Stones in the Road

June 24, 2013- It's been a long, bumpy ride for the issue of affirmative action at the U.S. Supreme Court ever since Associate Justice William O. Douglas penned his poignant dissent in DeFunis v. Odegaard, 416 U.S. 312 (1974). For it was Douglas, by far one of the most liberal justices ever to don the robe at the Supreme Court, who wrote that:

"The Equal Protection Clause did not enact a requirement that law schools employ as the sole criterion for admissions a formula based upon the LSAT and undergraduate grades, nor does it prohibit law schools from evaluating an applicant's prior achievements in light of the barriers that he had to overcome. A black applicant who pulled himself out of the ghetto into a junior college may thereby demonstrate a level of motivation, perseverance, and ability that would lead a fair minded admissions committee to conclude that he shows more promise for law study than the son of a rich alumnus who achieved better grades at Harvard. That applicant would be offered admission not because he is black, but because as an individual he has shown he has the potential, while the Harvard man may have taken less advantage of the vastly superior opportunities offered him." (DeFunis, 416 U.S. at 331.)

Justice Douglas did not stop there, for he also wrote that:

"There is no superior person by constitutional standards. A DeFunis who is white is entitled to no advantage by reason of that fact; nor is he subject to any disability, no matter what his race or color. Whatever his race, he had a constitutional right to have his application considered on its individual merits in a racially neutral manner." (DeFunis, 416 U.S. at 337.)

Justice Douglas, like many others, was rightly concerned about what would happen if our Nation's universities entered the arena of racial entitlements. He cautioned:

"The reservation of a proportion of the law school class for members of selected minority groups is fraught with similar dangers, for one must immediately determine which groups are to receive such favored treatment and which are to be excluded, the proportions of the class that are to be allocated to each, and even the criteria by which to determine whether an individual is a member of a favored group. There is no assurance that a common agreement can be reached, and first the schools, and then the courts, will be buffeted with the competing claims. The University of Washington included Filipinos, but excluded Chinese and Japanese; another school may limit its program to blacks, or to blacks and Chicanos. Once the Court sanctioned racial preferences such as these, it could not then wash its hands of the matter, leaving it entirely in the discretion of the school, for then we would have effectively overruled Sweatt v. Painter, 339 U.S. 629 (1948), and allowed imposition of a 'zero' allocation. But what standard is the Court to apply when a rejected applicant of Japanese ancestry brings suit to require the University of Washington to extend the same privileges to his group? The Committee might conclude that the population of Washington is now 2% Japanese, and that Japanese also constitute 2% of the Bar, but that had they not been handicapped by a history of discrimination, Japanese would now constitute 5% of the Bar, or 20%. Or, alternatively, the Court could attempt to assess how grievously each group has suffered from discrimination, and allocate proportions accordingly; if that were the standard the current University of Washington policy would almost surely fall, for there is no Western State which can claim that it has always treated Japanese and Chinese in a fair and evenhanded manner." (DeFunis, 416 U.S. at 338.)

The key, he observed, "is consideration of such applications in a racially neutral way." (416 U.S. at 340.)

To those who would utilize a "compelling state interest" test -- the very essence of so-called strict scrutiny -- Justice Douglas responded:

"The argument is that a 'compelling' state interest can easily justify the racial discrimination that is practiced here. To many, 'compelling' would give members of one race even more than pro rata representation. The public payrolls might then be deluged say with Chicanos because they are as a group the poorest of the poor and need work more than others, leaving desperately poor individual blacks and whites without employment. By the same token large quotas of blacks or browns could be added to the Bar, waiving examinations required of other groups, so that it would be better racially balanced. The State, however, may not proceed by racial classification to force strict population equivalencies for every group in every occupation, overriding individual preferences. The Equal Protection Clause commands the elimination of racial barriers, not their creation in order to satisfy our theory as to how society ought to be organized. The purpose of the University of Washington cannot be to produce black lawyers for blacks, Polish lawyers for Poles, Jewish lawyers for Jews, Irish lawyers for Irish. It should be to produce good lawyers for Americans." (416 U.S. at 341-42.)

And further:

"If discrimination based on race is constitutionally permissible when those who hold the reins can come up with 'compelling' reasons to justify it, then constitutional guarantees acquire an accordion like quality." (416 U.S. at 343.)

