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William M. Leiter
The Nature of Affirmative Action
Affirmative action differs from other antidiscrimination efforts in that: (1) it targets and seeks to remedy societal bias (as manifested in public and private illegal action), not individual malefactors; (2) traditionally it has mandated race, ethnic, and gender‑conscious remedies for the disproportionately adverse effects—the so-called disparate impact—of societal discrimination on protected groups, whether or not specific discriminatory intent on the part of individual defendants can be isolated; (3) it seeks to integrate institutions by race, ethnicity, and gender; and (4) the goal of this process is to redress the disadvantage under which members of disparately impacted groups are said to labor—a goal extended by statute[2] to the disabled, and by the Obama Administration to the homosexual community.[3] The doctrine of disparate impact is particularly central to the quarrel over affirmative action, and has been a driving force behind the Obama Administration’s stated approach to educational admissions in that it is designed to reduce racial isolation and increase minority-student populations.
Diversity Theory
Diversity theory has come to importantly supplement disparate impact as the vehicle for affirmative action. Diversity theory is legally dubbed non-remedial in that it facially seeks no remedies for systemic discrimination. It centrally seeks a diversity of views in the classroom and in the workplace, arguing that ideological diversity is beneficial for education and the economy. On the other hand, disparate-impact advocacy seeks remedies for systemic discrimination, and is thus referred to in the law as remedial. While conceptually different, diversity and disparate-impact theories aim to achieve the same result: an increase in the number of underrepresented-protected racial/ethnic/gender groups in better educational and employment positions. In short, both theories are driven by the affirmative-action remedial motor, and, in fact, they are two sides of the same coin. Importantly though, diversity theory need not—unlike disparate-impact advocacy—demonstrate that there is a “strong basis in the evidence”[4] that racial/ethnic discrimination has occurred.[5] Clearly, the absence of the “strong basis in the evidence” requirement is supportive of the emergence of diversity theory as the current-day mantra of affirmative action.
What Are Racial Admissions Criteria? The Views of the Obama Administration and the Fisher v. Texas
The Obama Department of Justice’s amicus brief [6] for the Supreme Court’s Fisher v. Texas (2012) case read the Supreme Court opinion in Grutter v. Bollinger (2003)[7] as allowing universities:
to conclude that that the educational benefits of diversity, including racial and ethnic diversity, are essential to its educational mission, and that a university can therefore have a compelling interest in assembling a diverse student body. Diverse student enrollment not only “promotes cross-racial understanding, helps to break down racial stereotypes, and enables [students]to better understand persons of different races”; it also prepares all students to succeed in and eventually lead “an increasingly diverse workforce and society.” [8]
The brief went on to emphasize that the University of Texas Texas
In its 2011 postsecondary Guidance Letter to university administrators encouraging the promotion of diverse racial/ethnic student bodies, the U.S. Department of Justice’s Civil Rights Division and the Department of Education’s Office for Civil Rights underscored the educational benefits of diversity along with the goal of reducing racial isolation.[10] Interacting with students having different perspectives, the Guidance Letter read, “can raise the level of academic discourse both inside and outside the classroom; indeed such interaction is an education in itself. By choosing to create this kind of rich academic environment, educational institutions help students sharpen their critical thinking and analytical skills.”[11]
Along with a diversity Guidance Letter to university administrators, Obama Administration Departments of Education and Justice officials also forwarded a diversity Guidance Memorandum to K-12 school administrators. Both Memoranda noted that acquiring a diverse student body was an essential governmental objective, but one which had to conform with the dictates of the Equal Protection Clause of the U.S. Constitution. This required first the seeking out of workable approaches by administrators that were “racially neutral.” The K-12 Guidance Memorandum provided examples of what it deemed racial neutrality such as consideration by admissions officials of: parental education; student and neighborhood socio-economic status; and the nature of neighborhood housing--single family or multiple