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Is Affirmative Action Doomed?

1.

Is affirmative action unconstitutional? Does it violate the Fourteenth Amendment’s guarantee of “equal protection of the laws” for universities to give preference to blacks and other minorities in the fierce competition for student places, as the best of our universities have done for thirty years? In 1978, the late Justice Lewis Powell, in his opinion in the Supreme Court’s famous Bakke decision, ruled that racial preferences are permissible if their purpose is to improve racial diversity among students, and if they do not stipulate fixed minority quotas, but take race into account as one factor among many. Since four other justices in that case would have upheld even a quota system, five of the nine agreed that plans meeting Powell’s tests were constitutional.

Many lawyers fear that the Supreme Court will soon reconsider its Bakke ruling, however, and declare that any racial preference in an admissions process is, after all, unconstitutional. In 1996, the Fifth Circuit Court of Appeals, in the Hopwood case, struck down the Texas Law School’s affirmative action plan, and two of the three judges in the panel declared that recent Supreme Court decisions about affirmative action policies in areas other than education have already in effect overruled Bakke, so that all university affirmative action is now unconstitutional.1

The Fifth Circuit’s decision had immediate and, in the view of the Texas Law School’s faculty, disastrous results: that school had admitted thirty-one black students in 1996, but it enrolled only four in 1997. The Supreme Court refused to review the decision, but the Center for Individual Rights, a Washington, D.C.-based organization that had facilitated the Hopwood litigation, has already filed a new lawsuit in Michigan challenging the University of Michigan’s affirmative action plan, and other suits can be expected in other jurisdictions. The Supreme Court will have to rule on the matter soon.

It will be not only ironic but sad if the Court reverses its own longstanding ruling now, because dramatic evidence of the value of affirmative action in elite higher education has just become available. Critics of the policy have long argued, among other things, that it does more harm than good, because it exacerbates rather than reduces racial hostility, and because it damages the minority students who are selected for elite schools where they must compete with other students whose test scores and other academic qualifications are much higher than their own. But a new study-The Shape of the River by William G. Bowen and Derek Bok-draws on a huge database of information about student records and histories, and on sophisticated statistical techniques, not only to refute those claims but to demonstrate the contrary.2 According to the River study, affirmative action has achieved remarkable success: it has produced higher rates of graduation among black college students, more black leaders in industry, the professions, and community and neighborhood service, and more sustained interaction and friendship among different races than would otherwise have been possible. (I have discussed the findings and implications of this study, in detail, in the last issue of The New York Review.3 ) If the Supreme Court declares affirmative action unconstitutional, the study declares, black enrollment in elite universities and colleges will be sharply reduced, and scarcely any black students will be admitted to the best law and medical schools. 4 That would be a huge defeat for racial harmony and justice. Will the Supreme Court rule that the Constitution requires us to accept that defeat?

The Fifth Circuit judges are convinced that it will, and if we are to understand why they think so, and why so many commentators fear that they are right, we must explore the apparatus of legal doctrines and distinctions that the Court has developed, over the last several decades, to assist it in applying the equal protection clause I mentioned; for this is one of those instances, created by our constitutional system, in which America’s social and political future hinges on careful legal analysis.

The equal protection clause does not, of course, protect citizens from all legal distinctions or classifications that work to their disadvantage. Government must decide which medical research to support, which art to subsidize, which industries or products to protect by tariffs or other trade policy, which businesses to regulate for environmental reasons, where to locate a new army base or airport or a new nuclear waste dump, and thousands of other matters that will affect the fates and fortunes of different citizens very differently. Officials make such decisions for a variety of reasons. In principle, they should aim at decisions that, though they benefit some citizens and disadvantage others, are in the general interest of the community as a whole. In practice, interest-group politics often play a crucial part: an industry that is denied protection or selected for regulation may have lost its legislative battle, not because a different decision would have been less in the public interest, but because it lacked the political power, on this occasion, to force that different decision.

