Getting Beyond 'Bakke' and 'BAMN'

April 24, 2014
Guest Post

by Gabriel J. Chin, Professor of Law, University of California Davis School of Law

Schuette v. Coalition to Defend Affirmative Action (BAMN), decided this week, did not deal another blow to affirmative action, exactly, but it upheld an earlier attack. The justices, 6-2 with Justice Kagan recused, approved a Michigan law prohibiting voluntary affirmative action in higher education.  The eight participating justices issued five separate opinions. 

In 2006, the voters of Michigan responded to the Court’s 2003 decision in Grutter v. Bollinger, allowing affirmative action to promote educational diversity by passing an initiative banning it.  The Coalition to Defend Affirmative Action, Integration and Immigration Rights and Fight for Equality By Any Means Necessary persuaded a panel of the Sixth Circuit, and then a majority of the court en banc, that Michigan’s ban was unconstitutional. The Sixth Circuit was on firm ground; Washington v. Seattle School District Number 1, a 1982 decision, invalidated an initiative banning voluntary bussing to achieve racial integration.  The laws at issue were, seemingly, indistinguishable: Both involved initiatives meant to squelch voluntary measures to achieve racial integration, in situations where remedies where not legally required. The Seattle case built upon earlier decisions invalidating anti-civil rights initiatives.

I read Justice Kennedy, whose plurality opinion was joined by the Chief Justice and Justice Alito, as distinguishing Seattle School District Number 1 on a subtle point: the identity of the beneficiaries. Voluntary bussing to achieve integration has often been defended because it benefits the racial minorities or other disadvantaged pupils who are bussed. Prohibiting voluntary bussing harms minorities, and thus might be a subject of equal protection concern. The trick, though, is that since Bakke, in 1978, diversity has been the compelling interest justifying voluntary affirmative action in higher education. African-American students are not admitted under Bakke or Grutter primarily for their own benefit, but instead, for the benefit of other students – thus Richard Delgado’s famous observation that affirmative action is a “majoritarian device” for the benefit of whites. Since affirmative action in higher education cannot be primarily for the benefit of minorities, its elimination is also not necessarily to their disadvantage.  Thus, unlike this case, Justice Kennedy explained, the older cases in which the court invalidated initiatives “were ones in which the political restriction in question was designed to be used, or was likely to be used, to encourage infliction of injury by reason of race.”

Once again, our law is burdened with the consequences of the Courts restrictive view of the scope of affirmative action to remedy past discrimination. The Court conceptualizes the current economic and educational disadvantages of African Americans as a group as the result of individual choices, plus the effects of private discrimination (which itself does not violate the Fourteenth Amendment), and governmental discrimination so long ago that its effects must generally be ignored.  Only rarely, therefore, can affirmative action be justified as a remedy for past discrimination, and even then normally only with respect to specific individuals. But segregation was an interlocking network of state and federal laws and practices, and private conduct encouraged or required by those laws, disadvantaging minorities with respect to housing, employment, education, the criminal justice system, the political system. The Court has never really come to grips with the fact that race was a central organizing principle of American society, which, in a country where it matters whether your parents and grandparents were affluent or poor, has concrete consequences which reverberate today. 

Nevertheless, there may be some reason for optimism that new strategies to promote racial equality might gain traction. In BAMN as in past affirmative action cases, the conservative justices were clearly concerned about stigma, the possibility that affirmative action or other racial classifications will disadvantage beneficiaries, both by impairing the confidence of the beneficiaries themselves and their esteem in the minds of others. That is, the Justices model the human mind not as wholly self-created and rational, but as potentially affected by experience and the views of the surrounding society. The Justices should, therefore, be open to evidence of how human minds actually function. The empirical social science is exploding; various resume review and tester experiments by scholars like Devah Pager at Princeton and Bruce Western at Harvard show that minorities are treated less advantageously than whites.  (So too are women, compared to men, according to a recent study of male and female university faculty.) Sometimes discrimination is intentional, but it also operates subconsciously. Justices who believe affirmative action is objectionable because it might stigmatize minorities in the future should be concerned about how centuries of racism affect the perception and therefore treatment of minorities today. The Michigan law the Court upheld provided that the state “shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity or national origin.”  There is a compelling argument that the very law which ended affirmative action in Michigan also requires the state not to permit the perpetuation of discrimination which, the evidence suggests, is widespread.