How Much Deference Will be Given to Affirmative Action Plans Fashioned by Students, and to Affirmative Action Plans More Generally? Part Three in a Series on the Challenge to Harvard Law Review’s Diversity Program

Posted in: Constitutional Law

In our two previous columns on the recent lawsuit by a Texas-based nonprofit organization—Faculty, Alumni, and Students Opposed to Racial Preferences (FASORP)—against Harvard Law Review (HLR) for its use of race and gender in selecting its members and authors for publication, we explored challenges the plaintiff faces in establishing standing to sue in federal court, the relationship of Title VI and IX (the statutory provisions the plaintiff has invoked) to the constitutional requirements of equal protection, and some lessons from the Supreme Court’s decisions in Grutter and Fisher for assessing whether and when a law review may have an interest in promoting diversity. In this, our third and final installment in the series, we focus on the extent to which courts should defer to law reviews when they assert diversity as a basis for considering race and gender and broaden our analysis to consider the future of Grutter and Fisher and affirmative action more generally in the new Supreme Court.

The Deference Dance (and the Fine Line HLR Must Walk in Performing It)

As we noted last time, in Grutter the Supreme Court deferred to the judgment of the University of Michigan Law School that diversity, including having a critical mass of racial minority students, was a compelling interest that justified consideration of race under the strict scrutiny standard. The Court explained that deference was warranted because determining educational benefits involved “educational judgments in an area that lies primarily within the expertise of the university.” By contrast, the Court also ruled that no deference was owed to the law school on whether the means to achieve diversity was narrowly tailored. In its rulings in Fisher, the Court affirmed this distinction, explaining that the diversity interest that a university “deems integral to its mission” entails “an academic judgment to which some, but not complete, judicial deference is proper” but that “no deference is owed when determining whether the use of race is narrowly tailored to achieve the university’s permissible goals.” (In an earlier ruling in the Fisher litigation, the Court had vacated the Court of Appeals’ decision because the lower court had required merely that the university’s use of race be in “good faith” and had not applied the proper narrow tailoring standard.)

It is not obvious that deference to a university on the educational goals it is pursuing in considering applicants for admission (the issue in Grutter and Fisher) would unproblematically carry over to a student-operated law review choosing members and selecting articles for publication. Grutter and Fisher both emphasize that university officials deserve deference because of their “experience and expertise” in operating an educational institution. This makes considerable sense. Education is, after all, a profession, and the professional educators in charge of developing policies and practices at the nation’s universities have many years of experience in educational settings and often advanced degrees or other training that has prepared them for their roles. Admissions officers work full-time, and from one year to another, in assembling entering classes and are also accountable to deans and other superiors. In addition, they attend conferences and training sessions with other admissions professionals and keep up to date on overall application trends and cutting-edge research and writing on educational practices.

Law review editors are in a very different position. They are not (typically) educational professionals themselves. As second- or third-year law students they have probably not previously been involved in designing and implementing admissions (or other) programs in educational or quasi-educational settings. Indeed, their main tasks—working to put out the journal and picking the next crop of editors—are one-time functions. Law review editors might well believe that diversity will generate benefits to the journal but they have no expertise for determining when, how, how much or why. Moreover, law review editors are picking their peers—other students with whom they will work in the coming academic year—or selecting the authors with whom they themselves will interact. It is far from clear whether outsiders should have confidence that the end result will be a suitable mix of different perspectives and experiences that will successfully generate educational and other benefits.