The equal protection clause is violated, not whenever some group has lost an important decision on the merits of the case or through politics, but when its loss results from its special vulnerability to prejudice or hostility or stereotype and its consequent diminished standing-its second-class citizenship-in the political community. The clause does not guarantee each citizen that he will benefit equally from every political decision; it guarantees him only that he will be treated as an equal-with equal concern and respect-in the political processes and deliberations that produce those decisions.

But the Fourteenth Amendment therefore poses a special difficulty for the courts that must enforce it: it requires them to judge not merely the consequences of legislation for different groups, but the motive behind that legislation. Was the law that injures this or that group the product of a forbidden, prejudiced attitude toward that group, or of more benign motives? It is extremely difficult to attribute motives and attitudes to general legislation, not just because it is difficult to identify the psychological states of different individual legislators and other officials, but for the deeper reason that it is often unclear how we should translate those individual motives—and the motives and attitudes of the constituents in whose interests the legislation has supposedly been adopted—into an overall motive that we can attribute to the legislation itself.5

In some cases, that judgment seems easy, at least in retrospect. The Court rightly decided, in 1954, that racial school segregation violated the equal protection rights of black children, because segregation signaled their inferiority and exclusion. It rightly decided, in 1996, that a Colorado state constitutional amendment forbidding any local antidiscrimination protection for homosexuals violated the equal protection rights of members of that group, because, as Justice Anthony Kennedy said, “the amendment seems inexplicable by anything but animus toward the class it affects….” 6

Other cases, however, are much more difficult to assess. Does a local rent-control ordinance, for example, express a theory about wise and fair housing management or a special hostility toward landlords as a class? It seems silly to invite judges to review the political sociology of every piece of legislation that anyone challenges, because they have neither the time nor the equipment for such studies. It also seems dangerous to democracy, because judges might overrule democratic decisions on the barest speculation of improper motives.7

The courts have instead tried to approach the question of motive indirectly, through doctrines intended to “smoke out” improper motives by concentrating on the apparently more objective question of a law’s actual effects. They subject all political decisions that are challenged on equal protection grounds to an initial threshold classification. If a decision imposes serious disadvantages on what the Supreme Court has called a “suspect” class-a class, according to one prominent definition, that is “saddled with such disabilities, or subjected to such a history of purposeful unequal treatment, or relegated to such a position of political powerlessness as to command extraordinary protection from the majoritarian political process”8 -then the decision is to be subject to “strict scrutiny.” This means that it must be rejected as violating the equal protection clause unless the disadvantage can be shown to be essential in order to protect some “compelling” governmental interest. But if those whom a law disadvantages do not form such a “suspect” class-if they are only the members of a particular business or profession or the residents of a particular area, and are not different from their fellow citizens in any way historically associated with prejudice or antipathy-then that law is subject to only a “relaxed” scrutiny: it is constitutional unless it can be demonstrated to serve no purpose or point at all.

The initial assignment of any particular law or decision to one or the other of these “levels of scrutiny” has almost always proved final. As one leading commentator put it long ago, strict scrutiny is “‘strict’ in theory and fatal in fact,”9 because almost no interest has seemed sufficiently “compelling” to justify imposing further disadvantage on a suspect class,10 and “relaxed” scrutiny is in effect no scrutiny at all, because some purpose or other can always be attributed to even the most inane legislation.

So lawyers considering the constitutionality of affirmative action programs naturally begin by asking whether such programs should be initially classified as requiring strict or only relaxed scrutiny. But they have great difficulty answering that question, because neither choice seems fully appropriate. On the one hand, affirmative action plans seem entitled to relaxed scrutiny, because though they use racial classifications, the group they mainly disadvantage-white applicants to colleges and universities-do not constitute a “suspect class,” that is, a class that has been the victim of prejudice. But race is so closely associated with bias and favoritism that some racial classifications which seem benign on the surface might turn out, after a closer look, to be constitutionally offensive. Black municipal councils might conceivably have acted to favor black businesses out of racial solidarity, for example, or to punish innocent whites for the past racial crimes of their ancestors; a university admissions scheme that gives preference to blacks might conceivably have been constructed to reduce the number of Asian-Americans or Jews admitted.

