Tuesday, June 25, 2013

Affirmative Action Decision in a Nutshell

Much that was said yesterday about the Supreme Court's affirmative action decision was confusing or just plain wrong. Many of the reports must have been filed without actually reading the decision. And, of course, there were the expected spins. So here it is, as straightforward as I can make it, in a nutshell. Including the actual voting line-up of the Justices which was, perhaps, the most confusingly reported of all.
The Supreme Court reaffirmed affirmative action.
It reaffirmed diversity in higher education as an important interest.
It reaffirmed that race may be used as a factor in college and university admissions.
It reaffirmed that the proper standard for determining the constitutionality of considering race is strict scrutiny.
That is the well-settled standard for any governmental use of race as a factor.
(As every 1st year law student and every reader of this blog knows, strict scrutiny is the well-settled standard applied for governmental interference with fundamental rights--e.g., free speech, free press, as well as racial equal protection.)

Strict scrutiny requires that there be a very important (a "compelling") interest that justifies the use of race (or the interference with a fundamental right).
Also, race may not be used more than necessary (nor may fundamental rights be abridged more than necessary) to achieve that very important interest--i.e., the means must be "narrowly tailored."

The University of Texas has been using minority race, among other factors, as a plus in its admissions policy.
The lower federal appeals court, the 5th Circuit, upheld that policy.
The Supreme Court reversed the lower court.
But not because the Supreme Court rejected affirmative action.
And not because the Supreme Court rejected diversity.

The Supreme Court reversed the lower court because that court did not apply strict scrutiny.
Instead, the lower court simply deferred to the University's own judgment about its admissions policy.
The lower court did not itself determine whether the University was using race more than necessary to achieve diversity.
So the lower court--on "remand"--will now have to examine the University's admissions policy and actually apply strict scrutiny.

Significantly, the Supreme Court relied heavily and primarily on Justice Lewis Powell's tie-breaking, concurring opinion in the 1978 University of California v. Bakke decision.
In Bakke, the Supreme Court rejected actual racial quotas in college and university admissions.
But it approved the consideration of race as a plus factor to achieve diversity.
It also made clear that such consideration of race was subject to strict scrutiny.
Again, that means: very important purpose (yes, diversity) + narrowly tailored means (no, don't use race more than necessary).
The Bakke decision --actually the concurring opinion of Justice Powell--is what the majority of the Court embraced yesterday.

OK, the voting.
Yes, 7-1. But by itself that's very confusing.

There were 5 Justices in the majority who approved affirmative action as constitutionally valid--i.e., diversity is very important, and race may be considered if necessary.
Justice Kennedy (swing vote; Reagan appointee) wrote for that 5 Justice majority.
Liberal Justices Breyer (Clinton appointee) and Sotomayor (Obama) joined his opinion.
Also--and this is very significant--the conservative Chief Justice Roberts (Bush 2) and conservative Justice Alito (Bush 2) also joined Kennedy's opinion.

The other 2?
Conservative Justice Scalia (Reagan) wrote a very short concurring opinion. He agreed with the result in the case to reverse the lower court. But he restated his opposition to affirmative action, period.
Conservative Justice Thomas wrote a lengthy concurring opinion He too agreed with reversing the lower court, but he elaborated his opposition to affirmative action, period also.

Those are the 7 Justices who constituted the 7 votes in the 7-1 vote that has been repeated countless times, usually without explanation.
As for the ultimate substantive question--i.e., the constitutional validity of affirmative action--that 7 votes was actually 5 yes and 2 no.

Then there's the dissent. The 1 in the 7-1.
That was liberal Justice Ginsburg (Clinton). She dissented because she is so supportive of affirmative action that she would simply have approved the University of Texas's admissions policy and affirmed the lower court.

So that makes 6 Justices in yesterday's decision that said yes to the constitutional validity of affirmative action, and 2 Justices who said no.

Finally, there's liberal Justice Kagan (Obama) who did not participate in the case, but only because she had worked in the Obama administration in support of the affirmative action policy at issue. She's unquestionaby a yes vote.

Sooo, that makes 7 Justices (Roberts, Kennedy, Ginsburg, Breyer, Alito, Sotomayor, and Kagan) who say yes, an affirmative action policy, if properly designed, is constitutional.
And 2 Justices (Scalia and Thomas) who say no, never.

I hope that clarifies yesterday's affirmative action decision.

[Depending on what decisions the Court releases in the next couple of days, we'll return to "Supreme Court: Right on DNA Swab and on Silence" or we'll deal first with the same-sex marriage cases.]