June 25, 2013

Affirmative Action: The Door's Still Open

On Monday, the Supreme Court opted against a definitive ruling on the constitutionality of the University of Texas' race-based college admissions program and instead sent the case back to the U.S. 5th Circuit Court of Appeals for a closer look at the university's policy. Many will view the decision as a punt. But as football fans know, punts are often important plays in a game. And proponents of race-based affirmative action have every reason to see this play as working in their favor.

Affirmative action has tended to divide the court in consistent ways. Justices Antonin Scalia and Clarence Thomas (and, based on more general things they have said, likely also Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr., though these two did not tip their hands Monday) think that race consciousness is not a constitutionally permissible way to assemble a minimally diverse student body.

Other justices, especially Ruth Bader Ginsburg but also probably Stephen G. Breyer, Sonia Sotomayor and Elena Kagan, think universities should be allowed significant latitude to consider race to promote diversity, provided the schools are acting in ways that assist underrepresented racial minorities.

Justice Anthony M. Kennedy, who wrote Monday's ruling and whose views have held sway in recent affirmative action cases, has staked out an in-between space defined by a fundamental distrust of — but not an outright prohibition on — schools' use of race.

So why should universities feel comfortable about being confined to Kennedy's middle-ground territory? Because Kennedy could have moved into the ranks of the more conservative justices and adopted a rigid prohibition, but chose not to.

Writing for the majority, Kennedy expressed his long-standing view that "strict scrutiny" must be applied to any university's use of race. (Indeed, he chided the 5th Circuit precisely because it deferred to the university's judgment and failed to undertake an independent inquiry into whether the school had adequate justification for using race.)

And he added that a reviewing court "must ultimately be satisfied that no workable race-neutral alternatives would produce the educational benefits of diversity." By this, Kennedy was referring to the University of Texas' race-neutral Top 10 Percentage Plan (wherein the top 10% of each Texas high school is guaranteed admission regardless of standardized test scores or other metrics) that was already generating some diversity at the university. But, importantly, he did not require (or even come close to requiring) that all colleges try such percentage plans before adopting race-based programs.

Although Kennedy's "almost never" approach might seem analytically similar to the "colorblind" approach of more conservative justices, what counts most in the real world of affirmative action is the court's bottom-line answer to the question of whether the use of race is categorically forbidden. In this setting, a door for affirmative action that is slightly ajar is closer to being wide open than it is to being slammed shut; if the door is cracked at all, universities can maintain race-based programs. As the line from "The Princess Bride" goes, "There's a big difference between mostly dead and all dead."

Kennedy's stance has been that, although race consciousness is very hard to justify, it is not completely improper, and nothing in Monday's decision departs from that position. What this means practically is that most universities are still not prohibited from considering race as part of their admissions criteria. There is an exception, of course, in states that have passed laws prohibiting race as a criterion, such as California's Proposition 209.

In most states (and at private schools) though, we're likely to see universities continue to do what they've been doing. They will simply be careful to justify doing so in the precise terms Kennedy seems to want.

Of course, whether schools are truly complying with the letter or even the spirit of Kennedy's vision is another matter. Any justice saying "rarely but not never" faces the difficulty of crafting language that articulates precisely what is allowed and what is forbidden.

Kennedy tries by saying race consciousness must be "necessary" and "narrowly tailored" to the goal of diversity, but these words are inevitably susceptible to broader and narrower interpretations, especially because Kennedy makes clear that the proper understanding of these terms depends on context. Indeed, the fuzziness of this language enabled a wide range of justices (including Alito, Breyer and Sotomayor) to join Kennedy's opinion, even if they don't all agree on precisely what the standard means in every application.

As a result, universities — even those acting in good faith — can't know precisely where the line is, and thus can operate somewhat aggressively, adopting a reading of Kennedy's yardstick that, while debatable, permits them to continue to consider race in admissions decisions. And any challengers will have to take on the specific policy of each school, one at a time. This will remain true even if the 5th Circuit, on remand, strikes down the University of Texas' plan.

For good or ill, there is often a gap between what the law requires in the abstract and what the law means on the ground. And this gap may be wider the less absolute the governing legal principle is. That is one reason why some judicial umpires, most notably Scalia, prefer bright-line rules to case-by-case tests.

Cross-posted from The Los Angeles Times.