the original meaning of the Amendment permits states to adopt affirmative action programs.

Recent scholarship has called this conventional wisdom into serious question. In 2011, Northwestern law professor Steven Calabresi and Julia Rickert published an important article outlining an originalist case for striking down laws that discriminate on the basis of sex. More recently, both Calabresi (with Andrea Matthews) and David Upham have published originalist defenses of the result in Loving.

Just a few days ago, Michael Rappaport posted this paper questioning the conventional wisdom on originalism and affirmative action (which I myself questioned much less thoroughly here). It is not my view that the original meaning of the Fourteenth Amendment clearly requires courts to strike down all affirmative action programs. But the application of the original meaning to these programs is far from being as clear as the conventional wisdom suggests.

I don’t think the work of Calabresi and his coauthors, Rappaport, and Upham will definitively end the debate over originalism and discrimination. Critics of originalism will likely develop rebuttals to their arguments. But this new wave of scholarship does mount a strong challenge to the previously dominant conventional wisdom. […]

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College Admissions and Affirmative Action for the Well-Off

Instapundit links to this Daily Beast piece:

These days, a nearly-perfect GPA is the barest requisite for an elite institution. You’re also supposed to be a top notch athlete and/or musician, the master of multiple extracurriculars. Summers should preferably be spent doing charitable work, hopefully in a foreign country, or failing that, at least attending some sort of advanced academic or athletic program.

Naturally, this selects for kids who are extremely affluent, with extremely motivated parents who will steer them through the process of “founding a charity” and other artificial activities. Kids who have to spend their summer doing some boring menial labor in order to buy clothes have a hard time amassing that kind of enrichment experience.

The irony is that even admissions officers seem to be put off by this dynamic; presumably that’s why I’m told that kids now have to have fake epiphanies about the suffering of other, less privileged people instead of just having fake epiphanies about themselves. This proves that they are really caring human beings who want to do more for the world than just make money so that they, too will, in their time, be able to get their children into Harvard.

I had something of an epiphany on this when I visited a D.C.-area private school that boasted that it had one of the best high school girls’ lacrosse teams in the country. Why in God’s name, I wondered, would anyone care about this when considering a private school, especially given that I was there for a kindergarten open house? Then it dawned on me: this is the way the school gets some girls with marginal academic credentials into elite schools. All elite colleges with women’s lacrosse have to fill their teams, and lacrosse is prevalent only at expensive private schools. […]

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Supreme Court to Consider Michigan Affirmative Action Ban

Among the orders issued by the Supreme Court this morning was a grant of certiorari in Schuette v. Michigan Coalition to Defend Affirmative Action , in which the question is whether a state ballot initiative prohibiting the consideration of race in state university admissions violates the Equal Protection Clause. The case arises from a lawsuit challenging the constitutionality of the so-called Michigan Civil Rights Initiative. The U.S. Court of Appeals for the Sixth Circuit, sitting en banc held 8-7 that the initiative was unconstitutional. As Lyle Denniston reports for SCOTUSBlog, the timing of the grant is something of a surprise given that the Court has yet to rule in the Fisher case, which involves a constitutional challenge to the use of race in public university admissions. Were the Court to rule that any and all use of race in admissions violates the Equal Protection Clause, there would be nothing for the Court to consider in Schuette. […]

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Chemerinsky on Color Blindness


Erwin Chemerinsky, founding dean of the University of California, Irvine School of Law, said that the concept of colorblindness holds great rhetorical appeal but that “there is no basis for concluding that the 14th Amendment equal protection clause requires colorblindness.” In drafting the 14th Amendment, he said, Congress recognized “an enormous difference between a white majority disadvantaging minorities and a white majority acting to remedy past discrimination.”

C’mon Erwin. The text of the relevant portion of the Amendment reads

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

It’s fine to conclude that based on one’s own understanding of the text, history, proper modes of interpretation and so on, the Fourteenth Amendment doesn’t require colorblindness. But surely the fact that the Amendment is itself textually “color blind,” and speaks only of “persons” and not groups, and shows no textual evidence that Congress recognized “an enormous difference between a white majority disadvantaging minorities and a white majority acting to remedy past discrimination” is itself “a basis,” even if you don’t find it persuasive, for concluding otherwise. And of course there are other reasons one could reasonably interpret the Fourteenth Amendment to require color-blindness (the natural rights tradition, alluded to in this context often by Clarence Thomas; the historic concern with and opposition to “faction”; the mistrust of states, especially the southern states and especially with regard to […]

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Harvard Law Review Expands Affirmative Action Program to Include Gender

The Harvard Crimson reports:

The Harvard Law Review, which has historically been staffed by disproportionately more men than women, has expanded its affirmative action policy to include gender as a criteria in its editor selection process.

