The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
For nearly five decades, affirmative action was sustained on the opinion of Justice Lewis Powell. The key vote in Bakke thought that a diverse student body could improve learning on campus. Ultimately, Grutter adopted Justice Powell's rationale, and held that universities have a compelling interest to pursue the educational benefits that flow from a diverse student body. That simple premise spawned an entire institution around "diversity." Universities were forced to frame every decision they took in terms of using "diversity" as a way to help students learn. Of course, the real justification for affirmation action could be found in Justice Marshall's Bakke opinion. He grounded racial preferences for black students (and not other races) in the centuries of oppression, slavery, segregation, and discrimination. Indeed, the "educational benefits" approach tokenized minority students as curiosities for white students to learn from. Advocates for affirmative action had to grit their teeth to stay in the good graces of old white folk like Justices Powell and O'Connor.
Fast forward to Students for Fair Admissions. The majority opinion did not formally reverse Grutter–though I agree with Justice Thomas that the precedent is all but overruled. Still, the "educational benefits" rationale seems to have been nullified. Harvard identifies several specific educational benefits it was pursuing:
Respondents have fallen short of satisfying that burden. First, the interests they view as compelling cannot be subjected to meaningful judicial review. Harvard identifies the following educational benefits that it is pursuing: (1) "training future leaders in the public and private sectors"; (2) preparing graduates to "adapt to an increasingly pluralistic society"; (3) "better educating its students through diversity"; and (4) "producing new knowledge stemming from diverse outlooks."
The Court easily found those rationales were not sufficient:
Although these are commendable goals, they are not sufficiently coherent for purposes of strict scrutiny. At the outset, it is unclear how courts are supposed to measure any of these goals. How is a court to know whether leaders have been adequately "train[ed]"; whether the exchange of ideas is "robust"; or whether "new knowledge" is being developed?
Of course, the shortcomings of the "diversity rationale" were apparent in Fisher II, and Grutter. Nothing has changed. The voluminous trial record was irrelevant. But the earlier Courts, stocked with "brave" judges of "wisdom," did not ask the hard questions. They blindly deferred to the universities.
After SFFA, are there any actual educational benefits that flow from diversity, which could be considered an articulable compelling interest? I don't think so. The remainder of the Chief's opinion barely mentions educational benefits. The buzz words to end all buzz words are no longer so buzzy. Justice Powell's concurrence is dead. Justice O'Connor's majority opinion is irrelevant.
It was to be expected that the majority would discard the "educational benefits" rationale. But I was surprised at how little that rationale featured in the dissents. Justices Sotomayor and Jackson wrote at length about white supremacy, institutional racism, and other reasons to justify affirmative action. But the purported benefits that can be obtained in the classroom were not on center stage. The phrase "educational benefits" appears only four times in Justice Sotomayor's dissent, and zero times in Justice Jackson's dissent. Indeed, as Chief Justice Roberts pointed out, Justice Sotomayor cited Justice Powell "barely once," while Justice Jackson "ignores Justice Powell altogether." Rather, the dissenters rely almost exclusively on Justice Marshall's dissent. Under well-settled law, the universities have not invoked any sort of "remedial" interest. To the contrary, the dissenters adopted the en vogue theory that our society is plagued by structural racism and the Fourteenth Amendment must be interpreted to remedy that oppression. Chief Justice Roberts observed that "there is a reason" the dissenters have to rely on Justice Marshall's dissent, because they "surely cannot claim the mantle of stare decisis."
Going forward, can we drop the "educational benefits" charade? No one ever actually believed that racial preferences were justified by those purported benefits. But if not "educational benefits," then what compelling interest would suffice? The more I read the Chief's opinion, the more I conclude that no interest would suffice. Instead, admissions officers will have to go beyond trying to satisfy strict scrutiny. They will focus on this paragraph, and this paragraph alone, to consider race indirectly through the only means allowed:
At the same time, as all parties agree, nothing in this opinion should be construed as prohibiting universities from considering an applicant's discussion of how race affected his or her life, be it through discrimination, inspiration, or otherwise. But, despite the dissent's assertion to the contrary, universities may not simply establish through application essays or other means the regime we hold unlawful today. (A dissenting opinion is generally not the best source of legal advice on how to comply with the majority opinion.) "[W]hat cannot be done directly cannot be done indirectly. The Constitution deals with substance, not shadows," and the prohibition against racial discrimination is "levelled at the thing, not the name." Cummings v. Missouri (1867). A benefit to a student who overcame racial discrimination, for example, must be tied to that student's courage and determination. Or a benefit to a student whose heritage or culture motivated him or her to assume a leadership role or attain a particular goal must be tied to that student's unique ability to contribute to the university. In other words, the student must be treated based on his or her experiences as an individual—not on the basis of race.
In any event, we can finally say farewell to the "educational benefits" rationale. You will not be missed.