Farewell to Affirmative Action?

After a long and contentious journey from Bakke, it appears that we have come to a fork in the road on affirmative action (inevitably recalling Yogi Berra’s famous advice: When You Come to a Fork in the Road, Take It!). On November 3, by a resounding 57% to 43%, the people of California voted to reject Proposition 16 and retain their state’s constitutional prohibition of discriminating against or granting preferential treatment to people based on race, ethnicity, or sex. On November 12, the First Circuit Court of Appeals in Boston upheld a lower court decision allowing Harvard to continue doing precisely what the people of California had just prohibited. Which fork the country will follow is not yet clear but may become so shortly.

These conflicting results—one by voters rejecting racial preference; one by courts affirming it—bring into sharp relief what is arguably the largest divide between popular and elite opinion on any current controversial issue. The California vote on Proposition 16 was but the latest in a series of referenda in liberal states rejecting “affirmative action”:

• California (1996) approved Proposition 209 55%-45%.
• Washington (1998) approved Initiative 2005 8%-42%.
• Michigan (2006) approved Proposal 2 58%-42%.
• Washington (2019) defeated Initiative 1000, which would have repealed I-200’s ban on affirmative action, 50.5%-49.5%.

Each of these results was regarded as surprising, even shocking, because elites in each state—Democratic (and, in Washington, Republican) governors and senators, newspapers, universities, churches, Silicon Valley, and even professional sports teams (California, 2020)—strongly supported affirmative action and vastly outspent its opponents.

No one should have been surprised, since these votes reflected public opinion in surveys going back decades. For example, Frank Newport, then Gallup’s editor in chief, writing about the Harvard case in 2018, quoted a question Gallup asked four times between 2003 and 2016:

Which comes closer to your view about evaluating students for admission into a college or university: applicants should be admitted solely on the basis of merit, even if that results in few minority students being admitted (or) an applicant’s racial and ethnic background should be considered to help promote diversity on college campuses, even if that means admitting some minority students who otherwise would not be admitted?

“Each of the four times Gallup has asked this question over a 13-year time period,” Newport emphasized, “between 67% and 70% of Americans chose the ‘solely on merit’ option.” WGBH in Boston (2018), Marquette University law school (2019), and the Pew Research Center found virtually identical results: 74%, 77%, and 74% respectively in favor of disregarding race and relying on qualifications only, even when the consequences were explained as they had been with Gallup.

Since proponents of affirmative action have continuously attempted to shroud the race preference at its core with a fog of obfuscation—“race sensitive” admissions; “holistic review”; race as only “one of many factors”; race as merely a tie-breaking “tipping point”; no quotas, only “goals”—it is necessary to describe clearly what public opinion opposes, what voters have rejected, what universities practice and want to preserve, and what courts have protected: creating barriers to admission that are higher for whites and especially Asians than for blacks and Hispanics.

That policy would seem to have been prohibited by the clear text of Title VI of the Civil Rights Act of 1964: “No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.”

“The plain language of the statute,” as Justice John Paul Stevens put it in his concurring opinion in Bakke, “prohibits different admission standards for blacks and whites,” adding that “A different result cannot be justified unless that language misstates the actual intent of the Congress.” Pointing to that “actual intent,” Stevens quoted extensively from the floor debate over the Civil Rights Act, including Senator Hubert Humphrey, the floor manager, who emphasized that “what [‘discrimination’] really means in the bill is a distinction in treatment … given to different individuals because of their different race, religion, or national origin…. [I]f race is not a factor, we do not have to worry about discrimination because of race.”

Unfortunately, the controlling opinion in Bakke by Justice Powell set aside the “plain language” of the text and the “actual intent” of the Congress, instead construing Title VI to proscribe only those racial classifications that would violate the Equal Protection Clause of the 14^th Amendment. The exact contours of those classifications have shifted with the prevailing interpretive winds on the Supreme Court, but Justice Powell decided that “tak[ing] race into account,” at least as “a tipping point,” was legitimate to achieve “diversity.” As a result, courts ever since have discarded Senator Humphrey’s definition of discrimination and have allowed race to be not only “a factor” but often the deciding factor in college admissions and elsewhere.

In his floor-debate remarks on the meaning of “discrimination” and immediately before the statement quoted by Justice Stevens, Senator Humphrey quoted the “eminent retired Supreme Court Justice, Mr. Charles A. Whittaker,” observing that “The meaning of the term ‘discrimination’ in its legal sense, is not different from its dictionary meaning. Webster’s New International Dictionary,” Humphrey continued, “defines discrimination as: ‘A distinction, as in treatment; esp., an unfair or injurious distinction.’”

One of the most significant if underappreciated effects of Bakke is that it set the courts on a course of defining discrimination in a way that diverged sharply from the common, dictionary understanding cited by Humphrey—one that is still accepted by most of the public, as the recent referenda preserving prohibitions against racial preference reveal. Justice Powell let the camel’s nose of diversity under the anti-discrimination tent by discarding Title VI’s categorical prohibition of racial discrimination in favor of the Equal Protection Clause’s more amorphous and ambiguous injunction. As a result, assigning burdens based on race is no longer even regarded as discrimination if done to promote “diversity.”

In Students for Fair Admissions [SFFA] v. Harvard the U.S. District Court found and the First Circuit Court of Appeals acknowledged voluminous examples of Harvard assigning burdens and benefits based on applicants’ race, but both courts held that all those examples passed “strict scrutiny” (a legal term for looking really, really hard), were “narrowly tailored,” and hence were “compelling” because they promoted “diversity.” In short, they did not amount to discrimination, or at least not too much of it.

