Racial Inclusion: Strict Scrutiny and Functional Relevance
Until the 1960s, conflicts over racial discrimination involved classifications detrimental to minorities. Since then, the Supreme Court has been divided on the constitutionality of affirmative action programs which use racial classification to minorities’ advantage. As beneficiaries of such classifications are no longer limited to victims of past discrimination, or necessarily the most disadvantaged among them, the underlying principle for such classifications, as well as their proper administration and efficacy, have become highly contentious. Following successful political mobilization today affirmative action, in some or all of its forms, is banned in California, Florida, Washington, New Hampshire, Michigan, Arizona and Nebraska, while unsuccessful attempts to ban it have been made in other States, such as Colorado, Missouri and Oklahoma.1
Since its first ruling on the matter, wherein the Court held that racial classification per se did not violate the Equal Protection Clause and at the same time struck down fixed racial quotas in university admissions,2 the Court has voted both for and against affirmative action programs, and both for and against quotas. It has allowed collectively bargained race-conscious affirmative action plans in hiring and promotion,3 and invalidated them in layoffs.4 It has upheld congressional affirmative action programs in granting public works contracts,5 and has struck them down at the municipal level.6 It has called for both deference to,7 and strict scrutiny of university admissions policies.8 While these decisions are seen as “particularistic” and unable to provide certainty about the “law governing affirmative action,”9 over the years the Court has gradually expanded the scope of strict scrutiny analysis to determine the constitutionality of racial classifications in all settings and by all actors. In this process strict scrutiny itself appears to have undergone transformation. Initially designed to distinguish between constitutionally permissible and impermissible objectives, strict scrutiny is said to have devolved into a cost-benefit analysis of purported harms and benefits of public policy.10
This chapter examines the differential vulnerability of affirmative action programs to strict scrutiny analysis. We begin with the doctrinal divide on the bench between categorical opponents and conditional supporters of affirmative action programs. Then, we examine the Court’s touchstone decision in Regents of the University of California v. Bakke, which allowed race-based affirmative action programs and made them subject to strict scrutiny.11 Tracing the Court’s application of the strict scrutiny standard in several additional areas of law, we will see how a functionally differentiated social context has turned strict scrutiny into a functional method of analysis. To verify the compelling character of state interest in affirmative action programs and their narrow tailoring, the Court is required to identify specific problems to which each program purports to provide solutions. A result is exposing the systemic specificity, and therefore mutability, of both problems and solutions. This accounts for the increasing vulnerability of both race-based affirmative action programs and facially neutral measures with disparate racial impacts to judicial review. We discuss how strict scrutiny can guide the interplay between law and other social systems along functional lines and touch upon the ironic implications of this process.
Constitution and Race: To See or Not to See
Since its first ruling on affirmative action, the Court has been divided between categorical opponents of racial classification and its conditional supporters. The former insist on the “colorblind” character of the Constitution, textual evidence for which lies not in the Constitution, but in the Court’s own jurisprudence; namely, the sole dissent in Plessy (which upheld racial segregation):
Our Constitution is color-blind … The law regards man as man, and takes no account of his surroundings or of his color when his civil rights as guaranteed by the supreme law of the land are involved.12
Despite their allegedly benign intentions, affirmative action programs are said to perpetuate racial stereotypes, stigmatize minorities and impede their success in the long run. “Laws designed to subjugate a race and those that distribute benefits on the basis of race” are “racial discrimination, plain and simple.”13 Temporary use of racial classification can be conceded if and only if dismantling a system of de jure racial discrimination so requires. Even then, the remedy may not extend beyond the scope of the original constitutional violation to include the continuing effects of a discriminatory system once the system itself has been eliminated.14 No benign policy objective can justify racial classification. Making “race relevant to the provision of burdens or benefits … demeans us all.”15 Racial classification is considered inherently suspect, and therefore subject to strict scrutiny at all times.
Sharing the aspiration of a colorblind Constitution, conditional proponents of affirmative action programs rely on contemporary international human rights conventions and American political and legal history to argue for their constitutionality.16 As formal equality alone has not been able to remedy drastic racial disparities sustained by a long history of exclusion and discrimination, they distinguish between “invidious” and “benign” racial classifications, between “policies of oppression and measures designed to accelerate de facto equality.”17 This distinction may require subjecting the latter to a lower standard of review or taking different contextual factors into account while applying strict scrutiny standards:18
Context matters … generalizations, based on and qualified by the concrete situations that gave rise to them, must not be applied out of context in disregard of variant controlling facts … strict scrutiny must take relevant differences into account.19
But how is one to make sense of the social context and distinguish between relevant and irrelevant differences? As we shall see, both change as one shifts the social system by reference to which they are to be understood. Let us begin with Bakke, which set the standard for both opponents and supporters of affirmative action, and see how the context was interpreted.