family. When these so-called racially neutral techniques proved insufficient, diversification could constitutionally also involve, the K-12 Guidance continued, race-conscious approaches consisting of those which are “generalized” and did not consider the race of the individual student (e.g., the racial composition of neighborhoods), and those which considered a student’s race. But the race of the individual student is a reference point, and could only be used as a “plus” factor—one factor among other non-racial factors important to the achievement of a diverse student body. Additionally, race-conscious approaches should be time-limited; not unduly burden any student; be flexible; and treat students individually and not as a mass. [12]
K-12 Guidance undertook the ticklish task of separating “race-neutral” undertakings and “race-conscious” techniques. As noted, race-conscious techniques were additionally divided into those which were generalized and did not take into account the race of the individual student; and race-conscious efforts which used race only as one factor in a holistic analysis. In contrast—without attempting to distinguish between race-neutral and race-conscious techniques-- the postsecondary-University Guidance Memorandum listed a variety of acceptable constitutionally sanctioned diversification efforts other than holistic review with race as one reference point. These other constitutionally-accepted techniques for diversification included: college admission for top-percentile graduates of high school and junior colleges; taking into account socioeconomic status and hardship conditions faced by the applicants; and the pursuit of “pipeline” and other outreach programs where universities would seed K-12 student interest in college attendance, and help them prepare to gain admission. The Kennedy majority opinion in Fisher v. Texas (2013) defined the use of race in admissions as that use where the reference to race was expressed explicitly. It also described its view of non-racial --and presumably constitutionally acceptable--techniques used by the University of Texas
In recent years the University has used three different programs to evaluate candidates for admission. The first is the program it used for some years before 1997, when the University considered two factors: a numerical score reflecting an applicant's test scores and academic performance in high school (Academic Index or AI), and the applicant's race. In 1996, this system was held unconstitutional by the United States Court of Appeals for the Fifth Circuit. It ruled the University's consideration of race violated the Equal Protection Clause because it did not further any compelling government interest. Hopwood v. Texas
The second program was adopted to comply with the Hopwood decision. The University stopped considering race in admissions and substituted instead a new holistic metric of a candidate's potential contribution to the University, to be used in conjunction with the Academic Index. This "Personal Achievement Index" (PAI) measures a student's leadership and work experience, awards, extracurricular activities, community service, and other special circumstances that give insight into a student's background. These included growing up in a single-parent home, speaking a language other than English at home, significant family responsibilities assumed by the applicant, and the general socioeconomic condition of the student's family. Seeking to address the decline in minority enrollment after Hopwood, the University also expanded its outreach programs.
The Texas State Legislature also responded to the Hopwood decision. It enacted a measure known as the Top Ten Percent Law, codified at Tex. Educ. Code Ann. §51.803 (West 2009). Also referred to as H. B. 588, the Top Ten Percent Law grants automatic admission to any public state college, including the University, to all students in the top 10% of their class at high schools in Texas that comply with certain standards. . . .
Following the Court's decisions in Grutter v. Bollinger [539 U.S. 306 (2003)] and Gratz v. Bollinger, 539 U. S. Michigan
Critics and Supporters of Diversity Theory in Education
The notion that producing “critical masses” of underrepresented racial groups would ideationally enhance the college intellectual environment and reduce racial isolation has been roundly criticized. Consider the 1996 Fifth Circuit’s approach in Hopwood v. Texas (1996)[14]:
Within the general principles of the Fourteenth Amendment, the use of race in admissions for diversity in higher education contradicts, rather than furthers, the aims of equal protection. Diversity fosters, rather than minimizes, the use of race. It treats minorities as a group, rather than as individuals. It may further remedial purposes but, just as likely, may promote improper racial stereotypes thus fueling racial hostility.
