Nahmod Law

Background

Affirmative action involving race is a hot button topic  and there may consequently be some student reluctance to engage in meaningful discussion of the issues involved. So I begin class by pointing out the analytical distinction between constitutionality and wisdom. A statute, for example, may be constitutional but still unwise (or immoral). On the other hand, a statute may be unconstitutional but still wise (and moral). The point is that students should feel free either to critique or to agree with the Supreme Court’s current approach to affirmative action as a matter of constitutional interpretation.

Of course, this distinction often breaks down in practice in affirmative action cases inasmuch as strict scrutiny is applied. After all, aren’t the inquiries into whether there is a compelling government interest, and whether the means are narrowly tailored, based in large part on the Court’s view of the wisdom of the particular affirmative action plan in question? Nevertheless, I find the analytical distinction useful pedagogically.

What Affirmative Action Is/Is Not: Getting to “No”

I begin with a series of simple hypotheticals involving claims of racial discrimination arising out of unsuccessful applications for public employment, where various plaintiffs are victorious and the courts order that they be given the jobs they applied for. I ask students whether these are affirmative action cases, to which the short and correct answer is “no.” Rather, these are cases in which constitutional violations are found and judicially remedied. But it takes some time to get to “no.”

In contrast, true equal protection affirmative action cases are those in which a governmental entity voluntarily adopts a plan involving higher education, public employment and the like, under which certain members of a racial minority are given a benefit while certain members of a racial majority are denied that benefit.

Theoretical Considerations

The threshold question is what the equal protection standard of review should be in such so-called benign discrimination cases. Should it be strict scrutiny–as it is for invidious discrimination against a racial minority–or something less than that because the racial discrimination is directed against members of the racial majority?

This provides an excellent opportunity for students to revisit the reasons for strict scrutiny in the invidious racial discrimination setting and to ask, by way of analogy, whether and to what extent those reasons apply to affirmative action as well. This also compels students to explore the possibility of, and justifications for, using a very deferential standard of review for affirmative action.

I use the Bakke fact pattern as a hypothetical in addressing these theoretical considerations.  Then we go on to analyze Croson, Adarand, Grutter and Gratz in connection with how to apply strict scrutiny.

[Parents Involved raises different, though related, issues that I do not address in this post].

Doctrine

In addition to the theoretical aspects of affirmative action, it is very important that students know how to apply strict scrutiny to particular fact situations. It is easy for students to talk at too high a level of generality about compelling government interests and narrow tailoring, without sufficient sensitivity to the facts. So I make sure that students understand that there are currently two compelling government interests available–again, I leave aside Parents Involved, and especially Justice Kennedy’s opinion there.

One is remedying past racial discrimination by the government entity adopting the affirmative action plan. Croson and Adarand make this clear. The other, apparently limited to higher education, is diversity (which includes racial diversity). Grutter and Gratz are the two important cases in this regard, with attention given to the uncharacteristic deference that Court gave to the University of Michigan Law School’s assertion of the necessity of diversity for a quality legal education.

After discussion of the meaning of narrow tailoring in the affirmative action context, I ask students to apply strict scrutiny to all of the above cases.

Other Thoughts

Before leaving affirmative action, I question Justice O’ Connor’s observation in Grutter that affirmative action plans should generally have sunset provisions, an observation that is accompanied by her expectation that such plans will not be necessary in 25 more years. What’s the point of this? What, if anything, does it say about the Court’s role in affirmative action cases: has the Court been leading the nation or following it?

I also ask students whether they think the Court has gotten affirmative action right. In a recent informal poll of my class–during the week of 11-2-09–approximately 3/5 of the class thought the Court was getting it right (excluding Parents Involved, where the overwhelming majority thought that the plurality got it wrong). The other 2/5 thought that the Court should use intermediate level scrutiny rather than strict scrutiny. Interesting.