The last twenty five years of affirmative action?

• Author: Johnson, Kevin R.
• Position: From Brown to Bakke to Grutter: Constitutionalizing and Defining Racial Equality

In a pair of much-watched cases decided by the Supreme Court in 2003, affirmative action has been vindicated, if not declared alive and well. (1) The decisions, at least for a time, put to rest a controversy that raged over the 1990s. (2) Since the Court in 1978 placed its somewhat obtuse imprimatur on affirmative action in the famous case of Regents of the University of California v. Bakke, (3) race conscious affirmative action programs rose and later, at least in some jurisdictions, fell. (4) The latest pair of cases announced a truce of sorts in the affirmative action hostilities. In so doing, however, the Court has virtually guaranteed that the debate over affirmative action will rage again in the not-too-distant future. (5)

The Court's decisions in the two University of Michigan cases (Gratz v. Bollinger and Grutter v. Bollinger)--one involving undergraduate admissions, the other law school admissions--raise fascinating questions, many of which undoubtedly will be addressed in this symposium. This essay considers one issue. In Grutter, Justice O'Connor, writing for a majority of the Court, bluntly stated the Court's expectation that, although lawfully permissible today, affirmative action programs like the one employed by the elite University of Michigan law school should not be necessary in 25 years. (6)

The 25-year time limit announced by Justice O'Connor grabbed immediate attention. (7) At first blush, the Court's pronouncement seemed overly optimistic, if not woefully out of place in a judicial opinion. However, well-settled precedent requires time limits on affirmative action programs. Supreme Court decisions have repeatedly emphasized that affirmative action programs to remedy past discrimination are "temporarys" measures and should be eliminated when no longer necessary. (8) Indeed, in certain instances, the Court has expressly required that affirmative action programs have time limits. (9) A limit ensures periodic review of a race-conscious program and that it is maintained only if needed or, if warranted, modified to better achieve its goals.

Despite the caselaw supporting durational limits on affirmative action programs, the 25 years announced by the Court, which came out of the blue in the opinion in Grutter, can be criticized. The instinctive reaction of many affirmative action advocates was that two-and-a-half decades will not be long enough to eliminate the need for affirmative action at elite public universities, most of which currently lack many minority students despite having had affirmative action programs in place for decades. (10) Racism has existed for centuries in the United States and, although the most blatant forms of racial discrimination have been declared unlawful, racism's legacy has proven extremely difficult to remedy. Nor does the nation appear on the road to educational equity. A crisis exists in the public elementary and secondary schools, which are racially segregated with a disproportionate number of minority children attending poorly financed schools. (11) No cure-all appears on the horizon, much less one that seems as if it can be implemented in time to benefit this generation of public school students.

But there is a more fundamental flaw in the Court's expected 25-year sunset of affirmative action. The Supreme Court accepted the affirmative action plan of the University of Michigan law school as serving the compelling state interest of ensuring a diverse student body, not to remedy past discrimination. (12) Race conscious programs designed to achieve a "critical mass" of minority students, and a diverse student body, would not seem to demand any expiration date, although periodic review might make policy sense in order to ensure scrutiny of the results of affirmative action programs and to evaluate whether the consideration of race remains necessary to ensure a diverse student body. Remedial-based affirmative action, in contrast, would not be necessary after the impacts of an institution's discrimination had been remedied. (13) Put differently, universities could still want to strive for a racially diverse student body even if an institution's past discriminatory history had been fully addressed, or even if the institution had never discriminated against racial minorities.

