Fisher v. Texas and the Reasons Why Liberals and Conservatives on the Supreme Court Don’t Trust Each Other on Affirmative Action: Part One in a Two-Part Series of Columns

The Supreme Court’s grant of cert. last month in the Texas college affirmative action case, Fisher v. University of Texas, has generated, and will continue to generate, tremendous buzz among commentators, educators and civil rights advocates.  Whether the Court ends up completely or substantially eliminating race-based affirmative action (and even whether the Justices can overcome procedural hurdles to resolve the case on the merits at all) remains to be seen.  But as my friend and fellow Verdict columnist Mike Dorf observed in his column on the Texas case earlier this week, the judicial opinions that emerge may very well fail to offer candid, honest treatment of the complex issues involved.

In my column today, the first in a two-part series of columns about the Court and its upcoming affirmative action case, I build upon this theme of intellectual insincerity, and describe in greater detail how the Justices have gotten to the point where neither wing of the Court seems remotely open to, or trustful of, the other on these matters.

As Mike explained, and as I chronicled in some detail in my first column on the Fisher litigation last year, there are a number of prior Supreme Court cases—Bakke, Croson, Grutter, Parents Involved, and a handful of others — that anyone trying to understand the constitutional law surrounding educational affirmative action should know about.  These cases establish doctrinal rules—categories, boxes, standards of review, etc.—that apply to affirmative action programs.  But these cases also illustrate that doctrinal tests are not self-implementing; even when all nine Justices largely agree about the legal standard that should govern, they can still disagree 5-4, and quite bitterly, over what the application of that abstract standard really means in actual disputes.

Moreover, these cases have created a voluminous track record of intellectual sleight-of-hand that can explain why the affirmative action defenders and skeptics on the Court have good cause not to trust each other.  I offer three examples below:

The First Example: The Liberals’ Unwillingness to Apply Meaningful Strict or Even Intermediate Scrutiny to Race-Based Programs

Consider first the case of City of Richmond v. Croson, where a divided Court struck down a Richmond, Virginia contracting set-aside program that reserved a certain percentage of the money the city spent on public construction contracts for minority-owned contracting companies.  The City argued that the plan was necessary to remedy past discrimination, both by the City itself and within the private contracting industry and beyond, against minority contractors, but the majority (which included Chief Justice Rehnquist as well as Justices White, Stevens, O’Connor, Scalia, and Kennedy) rejected this justification (more on this in a moment).

The three dissenters—Justices Brennan, Marshall and Blackmun—would have upheld the plan by applying what they said was intermediate scrutiny to the measure, the same standard of review they had used to vote to invalidate virtually all gender-based laws they saw during their time on the Court.  They would have upheld Richmond’s plan, under this supposedly forceful standard of review, even though the program embodied an overt quota—something the Court has said for decades is impermissibly rigid—and even though the remedial plan included as set-aside beneficiaries contracting companies owned by Aleuts, as if Richmond had a history of discriminating against Aleutian contractors in its recorded past.

The willingness of the liberal dissenters to defer to an obviously poorly crafted and mechanical plan that made use of race went a long way toward convincing the more conservative majority that the constitutional affirmative action battle would likely be waged in all-or-nothing (or close to it) terms, and that trying to identify a middle ground (the way the Court would do in the abortion setting in Planned Parenthood v. Casey three years later) would be a waste of effort.

The all-or-nothing question may now be in front of the Court again in Fisher, where observers openly wonder whether Justice Kennedy is still seeking, and can find, a middle ground from which he might invalidate the Texas plan, but still leave room for meaningfully effective diversity-promoting programs.

The Second Example:  The Conservatives’ Unfair Treatment of Remedial Rationales

Let’s stay with Croson for a moment, because there is some intellectual dishonor to be seen in the conservative opinions there as well.  The majority rejected the plan not just because, as described above, it was shoddily crafted.  The majority also thought that the goal of remedying past discrimination was itself not one on which the City should be able to act easily without detailed findings (which the City had not made) as to exactly what discrimination occurred, and when, and by whom.  Nobody denies that, in Richmond, there had been overwhelming, pervasive and persistent societal discrimination against African-Americans in particular for generations.  Yet the main opinion in Croson said, in dismissing the relevance of this history: “It is sheer speculation how many minority firms there would be in Richmond absent past societal discrimination.”

This is true, but it would remain true even if Richmond had made the kind of findings of past discrimination that the conservative Justices said they wanted.  Knowing the “when,” the “where,” and the “how much” about discrimination in the past still leaves unclear exactly what the world would look like today had that past wrongdoing never existed.  To deny government the ability to redress past discrimination precisely because its enormity creates uncertainty about whether the proposed remedy is perfectly calibrated to the wrong creates a perverse situation in which the greater the past injustices are, the more powerless the government is today to deal with their effects—which are undeniably real and lingering, but inevitably somewhat fuzzy in their particulars.