Careful inspection would almost always disclose such improper motives—statistics could show whether any such group was disproportionately represented among the applicants displaced by affirmative action-but relaxed scrutiny would not permit that inspection. On the other hand, subjecting racial classifications that benefit “suspect” groups to the same standards of strict scrutiny as those classifications that impose further damage on those groups seems insensitive to the important moral differences between those two aims. It also seems perverse because, as the River study apparently demonstrates, affirmative action is one of the most effective weapons we have against the racism that strict scrutiny is designed to thwart.

So affirmative action presents a great challenge to the conventional doctrine, and lawyers and judges have suggested different responses to that challenge. The most direct-and I believe the most appealing-response would be to declare the level-of-scrutiny strategy inapposite to the problem. That strategy, as it has historically been understood and used, is designed to identify types of legislation that by their nature involve either so high a risk of invidious discrimination that invidiousness should be nearly irrevocably presumed or so low a risk that its possibility should be nearly irrevocably dismissed. Race- sensitive programs that are, on their face, designed to help a disadvantaged racial group fall into neither of these categories, and it is procrustean to try to force them into one or the other.

  1. 1

    Hopwood v. Texas, 78 F. 3d 932, certiorari denied 116 S. Ct. 2581 (1996). In my article in the last issue, I mentioned two dissenting opinions in the case; in fact these were dissents in a denial of rehearing a month later. The Lexis report of the case is in error in that respect.

  2. 2

    William G. Bowen and Derek Bok, The Shape of the River: Long-Term Consequences of Considering Race in College and University Admissions (Princeton University Press, 1998).

  3. 3

    See “Affirming Affirmative Action,” The New York Review, October 22, 1998.

  4. 4

    Abigail Thernstrom, who has been a firm opponent of affirmative action, has argued that the River study, in reaching its conclusions about the hypothetical consequences of race-neutral admissions policies, ignored the “cascading” effect: that some of the blacks who would have been accepted by highly selective schools under affirmative action, but would be rejected by those schools under a race-neutral standard, would then apply to and be accepted at a somewhat less selective school. See Abigail Thernstrom, “A Flawed Defense of Preferences,” Wall Street Journal, October 2, 1998. In fact, the River study called explicit attention to that effect, and it was plainly reflected in the book’s conclusion that race-neutral policies would reduce the number of blacks in the schools it analyzed by at least 50 percent. See The Shape of the River, pp. 35-42, Appendix B., p. 349, and Appendix Tables B.4 and B.5.

  5. 5

    I try to identify the various puzzles raised by the concept of a legislative intention, and to clarify that concept, in Chapter 9 of my book Law’s Empire (Harvard University Press, 1986).

  6. 6

    Romer v. Evans, 116 S. Ct. 1620. I discussed this decision in an earlier article in this journal, “Sex, Death and the Courts,” August 8, 1996.

  7. 7

    Many constitutional historians believe that the Supreme Court developed the set of doctrines I describe in the next paragraph, in stages, mainly in reaction to the hostility the Court aroused when it struck down central pieces of progressive economic legislation before and during the New Deal. See, for example, K.G. Jan Pillai, “Phantom of the Strict Scrutiny,” 31 New England Law Review 2, at 397 (1997).

  8. 8

    Justice Powell in San Antonio Independent School District v. Rodriguez, 411 U.S. 1, at 28 (1973). In that case, the Court rejected the suggestion that the poor, as such, constitute a suspect class. The concept of a suspect class is not itself free from serious difficulty and ambiguity, which I discuss in “Sex, Death and the Courts.” But these problems are not germane to the affirmative action controversy.

  9. 9

    Gerald Gunther, “The Supreme Court, 1971 Term-Foreword: In Search of Evolving Doctrine on a Changing Court: A Model for a Newer Equal Protection,” 86 Harvard Law Review 1, at 8 (1972).

  10. 10

    Some of the few exceptions-the “Japanese Internment Cases,” in which the Supreme Court upheld the internment of Japanese-American citizens during World War II-were unfortunate. See Korematsu v. United States, 323 U.S. 214 (1944), and Hirabayashi v. United States, 320 U.S. 81 (1943).

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