Abstract
Excerpted From: Michael C. Dorf, Race-Neutrality, Baselines, and Ideological Jujitsu after Students for Fair Admissions, 103 Texas Law Review 269 (December, 2024) (168 Footnotes) (Full Document Requested)
In the hand-wringing conclusion to an oft-cited but rightly infamous article, Professor Herbert Wechsler lamented that he had not yet overcome the ““challenge” of defending the result in Brown v. Board of Education against the charge that there is no “basis in neutral principles for holding that the Constitution demands that the claims” of Black Americans not to be treated as outcasts prevail over the claims of white racists to employ state power to enforce segregation. Wechsler was laughably obtuse about Brown and also misguided in his insistence that neutrality should be the sine qua non of adjudication, but he was right about how litigation works.
Legal principles are abstractions that cannot be confined to the context in which they are launched. They are “neutral” (as Wechsler insisted) at least in the sense that a conservative court can use a legal rule or standard first articulated by liberal jurists to serve conservative ends, and vice-versa. The abstractness of legal principles thus enables agile lawyers to engage in a kind of ideological jujitsu--turning opponents' strengths against them.
The Roberts Court's treatment of Brown exemplifies such ideological jujitsu. In defining equality under the Constitution as color-blindness, full stop, the Court has repeatedly invoked Brown, despite the protests of dissenting Justices. Those dissenters have tended to view Brown as the fulfillment of both halves of the first Justice Harlan's dissent in Plessy v. Ferguson. After all, the two sentences that precede Harlan's statement that the “Constitution is color-blind” espouse an anti-caste principle that laws and policies promoting racial integration advance rather than violate. As colorblindness's critics see it, the constitutional obligation for government actors to look past race has substantially less force when used to ameliorate, rather than to perpetuate, racial subordination.
The champions of color-blindness tout court have responses, of course: no use of race can simply be assumed benign without testing through the crucible of strict scrutiny; race-conscious ameliorative measures themselves reinforce the stereotypes their proponents seek to undercut; people who did not perpetrate white supremacy should not have to bear the cost of remedying it even if they benefit from it; and so forth. And the critics of colorblindness have their surrebuttals, including the accusation that the principle's champions are simply reading their preferences into a constitutional provision proposed by a Reconstruction Congress that neither preached nor practiced color-blindness.
To those of us who study and practice constitutional law, the debate is familiar and, after a half century, tired. It is also over. Alas, we who thought race-based affirmative action sensible--or at least constitutional-- have lost. Color-blindness has won, partly through the accidental timing and hardball politics of Supreme Court appointments, but also because race-based affirmative action has been unpopular for at least a generation: Even as they were delivering large majorities to Democratic candidates, voters in ostensibly liberal California forbade it in 1996 and reaffirmed that judgment in 2020. In between, in Michigan in 2006, voters decisively reelected their Democratic governor while simultaneously and slightly more decisively forbidding affirmative action. The Court's composition and our politics could eventually change again, but for at least the medium-term the question is not whether the Constitution is color-blind but what, as a practical matter, color-blindness means.
The answer is not obvious. On the last two pages of the majority opinion in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College (hereinafter SFFA), Chief Justice Roberts simultaneously invited and sought to ward off subterfuges reminiscent of both the massive resistance to Brown and hostility towards (including routine violations of) the Court's school prayer rulings. Despite devoting nearly the entire opinion to explaining why universities like Harvard and the University of North Carolina could no longer treat student body diversity as the sort of compelling interest that justifies race-based plus factors in admissions, the critical paragraph reassured readers that the Court was not “prohibiting universities from considering an applicant's discussion of how race affected his or her life, be it through discrimination, inspiration, or otherwise.” However, the Court warned in the very next sentence, “universities may not simply establish through application essays or other means the regime” that the Court held invalid in the balance of the opinion.
There is no caste here; the Constitution is color-blind. Universities may consider an applicant's experience of race; they may not consider race itself. Here we see history repeating itself as both tragedy and farce. Or so it might appear to admissions officers, the lawyers who advise them, and the lawyers who will inevitably sue on behalf of rejected applicants claiming that an admissions essay ostensibly asking about applicants' experience of race was really a covert means of discovering and illicitly weighing each applicant's race as such.
The seemingly scholastic distinction between racial experience and race itself implicates two broader questions with important practical implications. The first is whether facially race-neutral criteria adopted with the aim of increasing or maintaining racial diversity should be deemed race-based and thus trigger strict scrutiny. Prior to SFFA, that question was often discussed in connection with admissions schemes in Texas and elsewhere that guarantee admissions to state universities to students whose high school grade point averages were in some top percentage of their respective classes. Affirmative action's opponents tendered such programs as race- neutral alternative means of achieving racial diversity that, in their view, demonstrated expressly race-based measures were unnecessary; affirmative action's defenders responded that the percentage plans were not actually race-neutral, chiefly because they leveraged de facto residential segregation.