Moreover, even if one is sympathetic to the notion of time limits, an objection to the legitimacy of the Court's 25 year pronouncement exists. The Court arguably should not be in the business of establishing the precise limits on the duration of an affirmative action program. Political decision-makers, not the courts, ordinarily establish time limits, which by their nature appear arbitrary, such as limitations periods on claims for relief and sunset provisions in laws. Such periods reflect a wide variety of policy judgments best made by legislatures and policy-makers. (14)

The University of Michigan law school, not the U.S. Supreme Court, arguably should have provided for periodic review of its affirmative action programs--whether remedial or diversity-driven. Without regular review of the program, the argument goes, the Michigan law school's affirmative action program was not "narrowly tailored" to further a compelling state interest, the test applied to racial classifications used by the state. (15)

Along these lines, the argument could be made that the Supreme Court lacked the institutional competence to arbitrarily create a time limit that is the legitimate province of the political branches. (16) In this vein, Justice O'Connor, writing for the majority in Grutter, offered precious little justification or reasoning for the 25 year limit, but simply declared it to be. Some might speculate that this statement, which is technically dicta, was in the opinion as part of a political bargain to build a majority on the Court that would leave intact the University of Michigan law school's affirmative action program. That tends to lessen, not increase, the legitimacy of the Court's pronouncement that affirmative action should no longer be necessary in 25 years.

This paper analyzes the Supreme Court's statement in Grutter about the expected end of affirmative action. Part I offers background on Grutter and Gratz, summarizes the decisions, and discusses the debate on the Court over the future of affirmative action. Part II analyzes the efficacy of the 25-year limit announced by Justice O'Connor and the Court's previous emphasis on the "temporary" nature of affirmative action.

1. AFFIRMATIVE ACTION THROUGH GRUTTER AND GRATZ

   With grudging approval by the Supreme Court in 1978, affirmative action at universities across the United States grew for more than fifteen years. (17) In the 1990s, however, some lower courts and states wavered in their commitment to affirmative action. Race-conscious university admissions programs came under attack in a number of lawsuits and the political process abolished the programs in some jurisdictions. (18) In early 2003, the nation anxiously awaited the Supreme Court's latest pronouncement on affirmative action. To the surprise of some knowledgeable observers, the Court ruled that race-conscious admission programs that are narrowly tailored to further the compelling state interest of a diverse student body could survive strict scrutiny, thereby breathing new life into affirmative action.

   1. AFFIRMATIVE ACTION SINCE BAKKE

      In the 1978 case of Regents of the University of California v. Bakke, (19) the various opinions of a splintered Supreme Court were conventionally read as permitting affirmative action to ensure a diverse student body, which Justice Powell championed in his opinion in that case. (20) Although embraced by major universities across the country, the diversity rationale for the consideration of race in admissions--that is, that a public university should be allowed to consider race in pursuit of a diverse student body--has been much-criticized. (21)

      The other primary rationale for affirmative action--that race conscious programs were needed to remedy past discrimination by the university was not presented by the University of Michigan in Grutter and Gratz. The Supreme Court has recognized the propriety of the use of affirmative action to remedy past racial discrimination. (22) Some commentators have sought to justify affirmative action in public universities in certain states on the need to remedy their past discrimination. (23) However, the Court's decisions have made it difficult for government to justify an affirmative action program as a remedy absent a clear showing of past discrimination by the particular institution implementing such a program; (24) the Court has stated unequivocally that "[s]ocietal discrimination, without more, is too amorphous a basis for imposing a racially classified remedy." (25)

      Since Bakke, the Supreme Court in Adarand Constructors, Inc. V. Pena (26) and Richmond v. J.A. Croson Co., (27) endorsed the color-blindness principle--the idea that the law must be colorblind with respect to race, applied strict scrutiny to racial classifications in public contracting programs, and held that they violated the Equal Protection guarantee. The color-blindness principle undermined the race-consciousness seemingly endorsed by the Court in Bakke. Building on Adarand and Croson, the court of appeals in the famous Hopwood case held that Bakke did not survive those subsequent decisions and invalidated the University of Texas law school's affirmative action plan. (28) Hopwood by itself wiped out affirmative action in Texas, Louisiana, and Mississippi.

      Moreover, political movements in some states eliminated affirmative action. In California, perhaps the most well known example, voters passed a law, Proposition 209 or the "Civil Rights Initiative," which ended affirmative action in the University of California and California State University systems. (29) In the states in which affirmative action ended, public universities experimented...