Landmark Cases: Bakke/Affirmative Action

[Per the Civil Rights Act of 1964,] we must decide, first, whether a complaint alleging that white employees charged with misappropriating property from their employer were dismissed from employment, while a black employee similarly charged was not dismissed, states a claim under Title VII.

-- Justice Thurgood Marshall in McDonald v. Santa Fe Trail Transp. Co. (1976)

Yes, it did. But, the constitutionality of affirmative action programs that in some fashion gives a "plus" based on race (or some other criteria, such as sex, which also currently receives heightened scrutiny)  is not quite the same question.  Nor, the application of a federally funded college affirmative action program or even the standing to make such a claim.  That is the issue at hand as Landmark Cases, Season 2, came to a close.*

My philosophy is generally "it is complicated," but I do have a sentiment toward basic rules.  So, it is understandable that some people use a one size fits all approach in this area though it doesn't really hold up to scrutiny. For instance, some like to reference Justice Harlan's Plessy dissent regarding the maxim that "Our Constitution is color-blind, and neither knows nor tolerates classes among citizens." But, Harlan accepted public school segregation and additional punishment for interracial fornication. His rhetoric was not to be taken totally literally. And, especially regarding public benefits, the originalist argument leaves something to be desired. Perhaps, this is why people like Scalia (see Rick Hasen's latest book) and Thomas use rhetoric more than history to back up there positions. 

The ruling here was split three basic ways (4-1-4) with Justice Stevens uniting the four dissenters in arguing that statutorily the affirmative action policy was invalid. A decade later, in Johnson v. Transportation Agency, he submitted to precedent there and accepted the law held otherwise.  But, Stevens -- though he left open some room for use of race based classifications in such areas, was rather strong about his concerns in the past, including references to Nazi Germany. It wasn't just a matter of fit. White joined with the liberals but separately argued that Bakke didn't have a cause of action to raise the statutory case though the majority rested on constitutional principle.

The decision of the case turned on Justice Powell and his position in effect also was later recognized (up to and including Fisher) as the law of the matter. Powell argued that the federal law at issue should be understood to bar the sort of "discrimination" that is unconstitutional, not something more. Furthermore, it is acceptable to use race as a factor in student selection as a matter of academic freedom (diversity) but a set number of seats is too blunt of an approach.  Societal discrimination is too open-ended of a state interest and there is not enough evidence that the policy was necessary for some sort of role model or to provide doctors to certain communities.  I see his position as a reasonable compromise approach but never really understood why social discrimination wasn't enough given the evidence we have. See also, Justice Marshall's separate opinion.**

We have never approved a classification that aids persons perceived as members of relatively victimized groups at the expense of other innocent individuals in the absence of judicial, legislative, or administrative findings of constitutional or statutory violations.

The opinions from the left appealed to various other situations where some benefit is selectively provided to specific racial or other groups (sex, vets, athletes, etc.; note many of these are not given the level of concern as race, so there is a key different, if only up to a point -- mere academic competence alone isn't the test here).  Powell argued they were different in various ways. I won't examine the issue here, but find the differences somewhat questionable though they are not all alike to be sure.  Note the special exception given that has a specific judicial cast; see also, two justices [Stewart/Rehnquist] from the conservative side in a later case.  Does the fifth section of the Fourteenth Amendment, at least, not suggest Congress has a special role here?  And, various things historically provided limited benefits to certain groups over others without "constitutional or statutory violations" being required. The matter has been dealt more strictly in the current era, but many conservatives dissented to such scrutiny.

Brennan provided the main partial dissent from the liberal side, reaffirming that race repeatedly was used to advance equality.  He cited cases like Yick Wo, a past case in this series, to note that stigma is a particular concern when determining invidious discrimination. Justice Stevens later reaffirmed this idea that race based affirmative action programs are not the same thing as Jim Crow laws (a door in the face is not the same as a welcome mat).  The set aside of a certain number of seats to him was not of constitutional significance.  Justice Blackmun basically said the same general things in his Blackmun sort of stream of conscious ways, adding the line that is best remembered that the way to address racism is to take account of race:

I suspect that it would be impossible to arrange an affirmative action program in a racially neutral way and have it successful. To ask that this be so is to demand the impossible. In order to get beyond racism, we must first take account of race. There is no other way.

Justice Kennedy in recent years in particular has been concerned with too blunt usage of race in government programs while leaving open the legitimacy of some usage. This has led to people wondering when he would find -- ala Goldilocks and the Three Bears -- a policy that is "just right" in his view.  The second Fisher v. Texas case was such as case apparently, Kennedy accepting that if the evidence was strong enough and race was only used as a partial factor that it would be legitimate. Again, I understand the logic of this up to a point but at some point as well it results in phony business like "ten percent plans" that work in large part because of racially discriminated school districts.  A set number of seats does seem blatant, but what about some sort of range?  Policy requires some sort of benchmarks.


The Oyez.com page provides a remarkable hour long opinion announcement with Powell, Stevens, Brennan, Blackmun and (out of order) Marshall providing a summary of their opinions.  One thing the opinions argue is that alternatives are not enough. Some do argue that class based systems might be better. And, like Sandy Levinson argues in his book Wrestling with Diversity, we do need to look beyond race here. But, like Blackmun highlights, race in particular is a problem.  We see this now with the concern given to the opioid epidemic, a more white disease than the crack epidemic. A general approach to drugs is appropriate but to ignore the race aspects is a fraudulent policy.  Same here.

---

* I skipped it because Randy Barnett isn't exactly an ideal guest (have issues with Neal Katyal, but more so Barnett as applied to his expertise above and beyond any number of people on this issue).  Hope they survived without citing one of my tweets.

** In the Stevens' dissent referenced above, involving a later case, he respected Marshall's eloquent discussion, but in effect said that any relief to blacks (called "Negroes" then) could not be done by the sort of rough affirmative action or "set aside" system in place in those cases.  Given Stevens' reference to Nazi racial classification regimes, it is somewhat hard to determine how we would find the suitable class here though, perhaps per some sort of "reparations" regime or something.