For this reason, the goal of remedying past discrimination has largely been abandoned as a legal justification for affirmative action programs, at least in the higher education setting.  Instead, diversity of the student body as a pedagogical asset is the primary interest that universities assert to defend race-based programs.  I do not disagree with the idea that diversity can be a compelling interest.  But I do think that most defenders of affirmative action, were they completely honest, would say that the remedial justification, especially in the case of African Americans, is the most natural, obvious and compelling reason to maintain race-based programs.  And yet, that honest reason why many proponents of affirmative action continue to think race-based programs are necessary is not discussed much in higher education cases, in large part because it was shut down unfairly in cases like Croson.  Here, the conservative wing of the Court has brought about dishonesty in our conversation about race.

The Third Example: The Justices’ Treatment of History and Past Precedent

In the affirmative action setting, the Justices are often guilty of selective memory and quotation when it comes to the Court’s prior decisions. One of the most prominent examples of selective (mis)reading of a past precedent was the prominent invocation in 2007 of Brown v. Board of Education by Chief Justice Roberts’s plurality opinion (joined by Justices Scalia, Thomas and Alito) in the racial student-assignment cases (or “racial balancing” cases, as these “color-blind” Justices described them) from Seattle and Louisville.  After asserting that “when it comes to using race to assign children to schools, history will be heard,” Chief Justice Roberts quoted language from Brown to the effect that “full compliance” with Brown‘s edict required school districts “to achieve a system of determining admission to the public schools on a nonracial basis.”

It’s true that the Court wrote these words, which, when analyzed in isolation, seem to condemn all governmental consideration of the race of students.  But to read Brown as a case about color-blindness is to ignore much of the analysis and language that the Court used to explain why it was invalidating the segregation schemes before it.

Indeed, perhaps the most famous language from Chief Justice Earl Warren’s opinion for the Court in Brown spoke not in terms of color-blindness, but in terms of the special damage that is done to minority racial groups when race is used by government in an overt attempt to create racial hierarchy and stigma: “To separate [African-American children] from others of similar age and qualifications solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone.”

In other words, Chief Justice Robert’s plurality opinion quoted the language about achieving a “system of determining admission to public schools on a nonracial basis” without acknowledging that this language was used in a setting where—unlike the modern Seattle and Louisville settings—there was a clear stigma and message of inferiority visited upon one race.  Such an omission is historically and intellectually misleading at the very least. Ultimately, while the result in Brown can be reconciled with a color-blind approach, the analysis and language in Brown, read in their entirety and against the historical backdrop that was 1954 America, do not really make Brown very strong stare decisis support for a total or near-total ban on governmental race consciousness.

Current proponents on the Court of a color-blind approach to the Fourteenth Amendment are also guilty of selective use of precedent when they invoke Justice Harlan’s dissent in Plessy v. Ferguson, the infamous 1896 case in which the Court, over Justice Harlan’s protestations, permitted Louisiana to mandate separate railway cars for blacks and whites.  Today, supporters of a complete ban on government race-consciousness often invoke Justice Harlan’s famous statement that “[o]ur Constitution is color-blind,” largely because Harlan’s bottom-line vote in Plessy was legally right and morally just. Yet those who invoke Harlan ignore other language from his writing that focused not on absolute colorblindness, but instead on the need to avoid the creation of “caste” in the United States.

Because Louisiana’s (and most every other American government’s) use of race in the Nineteenth Century tended to promote a racial caste system, a statement back then about colorblindness and a statement about anti-caste principle meant the same practical thing. But now, in 2012, when the use of race in colleges does not seem to be deployed in support of, and is not likely to lead to, a racial caste system, we must interpret Harlan’s opinion more holistically, and should not wrench the “colorblind” sentence from its linguistic and historical context.

Indeed, there are yet other passages from Harlan’s dissent that advocates of modern colorblindness ignore even more tellingly. In describing the world that would result if government adhered to his prescription about the use of race, Harlan wrote: “The white race deems itself to be the dominant race in this country. And so it is, in prestige, in achievements, in education, in wealth, and in power. So, I doubt not, it will continue to be for all time, if it . . . holds fast to the principles of constitutional liberty.”  Small wonder people who want to draw upon Harlan’s “colorblind” metaphor don’t mention where he himself believed that metaphor would lead us.

In my next column, Part Two in this series on the Court and affirmative action, I will explore some of the procedural machinations and dishonesties from the Court that the race-based affirmative action cases have generated. That column is currently scheduled to appear here on Justia’s Verdict on March 16.