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Ending Racial Preferences

The following is an opinion piece by Roger Clegg, president and general counsel of the Center for Equal Opportunity, for our program on Race and the Supreme Court.

When it comes to vindicating the principle of racial equality, the Supreme Court has a lousy record.   Consider:  Dred Scott.  Plessy.  Korematsu. The kindest thing that can be said is that its record is not strikingly worse than the other two branches of the federal government, and better than a lot of state governments.

As a critic of politically correct as well as politically incorrect discrimination, I would add some other names to the list: Weber.  Fullilove.  Grutter. Oh, and Griggs.

But hope springs eternal.  In 2010, the Supreme Court’s jurisprudence is finally solid when it comes to old-fashioned discrimination.  Brown.  Gomillion.  Loving. And it has made progress in striking down politically correct discrimination as well.   Adarand.  Gratz.  Ricci.

This is overdue but welcome.  America has always been a multiracial and multiethnic nation, and it is becoming more so.  Indeed, this is true not only of the country as a whole, but of more and more individual Americans.  Obama.  Woods.  Connerly.  In such a nation, we simply cannot have a legal regime that classifies and divides people according to skin color and what country one’s ancestors came from, and treats some better and others worse, depending on which box they check.

The bad news is that the use of racial preferences remains too common.  The good news is that such preferences are mostly concentrated in the three areas of contracting, employment, and higher education.  And the even better news is that, in each area, the Supreme Court could effectively end such discrimination—and, indeed, recent trends in its jurisprudence suggest that it is poised to do so.

In government contracting, for example, the Court has already established that preferences will be subjected to strict scrutiny, whatever level of government is involved.  It is unlikely to recognize a compelling interest here other than remedying discrimination, there being no uniquely African American perspective on how to pave a road.

Even more critically, contracts are not like employment selection or even university admissions, where there is often an irreducible and significant amount of subjectivity in the decisionmaking.  Rather, the low-bid process in government contracting (and subcontracting) can be made very transparent at every step, and this transparency should make it relatively easy to detect and correct discrimination.  This is an area where, as Chief Justice Roberts wrote recently, “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”

Accordingly, the Court should make clear that, in 2010, the narrowly tailored way to remedy discrimination in the award of government contracts will not involve preferential treatment.

Employment is like contracting in that the Court has never recognized a “diversity” rationale (nor is it likely to do so, since the key federal statute, Title VII of the 1964 Civil Rights Act, allows no “bona fide occupational qualification” for race).  Once again, the predicate is essentially remedial, requiring an employer that wants to use preferences to show a “manifest imbalance” in a “traditionally segregated” position.  One hopes that, 55 years after Brown v. Board of Education and 45 years after the 1964 Civil Rights Act, there is not much traditional segregation left—especially at companies that have cheerfully been discriminating in favor of “underrepresented” minorities.  The Ricci decision last year now further suggests that an employer’s track record of discrimination against, say, Latinos has to be so bad and so recent that, if it did not provide them a preference, there is a “strong basis in evidence” that it could be successfully sued for that failure—a very high bar.  If, per Ricci, an employer cannot legally engage in disparate treatment unless there is a strong basis in evidence that it would otherwise lose a Title VII lawsuit, why should it be able to engage in disparate treatment when it is not motivated by fear of a Title VII lawsuit at all?

So what’s needed in the employment area is for the Court to clarify the remedial predicate required by Title VII, and to interpret the legal standards in Weber and Johnson to conform with the one articulated in Ricci.  Any employer that wants to use otherwise forbidden disparate treatment must have “a strong basis in evidence” that it would otherwise be liable, and that evidence would typically include statistical disparities (“manifest imbalance”) and recent discriminatory practices (“traditional segregat[ion]”). This is similar to the standard Justice O’Connor supported in her concurrence in Johnson.

Or the Court could simply overturn Weber and Johnson, since those much-criticized and unstable opinions also held that preferences cannot “unnecessarily trammel” the interests of nonpreferred employees—and, in 2010, there will never be a situation where the “necessary” way to fight discrimination is through more discrimination, rather than simply stopping discrimination.  The decisions are now obsolete by their own terms.

It is in the third and remaining area, higher education, where perhaps the Court has the most heavy lifting to do.  There’s no way around the fact that it must overturn Grutter v. Bollinger and, in particular, the holding there that the educational benefits of racial and ethnic diversity in a student body are so compelling as to justify discrimination in order to ensure them.  The fundamental problem in Grutter is that the social-science evidence cited is uncertain and the purported benefits only marginal; furthermore, the Court did not weigh the heavy costs of such discrimination.  In his opinion in a more recent case involving the alleged educational benefits of diversity, Parents Involved in Community Schools v. Seattle School District No. 1, Chief Justice Roberts nodded toward such benefits being “dispute[d]” and “intangible,” while “the costs are undeniable.”

Surely all this has to be weighed in determining if the asserted interest in compelling.  The result will simply move up by a few years Grutter’s self-imposed 2028 expiration date.

A couple of other points, related to one another.  We could plausibly add voting, and especially redistricting, as a fourth category in which racial preferences are common.  In particular, Sections 2 and 5 of the Voting Rights Act are frequently used to require racial gerrymandering designed to help empower minority voters.  This is done through a “results” and “effects” test, respectively.  Each is an example of a “disparate impact” mechanism, which is also found in Title VII of the 1964 Civil Rights Act (and, arguably, in some other federal statutes, and, inarguably if illegally, in a variety of federal regulations).  Practices, procedures, and selection criteria that are nondiscriminatory by their terms, intent, and application are nonetheless deemed discriminatory because they lead to racially disproportionate results.  Thus, this approach, in the name of nondiscrimination, bans what no reasonable person would label discrimination, and, to the contrary, drives many public and private actors either to adopt racial quotas or to abandon perfectly legitimate tests and the like.

So, when the Court finishes getting rid of overt racial preferences in contracting, employment, and higher education, it can also strike down the disparate impact approach as a form of covert racial preference.  Justice Scalia signaled his willingness in this regard in his separate concurrence last summer in the Ricci case, and in a footnote in his opinion for the Court earlier in Alexander v. Sandoval.  Chief Justice Roberts, of course, suggested his skepticism about the constitutionality of Section 5 of the Voting Rights Act in his opinion for the Court last year in Northwest Austin Municipal Utility District Number One v. Holder; the only justice who did not join him was Clarence Thomas, who would have struck down the statute without further ado.

Having done this tidying up, the Court can then rest.