The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Affirmative Action and the Dangers of Motivated Legal Reasoning
National Review reports that the Justice Department announced that it found my university, George Mason, in violation of Title VI:
At the center of the scandal is Gregory Washington, the university's first black president, whom faculty allege spearheaded the Northern Virginia school's diversity practices. In April 2021, for example, Washington penned a letter to the school's faculty and staff about how to promote "inclusive excellence" in hiring. "While a majority of our students are non-white," he wrote, "just 30 percent of our faculty are from ethnic minority, multi-ethnic, or international communities." And to achieve the university's vision, he continued, "we first have to adopt a broader, shared understanding of what 'best' means when recruiting faculty and staff at Mason."
"If you have two candidates who are both 'above the bar' in terms of requirements for a position, but one adds to your diversity and the other does not," Washington continued, "then why couldn't that candidate be better, even if that candidate may not have better credentials than the other candidate?"
I first learned of this plan early on: the new university administration's explicit goal was to use preferential hiring make the faculty and student body mirror the demographics of Northern Virginia. I objected, pointing out that regardless of one's policy preferences, using affirmative action in faculty hiring to achieve demographic "balance" was plainly illegal. I even offered to explain why.
The administration showed no interest. I was told that President Washington had already consulted a prominent law school dean, who assured him the plan was lawful.
Now, I can imagine legal advice along the lines of: "This is almost certainly illegal, but the chances of anyone suing or the university facing legal consequences are slim." That would have been accurate. Hundreds of universities maintained unlawful affirmative action programs for years, with little risk of challenge.
For instance, "minority-only" scholarships and fellowships—essentially 100% quotas—were common. No Supreme Court opinion, nor even a single Justice, has ever endorsed such quotas as lawful. Yet these programs continued largely unimpeded until 2025.
But there is a critical difference between telling clients, "You will probably get away with this," and telling them, "This is legal." And in my experience, academics often blur that line, twisting themselves into knots to argue that obviously unlawful racial preference programs were somehow permissible.
Why? There are two plausible explanations.
The simple explanation is that their belief in the justice of such programs, and their conviction that the courts have misinterpreted the law, clouds their judgment.
The more "academic" explanation is that they don't think the law "as written" is the real law. Instead, they implicitly distinguish between the law on the books and the law as actually applied.
By the text of the law, many common racial preference practices in higher education were blatantly illegal. But in practice, enforcement was rare. The government seldom acted, private complaints were uncommon, and when cases reached the Supreme Court, the Court often upheld policies that seemed plainly unlawful by ignoring on its own precedents and reasoning.
A good example is Grutter v. Bollinger, which upheld the University of Michigan Law School's affirmative action policy. Year after year, the school admitted nearly identical percentages of minority students, suggesting an implicit (and illegal) quota. Gaps in LSAT and GPA scores were vast, undermining the claim of individualized review and showing that race was a large, general (and thus illegal) "plus" factor. As Justice Thomas noted in dissent, the state's supposed "compelling interest" was preserving the law school's elite status while admitting "enough" minority students. But that elite status primarily benefited out-of-state job markets, since 90% of graduates left Michigan—a far cry from a compelling Michigan state interest.
By the law as written, Michigan's policy was plainly unlawful. The Court, however, declined to apply the law as written.
Which brings me back to motivated reasoning. Even if we distinguish between law on the books and law in practice, responsible legal counsel should explain that distinction and warn clients that the written law could be enforced in the future. Indeed, one might argue that professionals are obligated to advise compliance with the law as written, regardless of lax enforcement.
Instead, what I have seen repeatedly is law professors engaging in highly tendentious reasoning—arguing that the law means the opposite of what any objective observer would conclude. That kind of advice doesn't just encourage clients to ignore the law; it emboldens them to flout it openly. And as we are now seeing, this can carry real legal consequences.
