Why Judges Can't Hear Each Other on Affirmative Action

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The law says such programs benefit society as a whole. But the judges—on both sides—think of it as a favor that "we" do for "them."

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People supporting the University of Texas rally outside the Supreme Court in Washington, Wednesday, Oct. 10, 2012. The Supreme Court is taking up a challenge to a University of Texas program that considers race in some college admissions. (AP Photo / Susan Walsh)

As families gather around the holiday table, certain topics are taboo. They can instantly transform jovial uncles, charming cousins, and stalwart siblings into slavering, angry zombies, slightly less appealing than extras on The Walking Dead.

Tim Tebow is such a subject. Another is affirmative action. It usually takes no more than one exchange for the cranberry jelly to start flying, along with self-righteousness, accusation, and insult.

And that's just at the Article III judges' table.

At least four members of the Supreme Court are eager to overturn Grutter v. Bollinger, a case only nine years old that upheld the power of universities to consider race in their admissions process. Meanwhile, the Sixth Circuit Court of Appeals has begun another judicial food fight over the issue (the last one led to two investigations of improper behavior).

In its en banc opinion in Coalition to Defend Affirmative Action v. Regents of the University of Michigan, a majority of the court's active judges held that the voters of Michigan violated the constitution by voting for a constitutional amendment providing that the state's educational system "shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin." As Adam Liptak pointed out in The New York Times, the majority includes every Democratic appointee on the court and no Republicans; the dissenters include all the Republican appointees and no Democratic ones. The case is not a pretty sight.

I say that not only because of the evident anger between the sides. I say it also because the language used by both sides illustrates the inability of American law to talk about affirmative action honestly.

To understand why I say that, consider that since the 1978 decision in Regents of the University of California v. Bakke, colleges and universities have been permitted to use race in admissions for one purpose and one purpose only—to secure what Justice Powell in Bakke called exposure "to the ideas and mores of students as diverse as this Nation of many peoples." The Regents, defending their affirmative action program, offered other reasons, mostly centered around the idea of opening graduate education to minorities and boosting their status in society. Powell, however, ruled those interests invalid, and they have remained off the table ever since.

A majority of the Court in Grutter reaffirmed the educational benefits of diversity as the sole interest a university could pursue in an affirmative action program in admissions. In fact, it said, the

benefits [of a diverse student body] are substantial. . . . [T]he Law School's admissions policy promotes "cross-racial understanding," helps to break down racial stereotypes, and "enables [students] to better understand persons of different races." These benefits are "important and laudable," because "classroom discussion is livelier, more spirited, and simply more enlightening and interesting" when the students have "the greatest possible variety of backgrounds."

The quote above gives no indication that affirmative action programs are designed to, or permitted to, benefit minority students in particular. Search the Bakke and Grutter opinions carefully, and you won't find language saying that. Instead, the current law of affirmative action states flatly that consideration of race in admissions is a means to an educational goal: a better learning experience for all the students in the school.

In other words, under the current law, affirmative action is not a favor the majority does for minorities. It is a mechanism we have adopted for the benefit of society as a whole. "These benefits are not theoretical but real, as major American businesses have made clear that the skills needed in today's increasingly global marketplace can only be developed through exposure to widely diverse people, cultures, ideas, and viewpoints," the majority in Grutter said. "What is more, high-ranking retired officers and civilian leaders of the United States military assert that, '[b]ased on [their] decades of experience,' a 'highly qualified, racially diverse officer corps ... is essential to the military's ability to fulfill its principle mission to provide national security.'"

I happen to think that this rationale for affirmative action is perfectly sound. As both our national and global demographics change, America can't succeed if we train leaders who do not know or understand people different from themselves. Affirmative action helps all students learn to do that, and helps all of us by giving us leaders who can do so.

But nobody—at least almost nobody on the bench these days—talks about it that way. When the issue of affirmative action came before the Supreme Court earlier this fall, Justice Alito asked the lawyer for the University of Texas this question:

If you have . . . an applicant whose parents are—let's say they're—one of them is a partner in your law firm in Texas, another one is a part—is another corporate lawyer. They have income that puts them in the top 1 percent of earners in the country, and they have—parents both have graduate degrees. They deserve a leg-up against, let's say, an Asian or a white applicant whose parents are absolutely average in terms of education and income?

Of course, had the University's plan been designed to benefit those who "deserve" a leg up, their program would have been facially invalid. But no matter what the language in the caselaw, opponents of affirmative action interpret it as a policy to give benefits to minorities who may not "deserve" them.

Unfortunately, that mistake isn't limited to opponents. The en banc majority in the Michigan case makes use of two precedents, one from the 60s and another from the 80s. In one, a majority of the voters in Akron, Ohio, changed the city charter to ban open-housing laws; in the other, a statewide vote in Washington amended the state constitution to forbid school busing for purposes of voluntary school integration. The Supreme Court in both cases struck down the new enactments because, it said, they scrambled the political process to make it harder to adopt a program that the Court in the Washington case said "inures primarily to the benefit of the minority, and is designed for that purpose."

The Sixth Circuit majority uses these precedents and cites that language. A Ninth Circuit panel in 1997 had looked at the same arguments in relation to an anti-affirmative action initiative and rejected them. There are strong arguments on both sides, and the majority, right or wrong, does not deserve the conservative abuse heaped on it. But the majority does make a revealing choice; it does not pay even lip service to the idea that affirmative action benefits society as a whole. The initiative, it said is to be judged by "whether racial minorities are forced to surmount procedural hurdles in reaching their objectives." Affirmative action is a "minority" objective. It is something we do for them.

The dissenters are equally direct. They suggest that affirmative action is a government giveaway to undeserving minorities. In his vitriolic dissent, Judge Danny Boggs (whose complaints during Grutter led to the investigation of the Court) describes the program this way: "discrimination may be practiced in favor of certain racially or ethnically defined minorities, primarily African-Americans (or perhaps those deemed to be 'black,' whether or not actually 'American') or 'Hispanics' (although there was some evidence that some groups generally defined as "Hispanic" (especially Cuban) might be discriminated against rather than in favor of . . . .)"

Judge Jeffrey Sutton, also in dissent, describes affirmative action as designed "to facilitate the educational opportunities of disadvantaged racial minorities."

If a lawyer defending affirmative action were to describe a program in these terms—the terms, that is, used by both the pro-affirmative action minority and the anti-affirmative action dissent—the case would be lost on the spot. Lawyers must tiptoe before the courts and talk about "the educational benefits of diversity" while the judges think only about the benefit being conferred directly on minority students.

Is it any wonder that the caselaw is confused?

There are many reasons to defend affirmative action—opening the doors of society to those who have been excluded, for one, and compensating present-day discrimination that minorities encounter throughout their lives. If those reasons were legitimate, then I think the Sixth Circuit majority would be on relatively firm ground. But currently the courts insist those reasons do not count. But they are the only things that the judges are thinking about, and lawyers can't address them. Until we agree on our terms, the constitutional dialogue on affirmative action will be like dinner at the most miserable Christmas dinner table ever.

The odds are high that affirmative action will soon be a thing of the past. The conservative majority is so eager that it granted cert this term in a case entirely unsuited for the purpose. If that case proves an unsuitable vessel for their project, they will find another next term, or the term after that.

I think that will be a tragedy. Others whom I respect will rejoice. But I think it will be even more tragic if we destroy the institution without having an honest discussion about why it has survived so long.

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Garrett Epps is a contributing writer for The Atlantic. He teaches constitutional law and creative writing for law students at the University of Baltimore, and is the author of American Epic: Reading the U.S. Constitution.

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