Following a year in which just 20.5 percent of its elected editors were female, the Law Review will consider gender when choosing some of its applicants for the first time ever this year.

The majority of the Law Review’s returning editors approved the policy change this January in an attempt to increase the number of female editors on the staff. Because of the specific nature of the Law Review’s admissions process, the new policy will be used in choosing 12 of the Law Review’s next 46 editors.

Second-year Law School student Gillian S. Grossman ’10, the recently elected president of the Law Review who will lead the organization’s 127th volume, wrote in an email that the policy change was among many considered to “enhance the diversity of the editorial body.”

“Volume 127 decided that adding gender to the list of criteria considered by the discretionary committee was one good step in that direction,” she wrote.

This was a major subject of debate when I was a student at Harvard Law in the 1990s. Back then, the thought among the Law Review editors was that members of the Law Review went on to become the leaders of society while non-law-review types toiled away in obscurity. Affirmative action to better equalize the numbers on the Review would help ensure that tomorrow’s leaders would include as many women as men. In 1997, the Law Review did a major survey of the entire law school student body to find out what was going on. It turned out that the women and men who actually applied to be on […]

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The Sad Irony of Affirmative Action

Gail Heriot has a powerful affirmative action piece over at National Affairs. Her piece elaborates on the important work of Richard Sander, who guest blogged here last year. They contend — and offer compelling empirical evidence — that affirmative action affirmatively harms its supposed beneficiaries. In the last paragraph, Gail wonders whether this argument will affect the Court’s analysis in Fisher v. Unviersity of Texas. For what it’s worth, I think that Justice Kennedy, at least, will find this point very compelling indeed. […]

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Richard Kahlenberg on Racial Preferences and Gay Marriage

In a recent post, I wrote about the growing number of people who oppose racial preferences in education, while also supporting gay marriage. Richard Kahlenberg, a long-time advocate of replacing race-based affirmative action with socioeconomic affirmative action, can be added to the list:

The Supreme Court’s decision to hear gay-marriage cases from New York and California this spring means the justices will weigh in on two highly fraught social questions this term—same-sex marriage and affirmative action in higher education. (Not to mention the future of the Voting Rights Act.) Justice Anthony Kennedy is likely to be the swing vote in these cases, and many are predicting he will side with conservatives to limit racial preferences and with liberals to support gay marriage. Paradoxically, the very reasoning that could guide Kennedy to support marriage equality may bolster his decision to curtail race-based affirmative action, spurring colleges to adopt new approaches.

Proponents of gay marriage advance two powerful arguments: Couples seeking to marry should not be discriminated against on the basis of an unchangeable factor like sexual orientation; and shifting attitudes, especially among young people, make gay marriage an inevitability.

The problem for supporters of racial preferences is that these precise arguments can be, and have been, made by conservatives challenging the use of race in university admissions in the case of Fisher v. University of Texas. Abigail Fisher, the plaintiff, says the fact that she was born white should not be used to disadvantage her in admissions; and large-scale trends over the past half century—the decline in racial discrimination coupled with growing economic inequality, a rise in racial intermarriage, and the “browning” of the U.S. population—all make affirmative action based on race look outdated.

I don’t agree with all the points Kahlenberg makes. Not every possible argument for […]

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Opposing Affirmative Action While Supporting Gay Marriage

In a recent post, co-blogger Orin Kerr writes that “few people have the same instinctive reaction to both [the affirmative action and gay marriage] cases” that the Supreme Court is likely to decide in the next few months. He means that few people want the Court to invalidate both affirmative programs and state and federal laws banning same-sex marriage.

Depending on the definition of “few,” Orin may well be right. But it’s important to note that people who oppose racial preferences in college admissions (the issue the Court will consider in Fisher v. University of Texas), while supporting gay marriage are far from unusual. Recent polls show that about 50% of Americans support gay marriage, while many surveys indicate that some 60 to 70 percent of the public oppose racial preferences in college admissions (e.g. here and here). Even if we assume that some 80 to 90% of the 50% who do not support gay marriage also oppose affirmative action in admissions, that still means that about 15 to 20 percent of the public simultaneously opposes racial preferences and supports gay marriage.

And this position is likely to become more common, since support for gay marriage among moderates and conservatives is rapidly growing, while opposition to racial preferences remains fairly stable. A May 2012 Gallup poll found that 57% of independents and 22% of Republicans support gay marriage, and these percentages are likely to increase, since support for gay marriage is inversely correlated with age. The combination of support for gay marriage and opposition to affirmative action is probably also the most common view among the 10 to 15 percent of the public who are generally libertarian in orientation.