“After careful review of the record,” the appeals court began its 104-page opinion by reviewing the district court’s 130-page opinion, “we hold … that under governing Supreme Court law Harvard’s race-conscious admissions program does not violate Title VI.” Or, as a Wall Street Journal editorial put it, there was extensive differential treatment based on race, but it was held by the courts to be “Harvard’s Legal Discrimination.”

Edward Blum, president of SFFA, stated that “[t]his lawsuit is now on track to go up to the Supreme Court.” The Supreme Court is not obligated to hear this case, and there are a couple of new affirmative action cases entering the pipeline—the trial of SFFA v. The University of North Carolina has just begun, and the Department of Justice has just sued Yale—that could cause the Court to wait. Most knowledgeable observers I have spoken to, however, believe the Court will accept the Harvard case.

Assuming the Supreme Court does agree to hear SFFA v. Harvard, Mr. Blum and his lawyers will immediately confront another fork in the road. One fork (or what lawyers would probably call a prong) would lead them to base their appeal on the argument that both the district and appeals courts were in error in finding that Harvard’s use of race was justified by current Supreme Court doctrine and precedents.

Judge Allison Burroughs’s district court opinion provides many fat targets for this argument. She forthrightly recognized that “Race conscious admissions will always penalize to some extent the groups that are not being advantaged by the process,” and her opinion provides chapter and verse of the myriad penalties Harvard imposes on Asian applicants. For example:

• that Asian applicants would have been admitted at a significantly higher rate if race and ethnicity were not considered;
• that “race is a determinative tip for approximately 45% of all admitted African American and Hispanic applicants.” Since, as the circuit court noted, the Supreme Court has held “race conscious” admissions programs unconstitutional “when race becomes the dominant factor in admissions,” why is this “determinative tip” not “dominant”?
• that Asian applicants had the highest academic and extracurricular records but were ranked by Harvard admissions staff as having the lowest “personal” scores of all ethnic groups. Harvard failed to explain this low ranking, and Judge Burroughs concluded “that the data demonstrates a statistically significant and negative relationship between Asian American identity and the personal rating assigned by Harvard admissions officers.”

I have discussed problems with Judge Burroughs’s opinion here and here, and I believe one of those problems deserves special attention: she argues repeatedly that Harvard did not intentionally discriminate against Asians because the differential treatment and penalties it imposed did not result from “bias” or “discriminatory animus” or “conscious prejudice.” She insisted that “there is no evidence of any racial animus whatsoever or intentional discrimination on the part of Harvard beyond its use of a race-conscious admissions policy.”

But that is a far “beyond,” for the core of its “race-conscious admissions policy” is intentionally limiting the admission of a hefty number of Asians each year because they are Asian. Whatever race-sensitive or holistic rhetorical camouflage is applied to this policy, it is clearly discrimination based on race or ethnicity, and the only question is whether it is legal, which takes us to the second fork.

Fork Two leads to an argument that the Supreme Court’s precedents and resulting doctrine are ripe for reversal—that, as practiced in higher education, the costs of “diversity” are too high and its benefits too few for it to be a “compelling” justification for racial discrimination, no matter how “narrowly” the discrimination is “tailored”; that discriminating on the basis of race looks odious no matter how “strict” the “scrutiny”; that, finally, Title VI means what it says, not what an ideologically shifting cast of Supreme Court justices thinks “equal protection” means.

Perhaps the best evidence that current Supreme Court doctrine is deficient is that it does not provide clear guidelines, which has led to a steady stream of affirmative action cases. How narrow, for example, must the tailoring of discrimination be for it to pass muster? Consider the following from Judge Burroughs’s opinion (emphasis added):

• “[T]he burden Harvard’s race-conscious admissions policy places on Asian American applicants is not undue.”
• “Harvard’s admissions program . . . does not seem to unduly burden Asian Americans despite the fact that some percentage of Asian American applicants have received lower personal ratings than white applicants who seem similarly situated.”
• “[C]omments on application files and Admissions Office correspondence do not suggest any pervasive bias against Asian Americans.”
• “As reflected by the data, Harvard does not systematically exclude Asian Americans….”

The Court could easily find these judgments mistaken and reverse under current doctrine, but the impossibility of knowing in advance how much discrimination is undue, how much bias is allowed, and how much exclusion makes it systematic invites the argument that the current doctrine should be scrapped altogether.

Whether or not “diversity” is a “compelling” justification for discrimination is usually discussed in terms of its purported benefits, hard though they are to quantify. Amicus briefs in the Fisher case filed by Abigail Thernstrom et al., Richard Sander and Stuart Taylor, Jr., Gail Heriot et al., and the Pacific Legal Foundation et al. all criticized the underwhelming nature of the social science literature promoting diversity. In a devastating comment on Fisher, Roger Clegg itemized a seemingly endless list of some of  the costs of diversity. Finally, one must ask: “compelling” to whom? “I don’t see how in the world the Supreme Court can conclude” that diversity is a “compelling” justification for discrimination, Gail Heriot has pointedly observed, “when the public doesn’t view it as compelling (or even minimally persuasive).” After the recent Proposition 16 vote, her argument is even more powerful.

Regarding which fork to take at the Supreme Court—whether to argue that the two lower courts were mistaken in holding that Harvard’s discrimination is justified by current doctrine, or that the doctrine should be replaced—I suspect that SFFA’s lawyers, being lawyers, will conclude that they have no choice but to follow Yogi Berra’s advice and take both forks—that is, make both arguments.

Chief Justice Roberts has famously argued that “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” Now that the Court’s newest Justice is a committed textualist, perhaps the cleanest, most direct path to that result is to hold that Title VI means what it says.

Image: Daderot., Public Domain