SCOTUS Dodges Latest Petition in Case of Facially Race-Neutral Race-Conscious Admissions
On Monday, the Supreme Court denied a petition for certiorari in a case in which the U.S. Court of Appeals for the First Circuit had rejected a challenge to the admissions procedures for Boston's selective public high schools. Justice Alito, joined by Justice Thomas, dissented. By coincidence, just the day before the cert denial and dissent dropped, so did the published version of my article on the very same subject. The article, titled "Race-Neutrality, Baselines, and Ideological Jujitsu After Students for Fair Admissions," is now available on the website of the Texas Law Review (and also as a pdf here). I blogged about the article when I posted a draft of it on SSRN in February.
In today's essay, I discuss the cert denial and my article, both of which address the following question: Are facially race-neutral means of achieving racial diversity in education (and potentially other contexts as well) subject to strict scrutiny in the same way that facially race-based affirmative action programs are? I say no; Justices Alito and Thomas say yes; because the rest of the Court denied cert, we will need to wait a while to learn the answer given by the other Justices.
Part I of my article builds on a substantial body of scholarly work and case law pre-dating Students for Fair Admissions v. Harvard and arguing that there is a constitutionally significant difference between facially race-based and facially race-neutral means of achieving racial diversity. As I note in the article, pre-SFFA, this distinction was most commonly drawn by critics of affirmative action. They pointed to facially race-neutral "percentage plans" like the one at the University of Texas that guaranteed admission to selective colleges for students graduating in some top percentage of their high school classes, arguing that the ability of such plans to yield racial diversity showed that facially race-based criteria were unnecessary and thus not narrowly tailored. My article introduces the notion of "ideological jujitsu" in recognition of the fact that it is now proponents of diversity who are deploying this set of arguments.
The challenged admissions scheme for the Boston schools uses race-neutral means (allocating spots based on GPA within zip codes) to achieve racial diversity. True, the Boston case involves selective high schools rather than selective colleges, but that distinction does not appear to make a difference to the constitutional question. Hence, the case does seem to nicely tee up the issue my article (and a substantial volume of other writing) addresses. And not surprisingly, now it is the conservatives--Justices Alito and Thomas--who contend that facially race-neutral means of achieving racial diversity are suspect. Justice Gorsuch also suggests that he is sympathetic to that contention, although he concurs in the cert denial on the ground that Boston has changed its policy and so the version upheld by the First Circuit is no longer in force.
As I said, I am hardly the first person to argue that facially race-neutral means of achieving racial diversity should be treated differently from facially race-based means. The distinctive contribution of my article concerns what it means for a facially race-neutral policy to have a disparate impact. In Parts II through IV of the article, I develop the argument that to trigger strict scrutiny as equivalent to a racial classification, a race-neutral law or policy must, at a minimum, have a disparate impact on the plaintiff's racial group and, critically, that disparate impact is not measured relative to a baseline of whatever the status quo ante happened to be before the adoption of the challenged law or policy. The First Circuit in the Boston case and the Fourth Circuit in an earlier case made a version of this point but without substantial elaboration.
Justice Alito appears to disagree with those courts and with me. He writes that "all a party must show in order to rely on disparate impact as circumstantial evidence of discriminatory intent is that an admission policy reduced one racial group’s chance of admission and increased another racial group’s chance of admission."
Why do I say only that Justice Alito appears to disagree? The answer is that in the foregoing language, Justice Alito is discussing disparate impact as evidence of discriminatory intent. He is not considering the possibility that even when there is conclusive evidence of subjective discriminatory intent (but no facial racial classification), there is no constitutional violation unless there is also disparate impact.
Yet that's the lesson I draw from Palmer v. Thompson, in which the Supreme Court upheld Jackson, Mississippi's decision to close all of its public swimming pools rather than desegregate them. As I further explain in the article, although the result in Palmer is problematic, it still rightly stands for the proposition that the status quo ante is not the right baseline for measuring disparate impact simply in virtue of its being the status quo ante.
Readers who are made uneasy by any reliance on Palmer (given its odious result) can take comfort from the fact that I also draw on a substantial body of case law interpreting Title VII of the Civil Rights Act of 1964. The case law does not provide a simple rule for selecting the proper baseline against which to measure disparate impact, but it does make clear that the status quo ante is never the right baseline simply in virtue of being the status quo ante.
In the article, I don't simply rely on Palmer. I also provide a key hypothetical example as an intuition pump for rejecting the status quo ante as the baseline. In the hope that it will intrigue readers sufficiently that they go and read the whole article, I'll reproduce the hypo:
Suppose that a state university has hitherto given admissions preferences to children of alumni, donors, and faculty, all of whom are disproportionately white relative to both the applicant pool and the population. Those preferences were not a denial of equal protection because (we will assume) the university provided them despite rather than because of their disparate racial impact. Legacy and donor preferences provide financial support to the university by encouraging alumni loyalty and donations. Preferences for faculty children help the university recruit and retain faculty. These are race-neutral aims even though they have a disparate racial impact. But now suppose that the university wishes to abolish the preferences at least in part because it has come to regard the disparate racial impact as contrary to its inclusive mission. Eliminating the preferences will have a disparate racial impact on white applicants, as measured against the prior regime of preferences. And because the purpose of eliminating the preferences is inextricably intertwined with race, that would mean the preferences’ elimination must be subject to strict scrutiny—at least if one rejects the argument of Part I for treating racially inclusive purposes differently from express racial classifications. Yet, however one gets there, that result seems preposterous. Surely an action that merely takes away a privilege disproportionately enjoyed by whites does not count as a negative disparate impact on whites simply because they formerly disproportionately enjoyed that privilege.
Intrigued yet? I hope so!
I'll conclude by noting that the Boston case has one feature that, depending on one's point of view, would have made it either an excellent cert vehicle or a poor one. In his dissent from the denial of cert, Justice Alito cites evidence (excluded by the district court) indicating that three members of the committee responsible for Boston's challenged admissions policy were motivated by animus against white and Asian American students. To my mind, the evidence of actual animus makes the Boston case potentially like Palmer itself, where there is no doubt that the decision makers who closed the pools were clearly racists. That's an added twist that won't be present in most cases involving facially race-neutral means of achieving racial diversity. Whether something like it will be present if and when the Court eventually grants cert in one of these cases remains to be seen.
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Postscript: Regarding that last point about animus, I realize that for some conservatives, any effort to bolster admissions numbers for one racial group necessarily entails hostility to other racial groups, but that proposition has not been officially adopted in cases involving facially race-neutral classifications. Moreover, the fact that Justice Alito sees fit to discuss the evidence of subjective animus itself shows that he thinks there is at least rhetorical force to active hostility that goes beyond the logical implications of zero-sum admissions.