Affirmative Action Dead(er)

I told you last year (LINK) that affirmative action is dead. And so it remains. Well, not technically, but practically. Yesterday, the Supreme Court gave permission to remove the corpse. Let’s discuss.

In June of last year, I told you about the Fischer v. University of Texas case. That case involved a white student who sought admission to UT but ran into their admissions policies which favored minority students. She sued claiming discrimination in violation of the 14th Amendment’s Equal Protection clause.

She lost at the lower levels with the Fifth Circuit Court of Appeals pointing to the Supreme Court’s decision in Grutter v. Bollinger which allows colleges to use race “as one of many plus factors” in admissions decisions. According to Grutter, colleges cannot set aside places by race, but they can grant minorities extra points for their race provided that race is one of many different “plus” factors that can be awarded AND provided that race is not the predominant deciding factor.

That’s stupid, however. This “you can consider it, but you can’t base your decision on it” works out logically to X is true, but just not THAT true, and logically speaking, that’s nonsense. Morally speaking, this is nonsense as well. Either the use of race is acceptable or it is not. If it is acceptable then there is no reason to disallow its use. If it’s not acceptable, then it should not be allowed at all. And this attempt to allow its use, but not in any meaningful way, straddles the morality in such a way as to offend both sides.

Anyway, the Supreme Court was expected to use the Texas case to strike down affirmative action or to give it new life. They didn’t quite do either, however, and the result was that everyone in the media described the Supreme Court as “punting” on the issue of affirmative action.

Only, they hadn’t punted at all.

As I explained, the simps had misinterpreted the decision. What the Supremes held was that Texas, i.e. the state, bears the burden of proving both a “compelling state interest” in ensuring diversity at their schools AND that their method for achieving that goal of diversity is “narrowly tailored.” This is the standard “strict scrutiny” test for laws that violate fundamental rights like equal protection, and it’s hard to win.

In the Texas case, the action occurred in the second part of the test: the narrow tailoring. The Supreme Court held that Texas needed to show that under its plan to increase diversity, each applicant was still evaluated as an individual and not in a way that made an applicant’s race into the defining feature of their application. To do this, the Court held that Texas needed to prove that is it “necessary” for Texas to use race to achieve the educational benefits of diversity. “Necessary” in this case means this: “The reviewing court must ultimately be satisfied that no workable race-neutral alternatives would produce the education benefits of diversity.”

Bang! In other words, the school must show that it could not have generated diversity in any other way.

This was a death sentence for college affirmative action because there is no way to ever prove that race-based admissions are necessary. In fact, fearing the loss of affirmation action, schools everywhere found other ways to ensure diversity and thereby proved that race itself need never be a factor. That meant the Supreme Court ruling allowed affirmative action but only if you can pass an impossible test to demonstrate your need for it. Some punt.

Well, now the Supreme Court has “punted” again on affirmative action. This time, the issue involves a voter-backed initiative in Michigan which changed the Michigan constitution to prevent the state from using race as a factor in college admissions. Conservatives hoped the Supremes would strike down affirmative action. Liberals hoped the Supremes would call it a constitutional right and strike down any attempt by the public to end it. The Supremes did neither.

In a 6-2 ruling, the Supremes refused to strike down affirmative action in principle, but they held that nothing in the Constitution disallowed the voters in a state choosing to ban it in their state. So nothing changes?

Not quite.

The key to get out of this case is that affirmative action is not a right. If the Court believed that you had a right to affirmative action, then it would have followed its own lead in the gay cases where the Court struck down preemptive attempts to ban gay rights legislation. The Court didn’t apply those, however, and that means affirmative action isn’t a right protected by the constitution. Basically, affirmative action is just another goodie that you can vote on.

So what does that mean? It means that the states are now free to wipe it out without federal courts having the ability to question the state for doing so. The Congress can do this too. In effect, the Supreme Court has said, “Yes, we allow Affirmative Action, but we don't require it, so go ahead and wipe it off the map if you like.” And, adding the prior case, “if you do intend to keep it, then be prepared to prove that race preference was the only possible way to achieve your goal.” That's a death sentence.

So why not just wipe it out? Because this is a savvy way for the Court to kill something without putting their fingerprints on the murder weapon. If you ask them, they will swear that Affirmative Action is still the law of the land... you just won’t find it anywhere within a few years.

Add this to the Supremes ripping the heart out of the Voting Rights Act and I see a Court that is determined to get Uncle Sam back out of the racial spoils game. Interesting times.