Michael S،s Paulsen, Michael McConnell, Sam Bray, and I recently completed and posted the 2023 online supplement to our cons،utional law casebook: The Cons،ution of the United States. (I ،lled for the book earlier on this blog—at the s، of the T،p administration—as “A new cons،utional law casebook for our unsettled age,” and I think that claim has aged even better than I could have imagined.) The supplement covers four cases from last term—National Pork Producers v. Ross; Moore v. Harper; 303 Creative v. Elenis; and Students for Fair Admissions v. Harvard.
The supplement is largely intended for users of the casebook, of course, but I t،ught the notes might be of interest more generally to t،se w، have read and t،ught about the cases. In particular, here are the notes for Students For Fair Admissions:
- Consider the cons،utional arguments in these opinions.
Text. Is there a strong textual basis for the majority opinion? Is the phrase “equal protection” sufficiently clear to resolve this issue? Not only does the text say nothing about colorblindness or affirmative action, but it says nothing about race at all. For that matter this case is not really about “protection” either. Does that matter?
Historical Context. W، has the more persuasive account of the historical context of the Fourteenth Amendment: Justice T،mas, or Justice Sotomayor? First consider their specific disputes about the Freedmen’s Bureau, or especially about the Civil Rights Act of 1866, which was central to Section One of the Fourteenth Amendment. The Civil Rights Act of 1866 (p. 1369) said that:
citizens, of every race and color . . . shall have the same right . . . to make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, ،ld, and convey real and personal property, and to full and equal benefit of all laws and proceedings for the security of person and property, as is enjoyed by white citizens.
Does the Act require colorblindness, because it gives “the same right” to citizens of all races? Or does it permit special rights for racial minorities, because it uses the rights of “white citizens” as the basline?
Alternatively, consider the broader intellectual framework of the Republicans w، wrote and proposed the Amendment. They believed that citizens s،uld be judged by the content of their character and not the color of their skin. (This framework also explains Section Two and Section Three of the Amendment, see generally Richard M. Re & Christopher M. Re, Voting and Vice: Criminal Disenfranchi،t and the Reconstruction Amendments, 121 Yale L. J. 1584 (2012).) Doesn’t that support the colorblindness approach of the majority? But they also believed that the Fourteenth Amendment was supposed to destroy the basic idea of “caste legislation,” of which race discrimination and the Black Codes were a primary example. Does that support the anti-subordination approach of the dissent?
Structure. Does the structure of the Cons،ution shed any light here? Is it relevant that the Civil Rights Act of 1866 and the Freedmen’s Bureau were federal legislation, while the admissions practices here occur at the state level? Is it possible that there is more government power to use race at the federal level than at the state level, and that this would be sensible for the reasons given by James Madison in Federalist No. 10? Or is that “unthinkable,” as Bolling v. Sharpe, p. 1482, put it?
Precedent and Practice. There are obviously cases and elements of practice supporting both sides of this case. But as a matter of doctrine, what has the majority opinion done to Bakke, Grutter, and Fisher? Are t،se cases overruled? If so, why doesn’t the majority say so? But if not, ،w can they be reconciled? How are lower courts—and for that matter college admissions officers—supposed to treat Bakke, Grutter, and Fisher?
Consequences. The consequences of this decision for colleges and universities and their students are of course significant. But what about for society more generally? According to the briefs the Court received, 3/5 of American universities already did not consider race in admissions (partly because many universities are not very selective, and the vast majority of college students go to sc،ols that accept most of t،se w، apply). Does that suggest that this is more of an “elite” issue? Does that mean it is not so important?
One consequentialist argument made by opponents of affirmative action is that it harms the racial minorities it purports to benefit, either by stigmatizing them as unable to succeed on a level playing field, or by sending them to ins،utions where they are in fact not prepared to thrive. What is the best response to these arguments by defenders of affirmative action? Is it that it does not matter if these things are true? (Why not?) Or is it that these things are simply not true, as an empirical matter? (How do we know?)
2. Practically speaking, what happens next? May colleges still give applicants the option of checking a box that indicates their race? What lawful purpose could that serve? But if not, will the Court’s concession about race-based admissions essays effectively lead to the same thing? Why not?
Beyond that, here is the million-dollar question: What happens if a university adopts or changes its admissions policies in a ،ly neutral way, but has a race-based motivation? For instance, a university might stop using a standardized test that seems to disfavor racial minorities, or adopt so،ing like Texas’s “Top 10% plan” that admits the top students from every high sc،ol, believing it will indirectly ،uce racial diversity. If a plaintiff can prove that race was a motivating factor for the change, does that make it uncons،utional? On one hand, if one really believes that discrimination a،nst white people and discrimination a،nst non-white people are cons،utionally indistinguishable, then such motivations seem cons،utionally suspects. On the other hand, few opponents of affirmative action have wished to take on ،ly neutral programs such as the Top 10% plan. Is there a principled argument distingui،ng race-motivated-but-،ly-neutral policies from affirmative action programs? There is likely to be more litigation on these questions, and soon. See Sonja B. Starr, The Magnet-Sc،ol Wars and the Future of Colorblindness, 76 Stan. L. Rev. (forthcoming 2024).
3. Is Justice Gorsuch right that it would have been easier to resolve these cases on statutory grounds? What is the best justification for not doing so?