Opposition to affirmative action and laws banning gay marriage on policy grounds is not the same […]

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Litigation Strategy and Coalition to Defend Affirmative Action v. Regents

I will bet anyone (in jurisdictions where it is legal) that the Supreme Court will reverse the Sixth Circuit in Coalition to Defend Affirmative Action v. Regents.  Indeed, my main question is how badly the Coalition to Defend Affirmative Action loses.  My guess is that they get maybe two votes on the Supreme Court.

When Ted Olson and David Boies brought a challenge to California’s Proposition 8 against gay marriage, lots of gay marriage supporters said the litigation was a mistake, because it was too soon.  I don’t recall seeing the same pushback against this Michigan litigation (that is, I don’t recall advocates of affirmative action saying that this litigation was too soon).  I suspect the reason for this difference is that gay marriage advocates believe that time is on their side and affirmative action advocates don’t. But if the groups spearheading the Michigan litigation believe they’ll be in the same position, or in a weaker position, in the future, that still doesn’t explain bringing this litigation if they don’t think they’ll win in the Supreme Court.  So I’m guessing that the Michigan groups bringing this litigation think they will win in the Supreme Court, or they think that the litigation will bring them other benefits (like moving public opinion in their favor) that will outweigh the costs of losing in the Supreme Court.  I’ll take the bet against both propositions. […]

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Coming Soon to the U.S. Supreme Court (Unless the Court Bans Race Preferences First)

The Sixth Circuit just held, in Coalition to Defend Affirmative Action v. Regents that a state constitutional amendment banning race preferences in public education (among other contexts) violates the Equal Protection Clause, because it — as a constitutional amendment — makes it harder for those who favor race preferences to change state law to allow such preferences. The decision was by the entire court, not just a three-judge panel, and split 8 to 7.

In this the Sixth Circuit disagrees with the Ninth Circuit, and I think it nearly certain that the U.S. Supreme Court will agree to hear the case: There’s a circuit split, the issue is one of significant national importance, and the 8-to-7 disagreement among the en banc court judges helps, too. I also think it’s very likely that the Court will reverse the Sixth Circuit. The one reason for the Court to deny would be if it holds in the Fisher v. University of Texas that all race preferences in higher education are unconstitutional under the Equal Protection Clause; that might make the controversy about the constitutionality of state bans on race preferences practically moot.

Note, incidentally, that under the majority’s logic Congressional amendment of Title VII to make clear that it bans all race discrimination, with no exception for certain race-based preferences, would be just as unconstitutional. The court’s reasoning is that the Michigan state constitutional amendment preempted ordinary state laws that would allow race preferences, but a federal extension of Title VII would have an even broader effect. Here’s the Sixth Circuit’s summary of its main point:

A student seeking to have her family’s alumni connections considered in her application to one of Michigan’s esteemed public universities could do one of four things to have the school adopt a legacy-conscious admissions policy: she


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En Banc Sixth Circuit Voids Michigan Civil Rights Initiative

By an 8-7 vote, the U.S. Court of Appeals for the Sixth Circuit has held that Michigan’s Proposal 2, aka the Michigan Civil Rights Initiative, is unconstituional. The Court split along predictable ideological lines, with Democratic nominees siding with the plaintiffs, and Republican nominees voting to uphold the initiative.

Judge Cole delivered the opinion for the court, joined by judges Martin, Daughtrey, Moore, Clay, White, Stranch, and Donald. His opinion begins:

A student seeking to have her family’s alumni connections considered in her application to one of Michigan’s esteemed public universities could do one of four things to have the school adopt a legacy-conscious admissions policy: she could lobby the admissions committee, she could petition the leadership of the university, she could seek to influence the school’s governing board, or, as a measure of last resort, she could initiate a statewide campaign to alter the state’s constitution. The same cannot be said for a black student seeking the adoption of a constitutionally permissible race-conscious admissions policy. That student could do only one thing to effect change: she could attempt to amend the Michigan Constitution—a lengthy, expensive, and arduous process—to repeal the consequences of Proposal 2. The existence of such a comparative structural burden undermines the Equal Protection Clause’s guarantee that all citizens ought to have equal access to the tools of political change.

In other words, it is unconstitutional for a state constitution to prohibit the consideration of race by state actors.

Several judges filed dissents, including Boggs (joined by Chief Judge Batchelder, Gibbons (joined by Batchelder, Rogers, Sutton, Cook, and Griffin (in part)), Rogers (joined by Cook), Sutton (joined by Batchelder, Boggs and Cook), and Griffin.

My prior posts on this case are here and here.

In case it’s not obvious enough, this case has certiorari written […]

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