Affirmative Action May Be Doomed—But It’s Already a Confused Mess

Everything you think you know about affirmative action is wrong.

But don’t worry, no one else is clear about it either. The fact is, affirmative action is a mess, and the case the Supreme Court heard this week, Fisher v. University of Texas, put the whole hot mess on vivid display. In fact, the oral argument—which ran overlong and featured numerous outrageous statements, mostly from Justice Scalia—turned out to be the perfect mirror for the court’s jurisprudence on the subject: long, sloppy, and unlikely to get better soon.

Affirmative action, as most of us know it, seems pretty straightforward. The best illustration of it is a cartoon that’s been making the rounds lately of three people—one short, one tall, and one in-between—trying to watch a baseball game from behind the outfield fence. In one frame, labeled “equality,” each stands on a crate. That means the tall person can see clearly, the medium-height one not as well, and the short one is blocked.

In the second frame, labeled “justice,” the tall person’s crate has been given to the short person, who now stands on two. Now everyone can see.

The metaphor is obvious. By creating a kind of local inequality—taking a crate from the tall person and giving it to the short one—affirmative action creates a higher equality. As endless data, personal testimonies, and even Pulitzer-Prize-winning literature (Toni Morrison’s Beloved) have shown, the effects of 300 years of slavery, Jim Crow, and institutional racism still resonate today: disparities in education, healthcare, housing, safety, family structures, and employment opportunities. And so, in some rare cases, they’re given a boost—a taller stool to help remedy centuries of injustice.

Except, that’s not how it works anymore.

The remedial model of affirmative action has, unknown to most of the public, lately run afoul of the Supreme Court. Large portions of the Voting Rights Act were voided because the time for remedial efforts, the Court said, was over. And in educational contexts, remedial affirmative action plans haven’t prevailed in almost forty years.

Remember, affirmative action is, itself, a form of discrimination. That means it triggers constitutional questions (equal protection under law) and must pass “strict scrutiny,” with the government showing a compelling state interest behind it, and no better way to achieve that interest.

But if remedying past discrimination isn’t a compelling state interest, what is?

Beginning with a concurring opinion in the 1978 case of University of California v. Bakke, the answer is diversity. Legally speaking, the justification for affirmative action in university admissions is to create a diverse learning community. So, even though everyone knows that affirmative action is, at least in part, designed to make up for centuries of white supremacy, we all have to pretend that it’s not about that at all.

No, the reason the University of Texas gives a “plus” to minority candidates is solely because diversity is good for everyone’s educational experience.

Then there’s the question of how to do it.

In 2003, when the Court reviewed the University of Michigan’s affirmative action program, it issued a compromise opinion, a hodgepodge by swing-voter Justice Sandra Day O’Connor, which was criticized the moment it came down, and has proven even worse in practice. That case, Grutter v. Bollinger, said that race can’t be an automatic “plus” and that it should be gradually phased out – but then upheld a program in which race was an automatic plus and was not intended to be phased out.The situation got even worse in 2013, when this very case – Fisher v. University of Texas – was heard for the first time. Then, Justice Kennedy wrote yet another compromise opinion, opposing affirmative action in all but a few cases, but providing criteria that were so vague as to be interpretable in any way you like.

For example, according to Fisher I, universities can seek to create a “critical mass” of minority students. What does that mean? The Court didn’t say.

Another example: the university must provide a “good-faith consideration of race-neutral alternatives.” What, exactly, does that mean? The Court didn’t say.

Indeed, that’s the whole reason Fisher was re-argued in court this week: to determine whether there was evidence in the record that this program was the only way to achieve diversity, that UT had considered alternatives, and that the program design was not automatic but only took race into account as part of a “holistic” review.Yet during the oral argument, Justice Kennedy seemed exasperated that there still wasn’t enough evidence to determine any of that. “We’re just trying the same case again,” he complained.

Meanwhile, many universities have decided that Grutter and Fisher are so vague as to be unworkable, and they simply ignore the cases as they go about their business.

As a result, in addition to pretending affirmative action isn’t about remedying racism, universities have engaged in yet more prevarication. Race is considered, but only as part of a vague, “holistic” evaluation of each student. So, if you’re on the admissions committee, don’t keep any notes, but wink-wink, nudge-nudge, and magically you’ll get to the numbers you want. Without counting, of course. Race-based admissions processes have grown as mysterious as the Sorting Hat from Hogwarts.

Now, it’s not that these terms can’t be concretized, as several legal experts have suggested. But this seems unlikely for several reasons.

First, the standards would come out of thin air. Each side has experts, all have proposed different thresholds, statistics, and measurement methodologies. On what basis is the Court to choose one over the other?

Second, setting strict standards places the Court in a legislative, even administrative, role—hardly the kind of judicial minimalism favored by the Roberts Court.

Third, and perhaps most importantly, no one agrees about anything. On the current court, three justices are resolutely against affirmative action: Justices Scalia, Thomas, and Alito. Three are resolutely for it: Justices Breyer, Ginsburg, and Kagan. (Justice Kagan has recused herself from Fisher¸because she helped argue the case when she was solicitor general.)

Two are in the middle—Chief Justice Roberts and Justice Kennedy—but both have expressed grave reservations about affirmative action specifically, and race-based programs in general. At oral argument, Chief Justice Roberts wondered aloud if there would ever be a time in which race would no longer be a factor in admissions—and didn’t get an answer.

Doing the math, this means that the university’s program may be doomed.

But doing the politics, maybe not. Neither Chief Justice Roberts nor Justice Kennedy has a taste for junking precedent, or putting the court on the (perceived) wrong side of history. That’s especially true because the Court dislikes making big rulings when it’s short-handed, and with Justice Kagan recused, that’s the case here.

So perhaps Justice Kennedy will try to rescue/renovate his much-maligned criteria from Fisher I, and whether this particular program lives or dies, affirmative action itself may survive. It’s even possible (though unlikely) that the court’s liberal justices could get on board with an opinion that narrow.

That would match Justice Kennedy’s initial exasperation in oral argument. But as the minutes ticked by, he grew exasperated with being exasperated. Maybe there was enough evidence in the record to evaluate Texas’s plan. And maybe, on that evidence, it would fail.

Abigail Fisher, the plaintiff in the case, is now 25. After her rejection from UT—incidentally, at least fifty white applicants got in ahead of her—she went to LSU. She has moved on. UT has moved on. But the law is still stuck in the mud.