Contexts and Systems
In Bakke, the Court ordered a white male student to be admitted to the University of California Medical School at Davis. Having been twice denied admission, Bakke claimed that the University’s two-tiered admissions program (reserving 16 percent of entering positions for racial minorities) denied his equal protection rights and violated Title VI of the Civil Rights Act of 1964, which proscribed the use of federal funds in segregated institutions. The Court produced six separate opinions and no majority. Four Justices would uphold the program on various constitutional grounds. Four others, avoiding the constitutional question, would strike it down on statutory grounds. Justice Powell, who was for both affirmative action per se and strict scrutiny of all racial classifications, wrote for the Court. He concluded that Title VI prohibited only those racial classifications that would violate the Equal Protection Clause. Achieving a diverse student body was a sufficiently compelling goal to justify consideration of race in the University’s admissions policy. But the admissions program at issue was invalid under the Equal Protection Clause, as it foreclosed consideration of non-minority students for some entry positions. Quotas were struck down and Bakke was admitted to the Medical School. Yet, affirmative action supporters were vindicated, as the decision found no contradiction between racial classification per se and statutory and constitutional provisions. At the same time, the strict scrutiny standard provided opponents of affirmative action programs with new grounds for litigation and opened the door to more exacting legal analysis of both purported goals and appropriate administration of such programs.
To justify the application of strict scrutiny standards to affirmative action programs, Justice Powell emphasized the “personal” character of the rights created by the Fourteenth Amendment and the fact that they were “guaranteed to the individual.”20 While the primary function of the Amendment was to bridge the gap between the white majority and the black minority, the Amendment was framed in universal terms. Moreover, the “two-class theory” of the Fourteenth Amendment was untenable because of the false homogeneity presumed for the white race:
[T]he white ‘majority’ itself is composed of various minority groups, most of which [could] lay claim to a history of prior discrimination at the hands of the State and private individuals … There is no principled basis for deciding which group would merit ‘heightened judicial solicitude’ and which would not.21
This statement has attracted attention for changing the political register of colorblindness from prohibiting racial discrimination to prohibiting affirmative action, as it appears to entitle all individuals to judicial protection against racial and ethnic classification.22 Yet, the significance of Justice Powell’s reasoning to determine the compelling character of state interest in racial diversity has not been adequately understood. Its import is to reveal a circular relation between strict scrutiny analysis and its functionally differentiated social context. Let us examine his argument in more detail.
To determine whether the University’s admissions policy served a compelling state interest, Justice Powell examined its four purported goals as put forth by the University: to reduce under-representation of minorities in medical schools and the profession; to increase the number of physicians willing to practice in underserved communities; to counter the “effects of societal discrimination”; and to obtain the “educational benefits that flow from an ethnically diverse student body.” The first two purposes were not difficult to dismiss: A racial quota was held to be “discrimination for its own sake,” and “facially invalid.” There was no empirical evidence that racial minority physicians were more likely to serve in underserved areas.23 Therefore, if a compelling state interest were to be found, it would have to be grounded in the two latter goals: To remedy past societal discrimination and achieve a diverse student body. Only the last was found to serve a compelling state interest in educational contexts:
We have never approved a classification that aids persons perceived as members of relatively victimized groups at the expense of other innocent individuals in the absence of judicial, legislative, or administrative findings of constitutional or statutory violations … In such a case … the remedial action usually remains subject to continuing oversight … [The University] is in no position to make such findings. Its broad mission is education, not the formulation of any legislative policy or the adjudication of particular claims of illegality.24
Strict scrutiny revealed the multiplicity of system-references for the specific problems to which the admissions policy claimed to provide solutions, and exposed the unwarranted coupling of system-specific codes and programs. Relevant and irrelevant differences were set apart by making a distinction between the societal systems of law and politics, on the one hand, and that of education, on the other. Notwithstanding the laudable goal of countering the effects of societal discrimination, the mission of the University was education, not remedial action. Lacking judicial and legislative competencies, the University could not at its pleasure privilege some students (due to their race or ethnicity) at the expense of others.
