Affirmative action and legislative purpose.

• Author: Alexander, Larry
• Position: Response to Jed Rubenfeld, Yale Law Journal, vol. 107, p. 427, 1997

Jed Rubenfeld argues that the Supreme Court misunderstands the meaning of the Equal Protection Clause when it subjects minority preferences to strict (and almost always fatal) judicial scrutiny.(1) His argument is quite simple: Strict scrutiny's function is "smoking out" constitutionally illicit legislative purposes, not asking whether admitted violations of constitutional rights are justified by countervailing social benefits.(2) Racial preferences for minorities are usually instituted for quite legitimate purposes. Therefore, his argument continues, even if the benefits of such preferences do not exceed their costs, much less by the margin strict scrutiny demands, the preferences are constitutionally permissible.(3) The legislative enactment of terrible ideas is violative of equal protection only when motivated by an illicit legislative purpose, and affirmative action is not so motivated.(4) There are four problems with this argument, however, that Rubenfeld does not address.

1. WHEN DOES STRICT SCRUTINY APPLY?

   How do we know that affirmative action programs are not illicitly motivated if we do not apply strict scrutiny to them? After all, the problem that provoked Rubenfeld to write his Essay is that affirmative action programs failed the strict scrutiny tests in City of Richmond v. J.A. Croson Co.(5) and Adarand Constructors, Inc. v. Pena,(6) even though Rubenfeld believes they were constitutional. If these programs failed strict scrutiny, however, does that not demonstrate that they were unconstitutionally motivated? For Rubenfeld, the answer is apparently "no." For Rubenfeld infers the purposes behind affirmative action programs from evidence other than whether the programs pass the purpose-smoking-out strict scrutiny test.

   If, in the case of affirmative action, failing the strict scrutiny test does not "smoke out" an illicit purpose--because we can resort to other evidence to show proper legislative purposes--why don't we look to the same circumstantial evidence of legislative purpose in all cases? The best I can surmise is that Rubenfeld is employing some sort of threshold of "suspectness of purpose." If the threshold is reached, as might be the case with racial classifications that adversely impact blacks, then strict scrutiny is applied to determine whether the government can rebut the inference of improper purpose. If the threshold is not reached, as is the case with most affirmative action programs, then the legislative purpose is presumptively proper and strict scrutiny is not applied.

   Thus, Rubenfeld argues that when an affirmative action program is instituted in favor of blacks by a black-dominated legislative body, strict scrutiny might be appropriate because the presumption of an improper purpose would be strong.(7) But what would Rubenfeld say about a pro-black affirmative action program adopted by a white legislature that represented a predominantly black constituency, or a pro-black affirmative action program that excluded Hispanics or Asians as beneficiaries of racial preferences? There are not just two racial or ethnic groups that can win or lose in affirmative action programs, and there are not just two types of legislative configurations in the background of such programs. Once we start down the road of nuanced assessments of the likely legislative motivations for affirmative action programs, why should we not go all the way? Why should we resort to artificial evidentiary tests like strict scrutiny in some instances but not in others? If legislative purpose is our quarry, and we are willing to look at circumstantial evidence of purpose to get us to the triggering threshold, why not rely on all circumstantial evidence in all cases?

2. WHAT LEGISLATIVE PURPOSES ARE UNCONSTITUTIONAL?

   Rubenfeld is particularly vague in defining which legislative purposes are, in fact, unconstitutional. At one point he refers to "racist purposes,"(8) but he does not elaborate on what precisely a racist purpose is, although singling out a race for preferences is obviously not one. At another point, Rubenfeld refers to an "anticaste principle,"(9) and at still another to...