The use of race, in and of itself, to choose students simply achieves a student body that looks different. Such a criterion is no more rational on its own terms than would be choices based upon the physical size or blood type of applicants. . . . [15]To believe that a person's race controls his point of view is to stereotype him. . . . [16] Finally, the use of race to achieve diversity undercuts the ultimate goal of the Fourteenth Amendment: the end of racially-motivated state action. . . .[17]
The alleged benefits of ethno‑racial diversity benefits in higher education were challenged by Stanley Rothman, Seymour Martin Lipset, and Neil Nevitte.[18] They argued that existing research on diversity benefits relies heavily on students responding to questions about the educational merits of diversity--questions involving “valence” issues --that is, propositions that garner almost universal support, such as whether one supports freedom of speech. Consequently, large majorities of students respond positively. There are also indoctrination problems. Faculty members tell students that diversity affirmative action is valuable; students parrot back appropriate responses.[19]
In an effort to acquire a representative sample of the nation’s colleges, the Rothman, Lipset, and Nevitte study relied on a 1999–2000 survey covering 140 colleges, 4,088 students, 1,632 faculty, and 808 administrators. (Historically black colleges were not surveyed.) Students were questioned only on how well colleges educated and how hard students worked, not about the value of diverse student bodies. The answers were correlated with the number of African American, Asian, and Hispanic students on campus. The results: the greater race/ethnic diversity in student body populations, the greater the dissatisfaction expressed by students regarding their educational experience, and the greater was the dissatisfaction expressed by the faculty and administrators as to student preparedness.[20]
More recently, Princeton Professor Thomas J. Espenshade (a self-proclaimed friend of affirmative action in college admissions) reported the following in connection with his study of eight elite universities (four private and four public) between 1999 and 2003:[21]
§ Students who are admitted through affirmative action preferences are more likely to graduate toward the bottom of their classes.
§ One-half of African-American students and one-third of Hispanic students graduated in the lower 20% of their classes.
§ Only half of the respondents in the sample reported that they had a roommate or a close friend of a different race/ethnicity.
UCLA Professors Richard Sander and Stuart Taylor Jr., studying “very good” schools --where preferentially admitted students were academically better matched with other students than in more elite schools-- found that sizeable numbers of preferential admittees initially declare science or engineering as majors, but, scholastically overwhelmed, drift dramatically to easier majors. To Sander and Taylor, affirmative action students “are 30 to 40% less likely to get science degrees; they are twice as likely to fail the bar exam after law school, and they are likely to have less social interaction across racial lines.” Campus presidents reject notions of preferential admissions mismatch out of hand and passionately embrace racial and ethnic student body. [22]
In her Gratz v. Bollinger (2003)[23] dissent Justice Ginsburg focused on a centrally important remedial reason for campus administrative commitment to affirmative action in admissions, as well as to their potential responses to judicial rejection of preferences. At issue was the University of Michigan
The stain of generations of racial oppression is still visible in our society, see Krieger, 86 Calif. L. Rev.[1251], at 1253, and the determination to hasten its removal remains vital. One can reasonably anticipate, therefore, that colleges and universities will seek to maintain their minority enrollment--and the networks and opportunities thereby opened to minority graduates--whether or not they can do so in full candor through adoption of affirmative action plans of the kind here at issue. Without recourse to such plans, institutions of higher education may resort to camouflage. For example, schools may encourage applicants to write of their cultural traditions in the essays they submit, or to indicate whether English is their second language. Seeking to improve their chances for admission, applicants may highlight the minority group associations to which they belong, or the Hispanic surnames of their mothers or grandparents. In turn, teachers' recommendations may emphasize who a student is as much as what he or she has accomplished. See, e.g., Steinberg, Using Synonyms for Race, College Strives for Diversity, [*305] N. Y. Times, Dec. 8, 2002, section 1, p 1, col. 3 (describing admissions process at Rice University); cf. Brief for United States as Amicus Curiae 14-15 (suggesting institutions could consider, inter alia, "a history of overcoming disadvantage," "reputation and location of high school," and "individual outlook as reflected by essays"). If honesty is the best policy, surely Michigan
Constitutional Standards for Affirmative Action
At the constitutional level, critical constitutional disputes regarding affirmative