Since SFFA, the political valence of these positions has flipped. In a display of ideological jujitsu, opponents of affirmative action who have turned their sights on all efforts to promote racial diversity now deploy the arguments formerly used by their adversaries to attack nominally race-neutral means of increasing or maintaining racial diversity. Diversity's defenders respond in turn by discovering that the likes of the George W. Bush administration were right after all when they described facially race-neutral means of achieving diversity as race-neutral, full stop.
Who's right? The question is open, but this Article argues that at least some facially race-neutral selection criteria adopted for the purpose of increasing or maintaining racial diversity should count as race-neutral rather than race-based. It practices ideological jujitsu to leverage statements made and positions embraced by conservative Justices in the pre-SFFA period for validating the rearguard efforts that affirmative action's erstwhile champions (including the current author) must now undertake to defend facially race-neutral efforts to sustain some measure of racial diversity in higher education.
The claim that race-conscious but facially race-neutral means of increasing or maintaining racial diversity should be deemed race-neutral is not new. Consider a recent article by Professor Sonja Starr focusing chiefly on competitive admissions to secondary schools. She offers a powerful argument that a wide range of Supreme Court case law undisturbed by SFFA assumes the permissibility of what she calls facially race-neutral but race-conscious “ends-colorblindness” while forbidding only “means-colorblindness.” In addition to defending the former on substantive grounds, Professor Starr acknowledges that other scholars critical of colorblindness also sought to defend ends-colorblindness many years before the Supreme Court's decision in SFFA. In the same vein, a forthcoming article by Professor Deborah Hellman makes a powerful argument for disentangling the presumptive invalidity of expressly race-based classifications from a separate principle forbidding the use of race-neutral means with the intent to harm.
Originality aside, it is not clear how this sort of argument will ultimately play out. Courts hostile to diversity as such could reverse their prior position to conclude that percentage plans and other facially race-neutral selection criteria are impermissibly race-based after all. Diversity's champions must be prepared to make additional arguments in favor of sustaining such criteria. Therefore, this Article develops another basis for sustaining race-neutral criteria, one that uses ideological jujitsu to build on a more than fifty-year-old precedent that civil rights advocates have long disdained: Palmer v. Thompson.
In response to desegregation orders, Jackson, Mississippi closed all of its public swimming pools. The lower federal courts found no equal protection violation, and a 5-4 divided Supreme Court affirmed. The Court first opined categorically that an illicit purpose does not render an otherwise valid law invalid. That aspect of Palmer's holding is clearly bad law. It was effectively repudiated just five years later in Washington v. Davis. However, an important piece of an alternative rationale offered by the Palmer Court remains good law.
Palmer's alternative rationale has three steps: (1) Jackson had no obligation to establish public swimming pools in the first place; (2) its elimination of the public swimming pools affected persons of all races equally; and (3) therefore, it was a permissible instance of leveling down. If Palmer was wrongly decided on its facts, that is because proposition (2) is wrong: Although the closure of the public pools denied Jackson residents of all races the ability to swim in a public pool, it worked additional harms-- including stigmatic harm--to Black but not white residents. However, even if (2) is wrong and Palmer was therefore wrongly decided in its bottom line, proposition (1) is valid and potentially extremely useful in defending the constitutionality of facially race-neutral means of increasing or maintaining racial diversity.
To see how, consider a schematic example. Suppose that an undergraduate admissions office that had formerly used race as a plus factor in accordance with the pre-SFFA law discovers that its enrollment of Black, Latinx, and Native American students drops substantially after it shifts to wholly race-neutral admissions criteria such as high school grades and standardized test scores. It responds by shifting again, now to an admissions lottery for which all students above a minimum threshold are eligible. As a result, the overall median test score and median GPA of the admitted class fall somewhat but enrollment of the relevant underrepresented minority groups rebounds to close to pre-SFFA levels. Correspondingly, however, the percentage of Asian American and white students declines to roughly pre-SFFA levels. Is the adoption of the lottery, therefore, a violation of the equal protection rights of the Asian American and white applicants who do not gain admission under the lottery but would have been admitted under the admissions criteria that immediately preceded it?
One way to resist that conclusion would be to emphasize that the lottery is facially race-neutral--that despite the Supreme Court's seeming endorsement of total color-blindness, there remains a constitutionally significant distinction between aiming to perpetuate racial hierarchy and other race-conscious motivations. That is the approach of Professor Starr and the scholars whom she cites as having anticipated her argument. As noted above and elaborated below, there is much to be said for this approach, but a very conservative judiciary might well resist it.
Accordingly, diversity's proponents and defenders need an alternative path. The heart of this Article offers one: defend the lottery by invoking Palmer to deny that it has any constitutionally significant disparate racial impact. Asian American and white applicants fare worse (on average) under the lottery than they did under the grades-plus-test-scores regime that immediately preceded it, but there is no reason to treat the immediately prior regime as the yardstick against which to detect a disparate impact. As the United States Court of Appeals for the Fourth Circuit recently observed, there is “no precedent standing for the proposition that a particular racial or ethnic group's performance under a prior policy is 'the proper baseline for comparison’ in a disparate impact inquiry concerning a newly enacted policy.”
