Affirmative Action, Minority Issues, SCOTUS, Supreme Court

Opponents Of Affirmative Action Will Get Another Bite At The Apple Next SCOTUS Term

Columnist Renwei Chung looks at an important case that's on its way back to the Supreme Court.

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“If I mentioned all of my skeletons, would you jump in the seat? / Would you say my intelligence now is great relief? / And it’s safe to say that our next generation maybe can sleep / With dreams of being a lawyer or doctor, instead of boy with a chopper.” — Kendrick Lamar

Last week, the Supreme Court granted certiorari in Fisher v. University of Texas at Austin. This is the second time that Fisher has come before the Supreme Court. As noted by Forbes, in 2013, SCOTUS reversed a Fifth Circuit Court of Appeals decision dismissing Fisher’s case and ordered the lower court to reexamine University of Texas at Austin’s affirmative action through the lens of strict scrutiny. Strict scrutiny is the most demanding form of judicial inquiry, reserved for laws that can affect freedom of speech or racial discrimination.

As noted by the Volokh Conspiracy’s Ilya Somin, this was a major change from SCOTUS’s previous decision in Grutter v. Bollinger (2003), which gave extensive deference to the judgment of university administrators on whether racial preferences are needed, because such questions involve “complex educational judgments in an area that lies primarily within the expertise of the university.”

Many recognize Edward Blum as the mastermind behind the plaintiff Abigail Fisher, a white applicant who was denied admission to the University of Texas at Austin for the Fall 2008 entering class. For those unfamiliar with Blum, he is also the architect behind the affirmative action cases against Harvard and the University of North Carolina at Chapel Hill. Despite Blum’s rather reductive use of Asian Americans as a model minority to dismantle affirmative action programs, many Asians are actually strong proponents of affirmative action. I often wonder why affirmative action policies are argued and contested in courtrooms and on the front page of newspapers, while we allow legacy policies that promote the exact opposite to be rationalized and agreed upon in hallowed halls and behind closed doors.

The supposed issue this time around is whether the Fifth Circuit’s re-endorsement of the University of Texas at Austin’s use of racial preferences in undergraduate admissions decisions can be sustained under this Court’s decisions interpreting the Equal Protection Clause of the Fourteenth Amendment. Despite the plaintiff’s claims that she is not asking for the Court to overrule Grutter, it is hard to believe that SCOTUS does not plan to play at the margins.

As Justice Sonia Sotomayor put it in a question to Bert Rein, who argued on behalf of Abigail Fisher the last time around:  “You don’t want to overrule Grutter, you just want to gut it.” As noted by Scott Jaschik, “the Supreme Court historically doesn’t take up cases just a few years after a similar case, unless there is a specific desire to change things, or a split has developed among appeals courts. In this case, the case is the same one from just two years ago, and there are no conflicting appeals court rulings.”

Justice Ginsburg filed the sole dissent in the original Fisher case, a 7-1 ruling for the strict scrutiny standard of review for UT’s affirmative action program. Justice Kagan has recused herself from the case. Justice Kennedy has never voted to uphold an affirmative action program. The justices who seek to invalidate race-based affirmative action do so on the basis of a “color-blind” interpretation of the Constitution. The question is not whether the current principles governing race-conscious admissions will be altered, but rather how much they will be altered.

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Then again, I wonder if Chief Justice Roberts regrets stating, “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” As I have previously mentioned, Roberts’s famous line doesn’t sit well with me because he used Justice John Marshall Harlan’s “Our constitution is colorblind” argument out of context.

As the lone dissenter in the 1896 case Plessy v. Ferguson (the origin for the “separate but equal” philosophy and ultimately the Jim Crow system), Harlan wrote, “In the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. Our constitution is colorblind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law.” If we are to truly understand Roberts’s foundation for his colorblind commitment, we should understand the context of Harlan’s dissent – the nexus for the colorblind philosophy.

Prior to declaring the “constitution is colorblind,” Harlan stated, “The white race deems itself to be the dominant race in this country. And so it is in prestige, in achievements, in education, in wealth and in power. So, I doubt not, it will continue to be for all time if it remains true to its great heritage and holds fast to the principles of constitutional liberty. But in view of the Constitution, in the eye of the law. . . Our Constitution is color-blind.”

Justice Harlan’s prefatory comments about the “white race” make the progeny of this “colorblind” philosophy disingenuous at best. The “colorblind” term was certainly never meant to support the view that “the way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” In fact, the nexus for the “colorblind” philosophy suggests exactly the opposite.

Justice Henry Brown’s majority opinion in Plessy rationalized the “separate but equal” principle by stating that if the “separate but equal” principle carried any “badge of inferiority” for African Americans, “it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it.” I often hear remnants of this rationalization for inherently unequal systems today. It wasn’t that long ago (1927) that Asian-Americans were also banned from attending schools reserved for whites.

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In his book For Discrimination: Race, Affirmative Action, and the Law, Randall Kennedy presents reasoning for and against affirmative action. Kennedy argues that “overwhelming evidence indicates that the framers of the Fourteenth Amendment did not intend to create a colorblind Constitution,” since the Fourteenth Amendment was actually designed to foster citizenship for a special class, African-Americans. This obviates the argument that race-based decisions for the purpose of affirmative action are unconstitutional.

Affirmative action exists today only because Justices O’Connor, Stevens, Souter, Ginsburg, and Breyer narrowly won the day (5-4) in 2003’s Grutter v. Bollinger. Regardless of your views regarding affirmative action, it is important to understand the logic behind such proposals. Whether you deem a policy impossible to implement or believe our system should be “colorblind,” it is important to understand the history of such policies and the legacies of our system. For some, it is race-consciousness that is racism. For others, racism is reality and history.

SCOTUS has granted several cases for next term in areas such as affirmative action, voting rights, union organizing and class action lawsuits. Opponents of affirmative action will get yet another bite at the apple next year. How do you think the Court should rule on this issue? How do you think the Court’s ruling will affect diversity in the legal profession?

Renwei Chung is the Diversity Columnist at Above the Law. You can contact Renwei by email at projectrenwei@gmail.com, follow him on Twitter (@renweichung), or connect with him on LinkedIn.

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