action have involved the Equal Protection Clause of the Fourteenth Amendment (applicable to state government) and its “component” embedded[25] by Supreme Court decree in the Fifth Amendment’s Due Process Clause which is applicable to the national government. The Equal Protection Clause prohibits any state government from depriving “any person within its jurisdiction the equal protection of the laws.” What level of judicial scrutiny of government action does the Equal Protection Clause and its Due Process Clause component require in connection with affirmative action? Should it be mid-tier or "strict"? To survive mid-tier review, an affirmative action program would have to serve an important government interest, and employ means that are substantially related to that governmental end. On the other hand, strict scrutiny requires a compelling governmental interest, and means which are narrowly tailored to achieve that compelling interest. After years of inconclusive Supreme Court debate as to the merits of mid-tier versus strict judicial review, strict scrutiny was adopted by the High Court for racial/ethnic governmental classifications, first for state government in Richmond v. Croson (1989),[26] and later for the federal government in Adarand v. Pena (1995).[27]
In Grutter v. Bollinger (2003),[28] a Supreme Court majority accepted the need for a diverse student body at the university as a compelling governmental interest. Further in that case, the Court accepted the University of Michigan Law School’s approach to the second prong of strict scrutiny, namely, narrowly tailoring. To the Law School
The vagueness of the critical mass standard prompted much commentary and questioning from members of the Supreme Court during the Fisher v. Texas (2012) oral arguments, a case that involved the University of Texas
Chief Justice Roberts: What is that number? What is the critical mass of African Americans and Hispanics at the university that you are working toward…? [H]ow are we supposed to tell whether this plan is narrowly tailored…?[30]
The spokesperson for the Obama Administration at the Fisher oral arguments, Solicitor General Verrelli, agreed with Justice Scalia’s recommendation to abandon the concept of critical mass –important to both the Guidance Letters described above. Instead, the Solicitor General urged the Court to focus on an equally vague “flexibility” standard[31] --a standard allowing universities
flexibility to shape their environments and their education experience to make a reality of the principle …that our strength comes from people of different races, different creeds, different cultures, uniting in a commitment to freedom, and to a more perfect union.[32]
The Supreme Court initially addressed the higher-education affirmative action issue in the early 1970’s. Some four decades later, the Court’s opinion in Fisher v. Texas has compounded the High Court’s already ambiguous treatment of race/ethnic preferential admissions to colleges and universities. The doctrine of judicial review allots to the High Court the function and duty of determining what the Constitution means. With respect to affirmative action for higher education, what the Constitution allows has been left unclear. And the Fisher majority opinion compounds this messiness, resulting in a failure of judicial review. Thus, a bedrock issue of what is a racial classification still remains. In the 1989 Richmond
An unmistakable split emerged among the circuit courts of appeal over whether strict scrutiny required where racial classifications are involved applies to facially-neutral goals/timetables plans. These cases involve "affirmative action" in the sense of the Office of Federal Contract Compliance Programs guidelines for administering the Executive Order 11246 program for government contractors -- that is, guidelines requiring the establishment of numerical goals and timetables for hiring and promoting minorities without formally requiring preferential hiring or treatment. Some circuits hold that such plans are not subject to strict scrutiny as racial classifications under Adarand because they do not unduly burden non-beneficiaries. [37] Other circuits hold, to the contrary, that Adarand's mandate must be applied literally, and that plans based on numerical hiring goals necessarily are racial classifications by encouraging quotas, even if they do not explicitly require preferential hiring.[38]
Likewise, in Fisher a Court majority seemed to accept the notion that racial classifications were restricted to actions which explicitly took race into account. Thus, the Texas ten percent plan, as well as holistic analyses which took into account applicant socioeconomic status, extracurricular activity, community service, parental languages, overcoming hardships—all of which Justice Ginsburg, as we have seen, found could be and were used by admissions officers to pursue the goal of reducing racial isolation, and thus might well be considered racial classifications. Further, the concurring opinions by Justices Scalia and Thomas in Fisher emphasized their near-comprehensive rejection of the use of race in the educational process[39] when not employed to remedy directly intentional forbidden discrimination.[40] And Justices Roberts and Alito appeared to make it clear in a previous education case[41] that they shared this virtually unqualified rejection.[42] Consequently, there are at least five Justices who appear to have taken a much broader view of racial classifications than that expressed by the Court in Fisher where such classifications seem restricted to the expressed, explicit use of race. If racial/ethnic classifications are so restricted, than the barriers of strict scrutiny in affirmative action –the topic of emphatic and extensive discussion by the High Court over the years as the medium for barring unconstitutional racial discrimination--amount to little or nothing at all. These barriers would not prevent the easy camouflaging of racial/ethnic discrimination through the use of non-racial/ethnic terminology.
