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The Court after Scalia: What a conservative successor to Justice Scalia would mean for “affirmative action”

Roger Clegg is president and general counsel of the Center for Equal Opportunity.

I’ve been asked to discuss what will happen in the area of racial preferences – a.k.a. “affirmative action” – if Justice Antonin Scalia’s successor is a conservative.

Well, since Justice Scalia was a conservative, then what will happen is basically what has been happening. The new Justice will line up with Chief Justice John Roberts and Justices Samuel Alito and Clarence Thomas, who are pretty much categorically opposed to such discrimination, and will be in opposition to Justices Stephen Breyer, Ruth Bader Ginsburg, Elena Kagan, and Sonia Sotomayor, who can be counted on to defend politically correct racial preferences more or less categorically. And so it will continue to be a Kennedy Court.

And so, as well, we will continue to have to predict what Justice Anthony Kennedy would do in this area. This has always been a tricky business, and even trickier now after his surprising decisions the last two years in Texas Department of Housing and Community Affairs v. The Inclusive Communities Project and the second Fisher v. University of Texas at Austin, in which he joined with the liberals after years of voting with the conservatives (albeit sometimes with narrowing concurrences).

There are those, on both left and right, who read Justice Kennedy’s recent decisions as showing that he is no longer a conservative on issues like affirmative action and its close cousin, disparate impact. Those decisions were certainly a great disappointment to conservatives like me, but the hedging that Justice Kennedy included in them provides some silver linings (discussed here and here) that make me reluctant to write him off as a lost cause quite yet.

More broadly, 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 further good news is that there is reason for hope in each area if Justice Scalia’s successor rejects them.

Three areas

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, for example, how to pave a road.

Even more critically, contracts are not like employment selection or university admissions, where there is often an irreducible and significant amount of subjectivity in the decision making.  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 achieve any remedial purpose, that is, to detect and correct discrimination.  This is an area where, as Chief Justice Roberts wrote famously, “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 2017, the narrowly tailored way to remedy discrimination in the award of government contracts will not involve preferential treatment. Recall that Justice Kennedy, in the Fisher cases, emphasized that the “narrow tailoring” requirement is to be taken seriously.

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, sixty-two years after Brown v. Board of Education and fifty-two 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 v. DeStefano decision in 2009 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 Steelworkers v. Weber and Johnson v. Transportation Agency 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 not only severe statistical disparities (“manifest imbalance”) but also recent discriminatory practices (“traditional segregat[ion]”). This is similar to the standard Justice Sandra Day 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 2017, 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. I note again that Justice Kennedy has in past cases emphasized the importance of putting real teeth in “narrow tailoring.”

It is the third and remaining area, higher education, where perhaps the Court now has the most heavy lifting to do.  There’s no way around the fact that, to end racial preferences here, it must overturn Grutter v. Bollinger and, in particular, the holding there that the educational benefits of racial 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.

But the obvious question is whether Justice Kennedy would be willing to overturn Grutter when he was not even willing to rule against the University of Texas in Fisher II. It certainly is an uphill battle, but not necessarily a hopeless one.

Grutter was not directly challenged in the Fisher cases, and of course we are not yet at its twenty-five-year expiration date. The social science evidence is changing – consider the overwhelming documentation now of the “mismatch” problem – and the demographics of the country are, too. One of the cases in the lower-court pipeline directly involves allegations of politically correct discrimination against Asian Americans, the fastest growing racial group in America. Perhaps this context would be a better one in which our new Justice could persuade Justice Kennedy that, you know, Tony, it’s simply untenable in our increasingly multiracial and multiethnic society for our major universities to be sorting people according to skin color and national origin and treating some better and others worse depending on which silly little box gets checked.

The unrest on our campuses is very much a two-edged sword as well. It might frighten Justice Kennedy from ending racial preferences; on the other hand, it underscores the poisonous effects that political correctness and identity politics have had on campus, and argues for an end to the Court’s complicity in this nonsense.

Voting and disparate impact

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 have been frequently used to require racial gerrymandering designed to advantage 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, allegedly, 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 selection devices that no reasonable person would label as discrimination, and, what’s worse, drives many public and private actors to adopt either overt or covert racial quotas.

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 racial preference.  Justice Scalia signaled his willingness in this regard in his separate concurrence in the Ricci case, and in a footnote in his opinion for the Court earlier in Alexander v. Sandoval. His conservative successor would do the same. Here again, though, the fifth vote would have to be Justice Kennedy’s, and, after his opinion in Texas Department of Housing and Community Affairs v. Inclusive Communities Project, it cannot be counted on.

The Court has already effectively, and rightly, ended the use of Section 5 and its “effects” test; likewise, it should cabin the “results” test under Section 2 so that it focuses as much on disparate treatment and as little on disparate impact as possible. It’s remarkable that, though the “results” language was added in 1982, there has been very little case law to date, especially from the High Court, on its meaning outside the redistricting context.

Sex and a smile

I’ve focused on race here, but much of what I’ve written applies to sex discrimination and preferences as well. I’ll add only that a conservative successor to Justice Scalia would interpret the word “sex” in federal statutes like Title IX of the 1972 Education Amendments and Title VII to mean “sex,” and would reject the absurd arguments that it means “sexual orientation” or “gender identity.” If Congress wants to amend those statutes to read that way, that’s its job, not the Court’s.

A final, happy note: If a conservative replaces Justice Scalia, we can deduce that Hillary Clinton is not President of the United States and that someone else is. This means that there is a chance that there will be other conservative appointments to the Court, although it is also possible that future picks might be Donald Trump’s sister or Donald Duck. There is also a chance that future oral arguments will be held in the Huge Trump Courtroom at the remodeled Old Post Office Building. It also means that we are living in an alternative universe, in which SCOTUSblog may pay me a gazillion dollars for this essay and I can happily retire to a luxurious condo on a distant planet.

Recommended Citation: Roger Clegg, The Court after Scalia: What a conservative successor to Justice Scalia would mean for “affirmative action”, SCOTUSblog (Aug. 31, 2016, 10:53 AM),