Jack Balkin on Fisher

Yale law professor Jack Balkin – a leading constitutional law scholar generally sympathetic to affirmative action – has an interesting post on Fisher v. University of Texas. Like me, Balkin believes that the decision will make it more difficult for universities to defend racial preferences in court:

Fisher distinguishes between two questions. The first is whether diversity is a compelling interest for a state university; the second is whether an admissions program that uses race to achieve educational diversity is narrowly tailored.

On the first question, the courts will generally defer to university officials’ belief that educational diversity is essential to the university’s educational mission.

However, on the second, question–whether the university’s use of race is narrowly tailored–courts will not defer to the university’s views. In particular, courts will not defer to the university’s judgment that no workable race-neutral alternative would achieve the benefits of educational diversity “about as well and at tolerable administrative expense….”

This is important news, even if you think that this view was implicit in previous caselaw. If a race-netural approach would achieve the benefits of educational diversity not exactly to the same degree, but “about as well and at tolerable administrative expense,” then the university may not use a race-based program. The judgement of adequacy of race-neutral alternatives will be made by a court, and although it will pay attention to the professional judgment of educators, the court will not simply defer to that judgment.

This means that universities will be pressed to prove that “ten-percent” plans and class-based or socio-economic-based affirmative action programs will not do approximately as well as programs that consider race as one factor. The question will not be only one of numbers, but also the kind of diversity produced and its effects on education. That question will be quite complicated, but the important point is that the university will have to prove its position to the satisfaction of federal judges, many of whom are by now quite hostile to affirmative action programs of all kinds.

Jack also takes Justices Scalia and Thomas to task for their ongoing failure to explain how their view that affirmative action is always unconstitutional squares with their commitment to originalism:

Justices Scalia and Thomas once again argue for a strict colorblindness rule, but, once again, neither attempts to square their views with the original meaning of the Constitution. The closest Justice Thomas comes is citing to Clark v. Board of Directors, an Iowa Supreme Court decision from June 1868. The problem is that Clark construes the Iowa state constitution (not the federal Constitution), and it appears to have been decided before the Fourteenth Amendment was officially ratified in July 1868.

Instead of resting on the original meaning of the Fourteenth Amendment, Thomas rests on the original meaning of Brown v. Board of Education, arguing, much as he did in Parents Involved, that the opponents of affirmative action in higher education are like Thurgood Marshall and the NAACP, while the defenders of affirmative action in higher education are like the southern segregationists who sought to keep blacks out of all-white public schools. Or, as Thomas puts it “The University‚Äôs professed good intentions cannot excuse its outright racial discrimination any more than such intentions justified the now denounced arguments of slaveholders and segregationists.”

This is a valid criticism of Scalia and Thomas. The original meaning of Brown is not the same thing as the original meaning of the Constitution. As Jack points out, legal scholars such as Michael Rappaport and David Upham have recently produced important articles questioning the academic conventional wisdom that the original meaning of the Fourteenth Amendment does not require color-blindness. I discussed some of their work in this recent post. In an earlier post, I criticized some of the standard originalist arguments in defense of affirmative action preferences for minorities.

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