The Fisher Court Fisher Court
Rather than the troublesome confusion of the Fisher majority, it may be that Justice Ginsburg provided the correct approach. She says in her Fisher dissent:
The University of Texas at Austin (University) is candid about what it is endeavoring to do: It seeks to achieve student-body diversity through an admissions policy patterned after the Harvard plan referenced as exemplary in Justice Powell's opinion in Regents of Univ. of Cal. v. Bakke, 438 U. S. 265, 316-317, (1978). The University has steered clear of a quota system like the one struck down in Bakke, which excluded all nonminority candidates from competition for a fixed number of seats. . . . And, like so many educational institutions across the Nation, 1 the University has taken care to follow the [critical mass] model approved by the Court in Grutter v. Bollinger, 539 U. S. 306, . . .
Petitioner urges that Texas
I have several times explained why government actors, including state universities, need not be blind to the lingering effects of "an overtly discriminatory past," the legacy of "centuries of law-sanctioned inequality." Id. U. S. U. S.
Accordingly, I would not return this case for a second look. As the thorough opinions below show, 631 F. 3d 213 (CA5 2011); 645 F. Supp. 2d 587, the University's admissions policy flexibly considers race only as a "factor of a factor of a factor of a factor" in the calculus, id., at 608; followed a yearlong review through which the University reached the reasonable, good-faith judgment that supposedly race-neutral initiatives were insufficient to achieve, in appropriate measure, the educational benefits of student-body diversity, see 631 F. 3d, at 225-226; and is subject to periodic review to ensure that the consideration of race remains necessary and proper to achieve the University's educational objectives, see id., at 226. 3 Justice Powell's opinion in Bakke and the Court's decision in Grutter require no further determinations. See Grutter, 539 U. S. U. S.
As the Court said in Grutter v. Bollinger, 539 U. S.
Copyright © 2013 by William M. Leiter. All rights reserved.
[1] U.S. June 24, 2013 . Accessible at http://www.supremecourt.gov/opinions/12pdf/11-345_l5gm.pdf
[2] The Americans With Disabilities Act as Amended Codified at 42 USC §12101 et seq. (2013). Accessible at http://www.ada.gov/pubs/adastatute08.htm
[3] See William M. Leiter, Affirmative Action through Executive Non-Enforcement, July 14, 2013 accessible at http://constlaw100.blogspot.com/ and William M. Leiter, LGBT Rights and the Constitution, July 4, 2013 , accessible at http://constlaw100.blogspot.com/2013_04_01_archive.html
[4] Richmond U.S.
[5] Peter Schuck, Diversity in America Cambridge Harvard University Sanford Durham , North Carolina
[6] Brief of the United States as Amicus Curiae Supporting Respondents in Fisher v. University of Texas, No. 11-345. p. 5. For entire brief, hyperlink to: http://www.justice.gov/osg/briefs/2012/3mer/1ami/2011-0345.mer.ami.pdf
[7] 539 U.S.
[8] Brief of the United States as Amicus Curiae Supporting Respondents in Fisher v. University of Texas, No. 11-345. p. 5 Citing Grutter v. Bollinger, 539 U.S.