A court might therefore reason that the deference given in Grutter and Fisher should not extend to HLR’s assertion that diversity is a compelling interest, thereby requiring HLR to prove the claim—as well as prove that the particular process for selecting members and authors is narrowly tailored. The lack of expertise and the annual turnover of editors make this task difficult. Again, a comparison to law school admissions is helpful. In Grutter, testimony from long-serving admissions officers about their practices over multiple years confirmed the Court’s basis for affording deference, and also helped satisfy the Court that the law school was not deploying a forbidden racial quota. A law review—in seeking to prove the legality of its practices—will not have a similar professional to provide a record over time. So, too, Fisher emphasized that strict scrutiny requires that “through regular evaluation of data and consideration of student experience, the University must tailor its approach in light of changing circumstances, ensuring that race plays no greater role than is necessary to meet its compelling interest.” An admissions dean, responsible not just for a single year, is in a good position to satisfy that requirement. It is less likely that anybody within a law review is as well positioned to perform the sort of ongoing monitoring and adjustments the Court requires.

Within Harvard University, of course, there are many educational professionals who could bring experience and expertise to HLR and ensure coherence in and necessary modifications to a diversity program. However, HLR has insisted (in its motion to dismiss, now rendered moot because of the filing of an amended complaint) that it cannot be held liable under Title VI or Title IX because it receives no federal funding itself and it is completely independent of Harvard University (which does receive federal dollars). By setting itself apart from the university and the professional administrators to whom Grutter and Fisher gave some degree of deference, HLR runs a real risk that a court will view HLR’s practices as distinct from those the Supreme Court upheld in the two cases. The more HLR looks like an independent publishing house operated by recent college graduates—rather than an educational activity under the watchful eye of the law school’s professional faculty and administrators—the greater the likelihood that HLR’s diversity rationale will be rejected. Of course, HLR hopes that by asserting independence from a university that receives federal funding it can avoid liability altogether. But it is quite possible a court will rule that HLR is sufficiently connected to the university for purposes of triggering Title VI and Title IX while also finding that its admissions and article selection practices are distinct from the activities of educational professionals upheld in Grutter and Fisher.

The Fate of University Affirmative Action More Generally

Thus far we have been asking how lower courts, applying existing precedent, might view the HLR matter. But whenever a prominent challenge to affirmative action is filed, many people immediately think the Supreme Court could get involved. And they could ultimately weigh in on this case, but there are two reasons that is somewhat unlikely. First, the chance that any single case (be it this HLR case, the Harvard undergrad admissions challenge brought by Asian-American plaintiffs, or the challenge to the University of North Carolina’s affirmative action program) is accepted for review by the Court is, as a baseline matter, quite small; about 1% (or fewer) of petitions for review are accepted.

Even in the realm of affirmative action, consider that it took the Court 25 years after Bakke (1978) to find another educational case, Grutter (2003) into which it wanted to wade. And then another 13 years after that before it decided Fisher (2016) (in definitive terms). To be sure, part of the inability to get four votes to grant cert. may have stemmed from uncertainty by both liberals and conservatives about how swing justices might rule, and perhaps the new Supreme Court is more reliably predictable (but see more on that below.)

Thus, given the Court’s disinclination to review many affirmative action cases—coupled with the fact that the Court might prefer cases that pose Equal Protection Clause challenges directly rather than via statutes (Titles VI and IX) that incorporate equal protection norms—it is unlikely that the HLR suit will make its way onto the Court’s merits docket. But if it were not legitimate and useful to muse about unlikely yet potentially important Supreme Court actions, we might not have become law professors. All of this brings us to the question: What are the options a conservative Supreme Court majority might pursue if it were to take up the HLR case?

One possibility is that the Court would use the case to revisit the relationship between Title VI and the Equal Protection Clause—to hold that Title VI imposes more limits on affirmative action than does the Constitution. But this prospect would, as we’ve explained earlier, be in tension with the Court’s general unwillingness to revisit statutory interpretations absent significant new evidence of statutory meaning.

A more likely route would be for the Court to hold the line on affirmative action and invalidate the HLR plan without signaling a retreat from the results in Grutter and Fisher. The Court could do this either, as discussed above, by declining to give HLR leaders the deference that was due to the academic administrators in those earlier cases, or by holding that diversity in admissions (and perhaps academic classrooms/programs) is distinctively important, and that the compelling interest in diversity does not extend to law review membership or article selection decisions even if professional educators were more involved in administering the law review.

