Town Hall Debate: Conservative v. Liberal on Affirmative Action decision

The court decided by a 7-1 vote to send the case back to a lower court–raising a whole new set of issues.

McConnell is the Richard and Frances Mallery Professor and director of the Constitutional Law Center at Stanford Law School, as well as Senior Fellow at the Hoover Institution. Click here for more on McConnell.

Rosen is the president and CEO of the National Constitution Center and the legal affairs editor of The New Republic, and a law professor at George Washington University. Click here for more about Rosen.

We asked each expert to send us an opening statement that sums up their position on the long-term impact of the decision. You can read these statements below. Both McConnell and Rosen will respond in detail to the points raised in the opening arguments.

You can read the court's decision in the case at this link.

Opening statement from Michael McConnell:

Commentators were quick to declare the Supreme Court's 7-1 decision this morning in the affirmative action case, Fisher v. University of Texas, a "punt." One person called it "a nothing-burger." Not so fast. The decision is more important than it may appear at first glance.

First, there was more substance to the decision than that. To be sure, the Court did not tell us whether the University's program is constitutional or not. It said almost nothing about the merits. But – with the full force of a seven-Justice majority – the opinion stressed that strict scrutiny means strict scrutiny, at least with respect to the means chosen to achieve diversity. Past decisions made that questionable. In past affirmative action decisions, the Court resembled parents patting themselves on the back for being so strict, all the while allowing the kids to eat ice cream before spinach, and to choose their own bedtime. This opinion tightened the screws. The key passage: "The reviewing court must ultimately be satisfied that no workable race-neutral alternatives would produce the educational benefits of diversity." On this point, "the University receives no deference."

Taken seriously, that calls most university affirmative action schemes into question. There are almost always ways to achieve diversity that do not involve judging applicants by their race. The Court did not reach the actual merits of the Texas case, but hanging over the decision is the fact that the University of Texas achieved a higher percentage of black and Hispanic students with a race-neutral system than it did under its prior race-conscious one. The California university system seems to have achieved reasonable levels of diversity even after a state constitutional prohibition on explicit use of race. Indeed, to the extent that universities substitute proxies based on economic background, actual diversity – as opposed to mere racial diversity – might be better achieved without explicit use of race. In this sense, the Court has made the explicit use of race in the student admissions process more difficult and maybe impossible. That is not a "punt."

Not that the Court's holding is particularly clear.  What, exactly, are the "educational benefits of diversity?"  Can they be measured? If they cannot be measured, how can strict scrutiny be strict? How much diversity is enough? Is it anchored to the demographics of the applicant pool? Will courts defer to universities about this question? What makes a race-neutral plan "workable"? Presumably there are trade-offs. Any university can attain all the diversity it wants if it sacrifices other objectives, such as attention to academic merit. Use of the Ten Percent Plan presumably lowers the average SAT and GPA scores of the incoming class, by some amount. How is a court supposed to judge the size of these trade-offs?

But second: All this talk presupposes that it is legitimate for public universities to seek a certain approximate racial mix. We are only arguing about how to achieve it. Genuine color-blindness is not on anyone's agenda. That is an indication of how entrenched affirmative action is.

And third: Fisher further entrenches the highly dubious intellectual construct of theGrutter opinion. I would hazard the guess that no one really believes Grutter got it right. For those who think all use of racial classifications is a constitutional wrong, Grutter is a hypocritical mess, saying one thing and doing another. But supporters of affirmative action cannot like Grutter either. Supporters of affirmative action do not support affirmative action because there is an ill-defined "diversity" exception to the constitutional color-blindness rule. They believe that government action to improve the lot of a subordinated class is not a denial of equal protection of the laws. They believe affirmative action is worthy in principle, not that it satisfies strict scrutiny.

In this broader sense, Fisher is not so much a "punt" as it is an exercise in inertia. With the noble exceptions of Justices Thomas and Ginsburg (almost), and maybe Scalia, the Court is determined to keep to the path laid by Grutter, even if that decision does not make much sense from any principled point of view.

