The Last Twenty-Five Years of Affirmative Action?

22 Pages Posted: 17 Aug 2004

See all articles by Kevin R. Johnson

Kevin R. Johnson

University of California, Davis - School of Law

Abstract

In a pair of much-watched cases decided by the Supreme Court in 2003, affirmative action has been vindicated, if not declared alive and well. The decisions, at least for a time, put to rest a controversy that raged over the 1990s. Since the Court in 1978 placed its somewhat obtuse imprimatur on affirmative action in the famous case of Regents of the University of California v. Bakke, race-conscious affirmative action programs had risen and later, at least in some jurisdictions, fell. The latest pair of cases announced a truce of sorts in affirmative action hostilities. In so doing, however, the Court has virtually guaranteed that the debate over affirmative action will rage again in the not-too-distant future.

The Court's decisions in the two University of Michigan cases (Gratz v. Bollinger and Grutter v. Bollinger) - one involving undergraduate admissions, the other law school admissions - raise fascinating questions, many of which undoubtedly will be addressed in this symposium. This essay considers one issue. In Grutter, Justice O'Connor, writing for a majority of the Court, bluntly stated the Court's expectation that, although lawfully permissible today, affirmative action programs like the one employed by the elite University of Michigan law school should not be necessary in 25 years.

The 25-year time limit announced by Justice O'Connor grabbed immediate attention. At first blush, the Court's pronouncement seemed overly optimistic, if not woefully out of place in a judicial opinion. However, well-settled precedent requires time limits on affirmative action programs. Supreme Court decisions have repeatedly emphasized that affirmative action programs to remedy past discrimination are "temporary" measures and should be eliminated when no longer necessary. Indeed, in certain instances, the Court has expressly required that affirmative action programs have time limits. A limit ensures periodic review of a race-based program and that it is maintained only if needed or, if justified, modified to better achieve its goals.

Despite the case law supporting durational limits on affirmative action programs, the 25 years announced by the Court, which came out of the blue in the opinion in Grutter, can be criticized. The instinctive reaction of many affirmative action advocates was that two-and-a-half decades will not be long enough to eliminate the need for affirmative action at elite public universities, most of which currently lack many minority students despite having had affirmative action programs for decades. Racism has existed for centuries in the United States and, although the most blatant forms of racial discrimination have been declared unlawful, its legacy has proven extremely difficult to remedy. Nor does the nation appear on the road to educational equity. A crisis exists in the public elementary and secondary schools, which are racially segregated with a disproportionate number of minority children attending poorly financed schools. No cure-all appears on the horizon, much less one that appears as if it can be implemented in time to benefit this generation of public school students.

But there is a more fundamental flaw in the Court's expected 25-year sunset of affirmative action. The Supreme Court accepted the affirmative action plan of the University of Michigan law school as serving the compelling state interest of ensuring a diverse student body, not to remedy past discrimination. Race conscious programs designed to achieve a "critical mass" of minority students, and a diverse student body, would not seem to demand any expiration date, although periodic review might make policy sense in order to ensure scrutiny of the results of affirmative action programs and to evaluate whether the consideration of race remains necessary to ensure a diverse student body. Remedial-based affirmative action, in contrast, would not be necessary after the impacts of an institution's discrimination had been remedied. Put differently, universities could still want to strive for a racially diverse student body even if an institution's past discriminatory history had been fully addressed, or if the institution had never discriminated against racial minorities.

Moreover, even if one is sympathetic to the notion of time limits, an objection to the institutional legitimacy of the Court's 25-year pronouncement exists. The Court arguably should not be in the business of establishing the precise limits on the duration of an affirmative action program. Political decision-makers, not the courts, ordinarily establish time limits, which by their nature appear arbitrary, such as limitations periods on claims for relief and sunset provisions in laws. Such periods reflect a wide variety of policy judgments best made by legislatures and policy-makers.

The University of Michigan Law School, not the U.S. Supreme Court, arguably should have included a time for periodic review of its affirmative action programs - whether remedial or diversity-driven. Without a time limit to ensure regular review of the program, the argument goes, the Michigan Law School's affirmative action program was not "narrowly tailored" to further a compelling state interest, the test applied to racial classifications used by the state.

Along these lines, the argument could be made that the Supreme Court lacked the institutional competence to arbitrarily create the time limit that is the legitimate province of the political branches. In this vein, Justice O'Connor, writing for the majority in Grutter, offered precious little justification or reasoning for the 25-year limit, but simply declared it to be. Some might speculate that this statement, which is technically dicta, was in the opinion as part of a political bargain to build a majority on the Court that would leave intact the University of Michigan law school's affirmative action program. That tends to lessen, not increase, the legitimacy of the Court's pronouncement that affirmative action should end in 25 years.

This paper analyzes the Supreme Court's statement in Grutter about the expected end of affirmative action. Part I offers background on Grutter and Gratz, summarizes the decisions, and discusses the debate on the Court over the future of affirmative action. Part II analyzes the efficacy of the 25-year limit announced by Justice O'Connor and the Court's previous emphasis on the "temporary" nature of affirmative action.

Keywords: affrimative action programs

JEL Classification: K00

Suggested Citation

Johnson, Kevin R., The Last Twenty-Five Years of Affirmative Action?. Constitutional Commentary, Vol. 21, 2004. Available at SSRN: https://ssrn.com/abstract=577283

Kevin R. Johnson (Contact Author)

University of California, Davis - School of Law ( email )

Martin Luther King, Jr. Hall
400 Mrak Hall Drive
Davis, CA 95616-5201
United States
530 752 0243 (Phone)
530 752 7279 (Fax)

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