Affirmative Action goes before the Supreme Court again

From ABC News:

Affirmative Action: Supreme Court Justices Skeptical of University of Texas Plan


At the Supreme Court today, the conservative justices had skeptical questions for a lawyer defending the University of Texas’ plan that takes race into consideration in the admissions process.

One of their main concerns goes to the heart of the case: at what point does the court stop deferring to a university’s judgment that the consideration of race is still necessary?

“I understand my job under our precedents is to determine if your use of race is narrowly tailored to a compelling interest, “Chief Justice John Roberts said to Gregory Garre, a lawyer representing the University of Texas. “The compelling interest you identify is attaining a critical mass of minority students at the University of Texas, but you won’t tell what the critical mass is. How am I supposed to do the job that our precedents say I should do?”

Much more at the link. Here’s the video:

The Fourteenth Amendment to the Constitution of the United States states, in part:

  • Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
  • Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

That seems rather simple to me: the state may not treat anybody differently, and Affirmative Action is based upon the notion that the government may, and should, treat people differently based upon their race, ethnicity or sex. Alas! the very simple, very straightforward constitutional principle of granting to each person the equal protection of the laws seems to have been honored in the breach more than in fact.

In 2003, the Supreme Court allowed the University of Michigan’s Law School to retain an Affirmative Action policy which considered the race of the applicant as one of several factors in the case Grutter v Bollinger, 539 U.S. 306 (2003). A companion case, concerning undergraduate admissions at the University of Michigan, which granted 20 “points,” one-fifth of the points needed to guarantee admission, to every single “underrepresented minority” applicant solely because of race, was declared unconstitutional in Gratz v Bollinger, 539 U.S. 244 (2003). The swing Justice making the fifth vote in the 5-4 decision was Sandra O’Connor.

The Court depended on the opinion of Justice Lewis Powell in the first of the Affirmative Action cases, Regents of the University of California v. Bakke 438 U.S. 265 (1978), which allowed the University of California at Davis Medical School, based on the application of strict legal scrutiny of any race-conscious state activity. Justice Powell’s opinion in Bakke is the one most often cited, but there was no majority opinion in Bakke, and no other Justice joined in Justice Powell’s opinion.

Supporters of racial preferences had hoped, your Editor supposes, that the two University of Michigan cases had settled the matter. Of course, they did nothing of the sort: Justice O’Connor’s majority opinion in Grutter concluded:

We take the Law School at its word that it would “like nothing better than to find a race-neutral admissions formula” and will terminate its race-conscious admissions program as soon as practicable. It has been 25 years since Justice Powell first approved the use of race to further an interest in student body diversity in the context of public higher education. Since that time, the number of minority applicants with high grades and test scores has indeed increased. We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.

That meant that, at the very latest, the issue would be rejoined in 2028. But, free citizens being free to file suit, an injured party didn’t take being discriminated against quietly, and filed suit claiming that the University of Texas’ race-conscious admissions policies constituted illegal racial discrimination, and Fisher v University of Texas has reached the Supreme Court. The very inexact science of Justice counting does not bode well for Affirmative Action surviving, as “swing” Justice, Anthony Kennedy, both voted in the minority in Grutter and asked some hostile-seeming questions of Mr Garre today,1 and Justice O’Connor has retired, and has been replaced by the more conservative Samuel Alito.

The liberal editors of The Philadelphia Inquirer weighed in, in today’s lead editorial, concluding that, “Voiding affirmative action without offering viable alternatives would be devastating.”

It is reasoning like that which has led to this still unsettled mess. It is not, and should not be, the responsibility of the courts to “offer viable alternatives.” It is the duty of the legislature, of our elected representatives, to write the laws. It is the duty of our Supreme Court to decide whether the laws written by our legislatures fit within the restrictions of the Constitution.

And to your Editor, discrimination on the basis of race clearly does not. The words of the Fourteenth Amendment are simple and clear. In attempting to allow Affirmative Action, Justice Powell in 1978, and Justice O’Connor in 2003, came up with all sorts of good reasons why we should allow such well-intended discrimination, as long as the reason was a compelling state interest and the discrimination was narrowly tailored to achieve such goals. Actually upholding the clear words of the Constitution was just not going to be done.

Justice O’Connor’s conclusion, quoted above, shows the inherent weakness of Affirmative Action: the Court recognized that it couldn’t be continued forever, because it does run afoul of the Fourteenth Amendment, but, absent an unforeseen constitutional amendment, it seems wholly unreasonable to believe that something which is constitutional in 2003, or 2027 would become automatically unconstitutional the following year.

The simple thing, and the right thing, is for the five sensible Justices2 to rule that the Constitution actually means what it says, and puts an end to legalized state discrimination.3

  1. The transcript of the oral arguments.
  2. Chief Justice John Roberts, and Associate Justices Antonin Scalia, Clarence Thomas, Anthony Kennedy (sometimes) and Samuel Alito.
  3. Your Editor has no objections to private institutions employing some form of Affirmative Action; the Fourteenth Amendment and the Constitution as a whole does not apply to private action. § 601 of Title VI of the Civil Rights Act of 1964 provides that no person shall on the ground of race or color be excluded from participating in any program receiving federal financial assistance; Affirmative Action policies at private schools would seem to run afoul of that, but the Congress can amend that.

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