[9] Brief of the United States in Fisher v. Texas, 7 (cited in note 6).
[10] U.S. December 2, 2011 . For entire letter, hyperlink to: http://www.justice.gov/osg/briefs/2012/3mer/1ami/2011-0345.mer.ami.pdf
[11] U.S. December 2, 2011 , p. 1. For entire document, hyperlink to http://www.justice.gov/osg/briefs/2012/3mer/1ami/2011-0345.mer.ami.pdf
[12] U.S. December 2, 2011 . For entire document hyperlink to http://www2.ed.gov/about/offices/list/ocr/docs/guidance-ese-201111.html
[13] U.S. Supreme Court Slip Opinion, No. 11-345, June 24, 2013, Kennedy majority opinion at pp. 2-4. Italics added. Accessible at http://www.supremecourt.gov/opinions/12pdf/11-345_l5gm.pdf
[14] 78 F3d 932 (5th Cir 1996); cert denied, 518 U.S.
[15] Id at 945.
[16] Id at 946.
[17] Id at 947.
[18] Racial Diversity Reconsidered, The Public Interest 25-38 (Spring, 2003).
[19] Id at 29-30.
[20] Id at 29-38.I
[21] Moving Beyond Affirmative Action, The New York Times, Op-Ed, October 5, 2012 , p. A21.
[22] Do race preferences help students? Los Angeles October 7, 2012 , p. A29.
[23] 539 U.S.
[24] Contrary to the Court's contention, I do not suggest "changing the Constitution so that it conforms to the conduct of the universities." Ante, at 156 L Ed 2d [257], at 284, n 22. In my view, the Constitution, properly interpreted, permits government officials to respond openly to the continuing importance of race. See supra, at 156 L Ed 2d [257], at 301-302. Among constitutionally permissible options, those that candidly disclose their consideration of race seem to me preferable to those that conceal it.
[25] See Bolling v. Sharpe, 347 U.S.
[26] 488 U.S.
[27] 515 U.S.
[28] 539 U.S.
[29] Id at 329
[30] U.S. Supreme Court, Oral Arguments in Fisher v. University of Texas, No. 11-345, October 1, 2012, p. 39. Hyperlink to entire document: http://www.supremecourt.gov/oral_arguments/argument_transcripts/11-345.pdf
[31] Id at 70-71.
[32] Id.
[33] U.S. June 24, 2013 . Accessible at http://www.supremecourt.gov/opinions/12pdf/11-345_l5gm.pdf
[34] 488 U.S. 469.
[36] 509 U.S.
[37] Allen v. Alabama State Board, 164 F3d 1347, 1353 (11th Cir 1999); Duffy v. Wolle, 123 F3d 1026, 1038-1039 (8th Cir 1997). See also Raso v. Lago, 135 F3d 11 (1st Cir 1998).
[38] Lutheran Church - Missouri Synod v. FCC, 141 F3d 344, 351-353 (DC Cir 1998); Monterey Mechanical Co. v. Wilson, 125 F3d 704, 709-713 (9th Cir 1997).
[39] U.S. Supreme Court Slip Opinion, No. 11-345, June 24, 2013 , The Scalia and Thomas concurring opinions. Accessible at http://www.supremecourt.gov/opinions/12pdf/11-345_l5gm.pdf See also the dissents by these Justices in Grutter v. Bollinger, 539 U.S 306, 346ff.
[41] Id at 551 U.S.701, 748.
[42] U.S. Supreme Court Slip Opinion, No. 11-345, June 24, 2013, Kennedy majority opinion, 10-11.
[43] 539 U.S.
[45] U.S. Supreme Court Slip Opinion, No. 11-345, June 24, 2013, Justice Ginsburg’s Dissent,1-4. (Hyperlinked at note 13.)
Very incisive, thoughtful remarks. I have a similar reaction to your other pieces. I will try to find more time to read more deeply of your work. There is way too much heat and too little light on these subjects.
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