What about the possibility that a majority of the Court would use the HLR case to announce that Grutter and Fisher are no longer good law? We think that is unlikely. Certainly Justice Kennedy’s departure and replacement by Justice Kavanaugh could alter the balance of the Court on this topic, but a close look at Justice Kennedy’s journey on this issue might suggest radical change is unlikely.

Prior to three years ago, Justice Kennedy’s vote had been with the conservative bloc in virtually every affirmative action case over the past two decades, including in Grutter, where Justice O’Connor was the fifth vote joining the liberals and Kennedy was in dissent. Then, in 2016, he surprised the world by joining four more liberal justices to uphold the University of Texas’s race-based program in Fisher.

Why did Kennedy flip when push came to shove in Fisher? There are many possible reasons, but a likely one is that, as he put it in writing for the Fisher majority, there remains “a consistent stagnation” in the number of minority applicants with grades and scores able to qualify for admission without some affirmative consideration of race. To put the point bluntly, if Grutter– and Fisher-style programs are not allowed, then elite universities will have significantly fewer minority students, and the (re)segregation of America’s most prominent institutions of higher learning would be obvious, and quite disconcerting, both to the minority students who do enroll and to society more generally.

But let us assume that Justices Kavanaugh and Gorsuch are sufficiently skeptical of race-consciousness that they would have, had they been justices three years ago, voted to strike down the UT plan in Fisher. They would have joined the three dissenting justices in that case to make five to come out the other way. But even if that were to have happened, only Justice Thomas—and this is key—among the three dissenters sought to lay down an absolute rule against the use of race in admissions, period. The other two Fisher dissenters (Chief Justice Roberts and Justice Alito) opined simply that so-called strict scrutiny—which the Court since the mid-1990s has held applies to affirmative action—wasn’t satisfied by the University of Texas.

The key question for all the conservative justices other than Justice Thomas, then, is how strict is strict scrutiny? As one of us (Amar) has written in other venues, there is a vast difference between Thomas’s absolutely color-blind position and even a very rigorous understanding of strict scrutiny. (The analogy used was the line in the movie The Princess Bride in which Billy Crystal’s Miracle Max character distinguished between “mostly dead” and “all dead.”) As long as the door remains ajar (under strict scrutiny), universities will continue to try to pass schemes that might survive challenge. The Court can play whack-a-mole by invalidating the relatively small number of programs it is able to review, but without a bright-line prohibition, the effect on the other thousands of educational institutions will be limited. (An analogy to the tension between the Court and the US Court of Appeals for the Ninth Circuit comes to mind; many observers believe that some Ninth Circuit judges who disagree with certain Supreme Court trends have over the years consciously failed to fully heed Supreme Court precedent, knowing that there are only so many cases each year in which the Court can slap them down.) In some ways, affirmative action presents the mirror image of the abortion setting: A few large states (like Texas) can regulate abortion aggressively, and if their regulations are upheld millions of women will be affected. The Court can strike down a few affirmative action programs under strict scrutiny (affecting a small number of students at those schools), but because there are so many more schools than there are states, and because each school’s plan is unique, the coercive signal the Court sends in each affirmative action case will have a far more limited reach. To be sure, opponents of affirmative action might ramp up their litigation against it, perhaps especially at several elite institutions to try to send a message. But as the HLR suit shows (see Part One of our series) it is not always easy to find good litigants, and in any event most other schools would still be able to argue that their programs are factually distinguishable, so that access of underrepresented groups to higher education nationally might dip a bit, but not fall dramatically in practice.

It is possible over time that other conservative justices, including the Chief and the newer members, may gravitate towards Thomas’s absolutist stance, but that could take many years, by which time there may be other changes in the Court’s makeup. Although the odds are slim, if the lawsuit against HLR ultimately reaches the Supreme Court, its decision could shed some light on how the current justices view affirmative action, but any fundamental changes to existing doctrine would likely require the Court to weigh in on multiple cases over an extended period.

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