Marc Ambinder thinks that the era of affirmative action may be coming to an end.
[Justice Anthony Kennedy] endorses the idea that affirmative action can be used to achieve a diverse student body, so long as race is considered as one part among many others, and so long as applicants are considered individually. It is hard to imagine him not finding fault with the racially conscious 15 percent admissions process. For Kennedy, race-conscious policies are permissible (barely) if (and only if) diversity cannot be achieved any other way. Plainly, the University of Texas has found a way to achieve some measure of diversity without affirmative action before it takes race into account.
Perhaps Kennedy will try to salvage affirmative action, but it is hard to see the court’s conservatives allowing him to do so. They have their chance to end it, not mend it. Though John Roberts has said (and told Congress during his confirmation hearings) that he values precedent and wants the court’s decisions to be incremental rather than sweeping, it will be hard to resist the temptation to sweep away racial preferences.
It seems to me that he actually put his finger on why affirmative action won’t be banned wholesale. If Kennedy wants to preserve affirmative action, but can’t justify it in Texas, he can merely write an opinion stating that affirmative action is not permissible where the aims are being met by other means. That would abolish affirmative action in Texas, while continuing to allow sympathetic jurisdictions an opportunity to keep with the policy. To universalize from Texas’ experience, Kennedy must be judicially confident that any state could achieve the manner of diversity through a Top 10% policy like Texas has. This may be true, but it’s far from certain for a whole host of reasons.
It seems to me that Kennedy remains relatively sympathetic to affirmative action. If I’m wrong on that, then maybe it is dead in the water. But if I’m right, he can either uphold it in Texas (by declaring that the existing racial diversity is insufficient) or uphold it everywhere else (with the above argument).
{Comment with care.}
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6 Responses to Why Affirmative Action Will (Probably) Survive
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The easiest argument is that the Supreme Court rarely limits the power of the government. Eliminating affirmative action because it is unenforcable (such as the line of questioning on how the university determines who is hispanic) or arbitrary or creates no real benefit would limit the power of the government.
The best guess is that the Supreme Court will act like it is limiting affirmative action but live a big enough loophole that universities will feel free to discriminate all they want.
I think, practically, they are afraid of starting off riots, and will hence vote to preserve AA while limiting it somewhat. People tend to know what they want to say and come up with arguments for it later, and nobody’s better at that than people at the top of the legal profession.
One idea I like is limiting AA to blacks (legacy of slavery and Jim Crow) and Native Americans (history of conquest and subjugation) while denying it to Hispanics and Asians as they or their ancestors came to America voluntarily.
Not that this will ever happen. In fact the federal government wants to expand AA, by extending it to Middle Easterners.
The best guess is that the Supreme Court will act like it is limiting affirmative action but live a big enough loophole that universities will feel free to discriminate all they want.
This is along the lines of my guess. They’ll limit it, but people won’t know exactly how it’s limited in a practical capacity. Another lawsuit will hit the Supreme Court before the decade is out. Rinse, Wash, Repeat.
Actually, no. Obama wins, Scalia dies, and AA is declared constitutional evermore.
Peter, I think you’re right. Probably the second strongest moral argument against AA is that it gives preference to some people whose ancestors voluntarily came over here and were at the receiving end of discrimination but not other people whose ancestors voluntarily came over here and were at the receiving end of discrimination… on the basis that the latter came here and succeeded. That’s… a bit hard to swallow. The moral argument for African Americans and Native Americans is far stronger.
SFG, I doubt we’ll see any sort of riots. I don’t think the fear is there. This isn’t visceral in the same sense that, say, a George Zimmerman acquital would be.
The funniest quote in favor of AA involved the lawsuit claiming that admissions examinations at New York’s ultra-elite high schools (Stuyvesant, Bronx HS of Science) discriminates against blacks and Hispanics. A black Stuyvesant graduate claimed that being a black or Hispanic student at the school is like being a single Cocoa Puff floating in a bowl of milk.
[Note: a bowl of lemonade would be more accurate.]