The Supreme Court did not dismantle affirmative action in its long-awaited ruling on Monday. It didn’t really affirm the program, either.
Instead, the court left affirmative action intact, but stressed that universities must clear a high bar to defend it.
In judicial jargon, that bar is called “strict scrutiny.” Under longstanding precedent, government racial classifications already face such scrutiny in the courts. The new affirmative action ruling, Fisher v. University of Texas, found that a lower court wasn’t strict enough, because it said it deferred to the university’s expertise.
Writing for a seven-person majority, Justice Anthony Kennedy said that misses the whole point. Strict scrutiny is strict because it doesn’t defer.
Death by a thousand cuts?
Debating deference may feel like talking around the real issue–whether we still need diversity programs–but it’s how courts often set parameters. Viewed in that context, the logic of Justice Kennedy’s decision is bad news for affirmative action.
It’s just incrementally and bureaucratically bad–not necessarily bad today. “Strict scrutiny does not permit a court,” Kennedy writes, “to accept a school’s assertion that its admissions process uses race in a permissible way without a court giving close analysis to the evidence of how the process works in practice.” The idea is that judges have to look under the hood, and not take a university’s defense at face value.
For educators and civil rights advocates in the field, however, the idea that universities are running around without government supervision is hard to swallow.
While affirmative action accounts for only a small slice of the national college population–it’s not even an issue at most schools, which don’t have competitive admissions–courts and legislatures have been regulating and second-guessing it for decades. A series of legal decisions have narrowed how it works, (including three previous Supreme Court cases). The program under review in Texas is the third iteration of the state’s attempts to use diversity, in fact, while clearing the hurdles from previous Supreme Court decisions.
So at a certain point, university administrators may feel like they’re caught in an especially boring version of The Hunger Games–a series of increasingly difficult tests that they’re doomed to fail.
Post-racialism and the road ahead
Beyond judicial inspections and do-overs, Justice Kennedy laid down one other big marker: universities can only use race as a last resort. Universities have the “ultimate burden” of proving that “race-neutral alternatives” won’t work, he ruled, before they can even turn to “racial classifications.”
That is big, because the court is reviewing many civil rights laws that do not treat racial remedies as a last resort, from the pending voting rights case to fair housing rules next term.
Under current precedent, these laws patrol civil rights violations by looking for racial discrimination. They use racial “categories” in pursuit of equality–not to practice discrimination. So the Voting Rights Act’s relationship to black voters is protective, much like the Age Discrimination Act uses elderly “categories” to patrol age discrimination.
According to conservative legal theory, however, virtually any government reference to race is now discriminatory and unacceptable. That’s why Justice Kennedy’s reference to “racial classifications” in this case could cast a long shadow.
Kennedy may be edging toward the strict linguistics of the conservative bar, which has latched onto the rhetoric of race-neutrality instead of its more complicated reality. It is a flirtation, not an embrace, as evidenced both by the opinion’s procedural emphasis (all that “scrutiny” talk), and the separate concurrences by Thomas and Scalia, (who went further than Kennedy would). This trend is vexing for defenders of civil rights laws, which are harder to enforce without, yes, racial classifications.
That debate crops up between the lines in Fisher. At one point, Kennedy offers a string of citations about skepticism of racial classifications. A close look at his chosen cases reveals the tension in the conservative argument.
He quotes similar-sounding precedents about equal treatment, such as the view that classifying people by their “ancestry” is “odious,” or that “racial classifications” are subject to the “most rigid scrutiny.”
OK: The first line is from a 2000 case rejecting Hawaii’s attempt to restrict voting by ethnicity. The second is from the landmark 1967 case invalidating Virginia’s anti-miscegenation law.
This is the ugliest side of racial classifications: When the government uses them to suppress voting, or practice marriage apartheid. Yet, to invoke those cases as a reason to criticize or invalidate the civil rights laws that supplanted overt racism– the laws to counter more subtle voter suppression, or to advance diversity–is chilling.
The court managed to skirt the heart of that dispute, for now, in Fisher. Instead, the tension over classifications and formal equality is beneath the surface of the opinion, sublimated by the pressures of seven justices coming to agreement and a holding focused on dry procedure.
Still, Justice Ginsburg, offering the only dissent, was not content to sign on with Kennedy’s logic or result. The Texas program is constitutional under current precedent, she wrote, and admissions policies drained of racial categories are not automatically better for societal progress. Indeed, without directly engaging the larger debate, Ginsburg rebuffed the idea that “race-blind” admissions programs, such as admitting the top students from every school in the state, were a better alternative. She noted that, if anything, those programs depend on–and were adopted to utilize–the racial segregation of the state’s communities and schools. “It is race consciousness, not blindness to race, that drives such plans,” Ginsburg stressed.
She was talking about Texas, and the case before the court. But she could have been talking about America, and the cases to come. After all, it’s hard to address racial inequities if you aren’t even allowed to talk about them.
Ari Melber is one of the hosts of MSNBC’s The Cycle.