Maybe not, but is there precedent for rejecting the immediately prior regime as the relevant baseline? The Fourth Circuit quoted Village of Arlington Heights v. Metropolitan Housing Development Corp. for the proposition that a policy has a disparate impact only if it “bears more heavily on one race than another.” Yet that language is not dispositive. A lottery or a similar facially race-neutral selection mechanism might bear no more heavily on one race than another as measured against each group's proportion in the general population or applicant pool but nonetheless might bear more heavily on some groups than others relative to the prior regime. The Arlington Heights language does not resolve the key question.
To be sure, the Arlington Heights Court seemingly endorsed population proportions as the baseline for measuring disparate impact, but the Court in that case was not faced with any claim that the prior regime was the correct yardstick--and in any event, its discussion of that issue was essentially dicta, as the case went on to hold that the plaintiffs had failed to adduce sufficient evidence of race-based purpose.
Nonetheless, the Fourth Circuit was correct about the baseline question, even though the court merely asserted the point while citing inapposite authority. Case law construing statutory disparate-impact claims confirms the claim. In statutory cases, courts typically look to applicant pool or population data-- not simply to whatever policy was in place before the adoption of the challenged policy--to determine the relevant denominator. And SFFA relies on the longstanding treatment of federal statutory antidiscrimination law as equivalent in key features to constitutional equal protection. Moreover, Palmer provides powerful grounds to support and justify rejecting the status quo ante as a baseline for finding disparate impact, if only diversity's proponents would be willing to invoke it.
The balance of this Article proceeds in four parts. Using percentage plans as the key example, Part I evaluates the claim that a facially race-neutral policy adopted for the purpose of increasing or maintaining racial diversity counts as race-based and should thus trigger the same strict scrutiny as facially race-based criteria. Offering arguments that complement those made by other scholars, it suggests that notwithstanding the current Supreme Court's embrace of color-blindness, there is room to argue that some such policies should be treated as truly race-neutral.
Parts II through IV then turn to this Article's primary original contribution to the literature: the Palmer-based argument. After explaining why some facially race-neutral policies present idiosyncrasies that make generalization difficult, Part II refines the analysis by settling on an admissions lottery as the ideal hypothetical test case.
Part III develops the Palmer-based argument. It turns to statutory employment discrimination law as an area where courts have grappled with the baseline question and rejected the notion that disparate impact should be measured relative to whatever the status quo ante happened to be. It acknowledges that the existing status quo is sometimes the appropriate baseline for measuring a policy's legal impact--with property rights as the primary example--but explains that this approach is inappropriate in most equal protection cases, including the hypothetical admissions lottery.
Part IV addresses a potentially troubling counterargument. It asks whether reliance on Palmer proves too much. Would it validate race-neutral policies adopted for the illicit purpose of disadvantaging a racial minority group so long as the disadvantage does not fall below some population-based threshold? Part IV explains that this question really asks whether Palmer was right on its facts. I suggest that advocates of diversity who wish to avoid the disturbing implication can rely on narrower critiques of Palmer that emphasize animus and stigma, while preserving Palmer's insight that the status quo ante is rarely the appropriate baseline for measuring disparate impact.
The Article concludes with the admonition that lawyers and legal scholars should never hesitate to deploy ideological jujitsu even while acknowledging that its efficacy depends ultimately on judges' ability and willingness to be principled.
[. . .]
SFFA does not invalidate facially race-neutral means of advancing racial diversity, but through litigation already pending and additional cases likely to be filed, racial diversity's critics will press hard towards that result. In pushing back, diversity's champions can practice ideological jujitsu on two tracks. First, we can deploy the arguments for facially race-neutral means that were formerly advanced by diversity's opponents as grounds for deeming race-based approaches unnecessary and thus unlawful. Second, we can redeploy Palmer v. Thompson and other landmark cases--that, when decided and on their facts, acted as a brake on civil rights claims--to resist the claim that programs that aim at diversity have a disparate racial impact simply because they result in a change from the status quo ante.
Will it work? That remains to be seen. Ideological jujitsu relies on the same dynamic as Wechsler's conception of neutral application of legal principles. It appeals to the equality norm at the heart of a system of precedent: the demand that like cases be treated alike. However, equality is, if not exactly an empty concept, one that invites supplementation with values that will vary depending on the ideological druthers of whoever is doing the supplementing. Accordingly, jurists who oppose efforts to promote diversity may conclude--whether disingenuously or sincerely--that race-neutral means of achieving diversity are not relevantly like Jackson's closure of the swimming pools or any other precedents diversity's champions invoke.
But that risk inheres in all legal scholarship and advocacy that rely on judicial precedent. In a doctrinal mode, all that scholars and lawyers can do is point to the logical and practical consequences of the principles that jurists espouse. If those jurists do not follow where the principles they espouse lead, that is on them.
Robert S. Stevens Professor of Law, Cornell Law School.