Opening statement from Jeffrey Rosen:

Many thanks for this thoughtful contribution. I agree that Fisher isn't a punt, but view its significance differently. The decision is a tribute to the moderation of Justice Kennedy and Chief Justice Roberts, who defied expectations and insisted on a narrow rather than a broad opinion.

Unlike Justice Clarence Thomas, who would have overturned the Grutter case, and cases stretching back to the Bakke decision in 1978, which hold that educational diversity is a compelling interest for universities to pursue, Kennedy and the six conservative and liberal justices who joined him continued to accept Grutter as good law. That is a hugely significant act of judicial restraint, especially since most commentators expected the Court to go the other way. (At the oral argument, Justice Sonia Sotomayor said to those who were challenging the University of Texas, "So you don't want to overrule Grutter, you just want to gut it." [http://www.dailykos.com/story/2012/10/10/1142861/-Sotomayor-strikes].)

You consider Grutter a "hypocritical mess," but its clear principle that educational diversity is a compelling interest has been the law of the land since 1978 and for Burkean conservatives who care about precedent, overturning it would be been tremendously disruptive for the settled expectations of universities across America. I think Justice Kennedy and Chief Justice Roberts, as well as Justices Alito and Scalia, get lots of credit for having been true bipartisan minimalists on this score.

You lament the fact that "genuine color-blindness is not on anyone's agenda." But as a constitutional matter, for conservatives who care about the original understanding of the Constitution, should it be? You are the most distinguished conservative constitutional historian in the country when it comes to the original understanding of the 14th Amendment. In your 1995 article in the Virginia Law Review, Originalism and the Desegregation Decisions,  you argued persuasively that the Framers of the 14th Amendment only intended the government to be color-blind when it comes to civil rights, not political or social rights, and you've conceded that majorities of the Framers and ratifiers of the 14th Amendment may not have conceived equal access to education to be a fundamental civil right when the amendment was ratified in 1868. You have a sophisticated response to this point – namely, education may have been considered a civil right by 1875, and it should be considered one today. But this requires a degree of living constitutionalism that Justices Scalia and Thomas aren't usually willing to indulge.

On that score: what did you make of Justice Thomas's remarkable concurrence? He embraces an extremely categorical prohibition on racial classifications. He repeated his sweeping claim from his Grutter dissent, insisting that "only those measures the State must take to provide a bulwark against anarchy, or to prevent violence, will constitute a 'pressing public necessity'" sufficient to satisfy strict scrutiny of racial classifications." Do you really think the Framers of the 14th Amendment would have agreed with this remarkably categorical prohibition – especially because, as you have argued, they expected Congress, not the courts, to take the lead in enforcing the equal protection clause? And how does Justice Thomas reconcile his position that racial classifications can only be used to prevent violence with the race conscious measures adopted by the 14th Amendment's framers, including the freedman's bureau?

More broadly, Thomas makes this arresting claim: "There is no principled distinction between the University's assertion that diversity yields educational benefits and the segregationist's assertion that segregation yielded those same benefits." This isn't the first time he has equated affirmative action on the one hand with segregation on the other. Thomas also compares affirmative action to slavery, noting that "slaveholders argued that slavery was a 'positive good' that civilized blacks and elevated them in every dimension of life." Do you agree with his analogy between affirmative action and slavery and, if not, can you help us understand why he thinks the two are constitutionally similar?

The policy merits of affirmative action are among our most difficult and contested national questions. But on the constitutional merits, I would think for an originalist like Justice Thomas, the only question is what the Framers and ratifiers thought the 14th Amendment meant and whether their vision is consistent with the affirmative action program adopted by the University of Texas. There is not a word in Justice Thomas's opinion about that original understanding. I wonder whether you think his opinion would have been stronger if it had included that history and, if so, what aspects of the history you think suggest that Grutter should be overruled and the University of Texas's affirmative action program struck down.