So ... what's changed in the past 40 years? Not much constitutionally, and just in case you haven't noticed, the same Equal Protection Clause is still on the books. There have, however been several cases that have marked the long road to true equality in America, stones in the road, if you will, that tell us where we're headed. First, among them is Bakke -- the 1978 case that produced a flurry of conflicting opinions, yet one that has truly endured: the decisive vote (and words) of Associate Justice Lewis F. Powell, who allowed the UC Davis Medical School to utilize race in a limited way to help achieve a "diverse" entering class. (Regents of the Univ. of California v. Bakke, 438 U.S. 265 (1978).) But in the years that followed, questions lingered: whose race could be used? And how much of a factor could it be without crossing the constitutional line?

In 2003, we saw Gratz and Grutter -- two cases from Michigan. (Gratz v. Bollinger, 539 U.S. 244 (2003); Grutter v. Bollinger, 539 U.S. 306 (2003).) One of them outlawed fixed points for race in undergraduate admissions (Gratz); the other (Grutter) allowed the University of Michigan law school to consider race in an individualize way -- as a "plus factor" -- with a nod to the "Harvard program" explicitly endorsed by Justice Powell in Bakke.

But still the issue caused constitutional scholars, not to mention admissions officials or applicants and their families, to scratch at old wounds. Who gets the nod and who doesn't? Who's race counts, and for how long can schools use race as a plus factor?

On the last question, Associate Justice Sandra Day O'Connor, gave a hint ten years ago: "We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today." (Grutter v. Bollinger, 539 U.S. at 343.)

With the latest foray into this area -- at a mid-point in the 25-year lifespan predicted by Justice O'Connor -- many thought a more conservative court would sound a death knell for the use of race in university admissions. But not so fast. Whereas Fisher v. University of Texas was a tempting vehicle to do that job, train stopped -- frustratingly for some -- short of the station. Saying the Fifth Circuit did not properly apply the strict scrutiny test, the high court by a decisive 7-1 vote, passed on the opportunity to speak decisively about affirmative action and instead, punted back to a lower court to do the job.

But there are a lot of judicial comments to ponder in the various opinions in Fisher. First, make no mistake: there is probably a working majority that would -- if called upon in the right case -- vote to outlaw the use of race in college admissions, if not flat out overrule Gratz/Grutter (count on it from Associate Justices Antonin Scalia and Clarence Thomas, who said so in their respective concurring opinions in Fisher; we can also probably make book on Associate Justice Samuel Alito and probably Chief Justice Roberts joining the group in the right case.)

So, who's the fifth vote? It's likely Associate Justice Anthony Kennedy, who is the deciding vote in so many cases these days. He made no bones about his feelings in Fisher. Thus, he wrote for the 7-1 majority:

"Racial balancing is not transformed from 'patently unconstitutional' into a compelling state interest simply by relabeling it 'racial diversity.'" (Slip op. at 9.)

And:

"The University must prove that the means chosen ... to attain diversity are narrowly tailored to that goal. On this point, the University receives no deference." (Slip op. at 10.)

And finally, he made clear that "the admission process 'ensure that each applicant is evaluated as an individual and not in a way that makes an applicant's race or ethnicity the defining feature of his or her application.' " (Slip op. at 10, quoting from Grutter).

But why even consider race or ethnicity at all if it isn't going to make a difference? The whole point of using various "factors" in the admissions process is to utilize the ones that differentiate the applicants from one another so some can be admitted and others excluded.

In the end, said Justice Kennedy:

"The reviewing court must ultimately be satisfied that no workable race-neutral alternative would produce the educational benefits of diversity." (Slip op. at 11.)

To me, one of the most poignant passages of Justice Kennedy's majority opinion is the conclusion -- and remember that Associate Justices Sonia Sotomayor and Stephen Breyer signed on to this as well):

"Strict scrutiny must not be 'strict in theory, but fatal in fact.'...But the opposite is also true. Strict scrutiny must not be strict in theory but feeble in fact." (Slip op. at 13.)

What I hear loud and clear is that a school that wishes for its "diversity" program to pass constitutional muster must veer away from race and instead utilize a factors such as socio-economic status ... judging, to paraphrase Justice Douglas in DeFunis, each applicant as an individual to see who has the character to be admitted. Time will tell if a majority, on the merits, will send out this call even louder in the right case. My bet is that they will. Who can argue against character and determination and perseverance ... and talent?

Bo Links is the legal editor at California Lawyer.

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