However, within the scope of the Equal Protection Clause, the University could select its student body as it saw fit, as that was one of the “four essential freedoms” constituting academic freedom and was implicitly protected by the First Amendment.25 As the University was not authorized to overstep its educational function, the state could not exceed its political function and interfere with decisions which required academic competence:
It is the business of a university to provide that atmosphere which is most conducive to speculation, experiment and creation. It is an atmosphere in which there prevail ‘the four essential freedoms’ of a university – to determine for itself on academic grounds who may teach, what may be taught, how it shall be taught, and who may be admitted to study.26
The state had a compelling interest in promoting diversity in university admissions policies because (according to the education system itself) a diverse student body made significant contributions to its specific mission, in the fulfillment of which the state had a compelling interest. Yet, to achieve this goal, admissions policies had to be narrowly tailored. Race or ethnicity could be taken into account only as favorable elements in an individual’s application. They were not to “insulate the individual from comparison with all other candidates for the available seats.”27
In regulating access to itself, the University had to ignore all differences among persons except the difference in their capacity to learn, as demonstrated by academic records. While potentially important in a court of law, whether a person was a victim or perpetrator of past discrimination should not affect his or her chance of admission to the University. In its construction of each person as an applicant for a student position, the University had to consider only his or her student persona. This required that the same educationally relevant standards be equally applied to all of them for any entry position. At this level (i.e., at the level of applying the code), non-educational categories could not be taken into account. But among the qualified applicants (i.e., among those to whose academic records the code had already been applied), the University could offer, on an individualized basis, preferential treatment based on race, if that served an educational function.
Bakke was thought initially to put a chill on affirmative action programs, but it turned out to be largely inconsequential. By 1998, over 95 percent of law and 90 percent of medical schools gave extra consideration to African Americans, and 93 percent of law and 69 percent of medical schools did the same for Hispanics. Strict scrutiny did not prove automatically fatal either. Between 1990 and 2003, the District, Circuit and Supreme Courts upheld 30 percent of such programs.28
In fact, Bakke provided a legal ground for non-remedial or diversity promoting (i.e. future oriented) affirmative action programs and a conditional core (i.e., an “if … then” structure) for adjudicating them: if racial diversity is essential to the function of the social system in question, then racial classification is permissible. The functional relevance of racial diversity provided an equivalent for past racial discrimination. At the same time, strict scrutiny offered a mechanism for exposing the contingency of the functional relevance of racial diversity and questioning the necessity of racial classification as a means to achieve it.
Bakke also anticipated the troubling implication of non-remedial, or result-oriented, affirmative action programs for constitutional adjudication. It pointed out that as preferential classifications begin to produce their desired effects, new ones will be required, but that the “kind of variable sociological and political analysis necessary to produce such rankings simply does not lie within the judicial competence – even if they otherwise were politically feasible and socially desirable.”29 This seems to have been the story of race-based affirmative action in educational institutions ever since. As the results of race-conscious admissions policies were made subject to closer scrutiny, the once taken-for-granted educational benefits of student diversity and thus the compelling character of state interest were cast in doubt.30 Contradictory empirical evidence for positive, negative and/or inconsequential educational benefits of student diversity and their uneven distribution across the color line began to mount.31 The inconclusive character of such evidence forced the lower courts to decide the very questions to which Bakke had admitted law could not provide adequate answers. While social-scientific debates on methodology, theory and pedagogy produced ample variation in the definition and measurement of diversity and its correlations with educational outcomes for minority and majority students, they offered little guidance to the courts in deciding the constitutionality of specific affirmative action programs. A result was increasing variety in lower courts’ decisions. In the meantime, the introduction of race-neutral measures that could increase racial diversity in colleges and universities began to cast doubt on the very necessity of racial classification. Until 2003, the Court did not weigh in on the matter. When it did, Bakke was both affirmed and revised. By that time, conflicting decisions of Courts of Appeals and political mobilization against affirmative action had turned it into a question of national importance.32
Grutter v. Bollinger33 and Gratz v. Bollinger34 involved the 1996–7 admissions policies of the University of Michigan’s Law School and its College of Literature, Science, and the Arts, respectively. The Law School was explicit that high grades and test scores did not automatically guarantee admission, and that “soft variables” (such as recommendation letters, the quality and difficulty of undergraduate courses, and personal essays) would be taken into account to select applicants with the best potential to contribute to the institution’s intellectual and social diversity. Although the policy allowed different bases for diversity admission (from language proficiency to community service, to having overcome personal adversity), it explicitly sought to ensure enrolment of a “critical mass” of under-represented minority students (especially African Americans, Hispanics and Native Americans). How hard and soft variables were to be taken into account, and what constituted a critical mass were not specified. The College, on the other hand, automatically awarded 20 points out of the 100 minimum required for admission to racial minority applicants.