Originalism is not merely a theory of how the Constitution should be preserved but also of how, precisely, it should change.
The Supreme Court has labored mightily since the fall term, likely revised and re-revised the court opinion in the Fisher v Texas University of Texas racial preferences admissions case, and let loose what at first appears to be a ridiculous mouse. The 7-1 opinion, written by Justice Kennedy, Justices Scalia and Thomas concurring, and Justice Ginsberg dissenting, remands the case to the Fifth Circuit, with the admonition to apply the “strict scrutiny” standard to University practices. This command could be construed, in Texas terms, as a Nolan Ryan brushback. But the batters are wily veterans and are not easily intimidated; after all, they are university professors and masters of their universe. Plaintiff Abigail Fisher didn’t ask for a reversal of the Grutter case, and the Court didn’t make this reversal.
Universities must now demonstrate, against strict scrutiny standards, how the “critical mass” of minorities obtained through egregious preference policies, contributes to the educational benefits of diversity. The vaunted higher education diversity industry will be working overtime to sing the praises of preference policies.
Those who oppose preferences should now take heart in countering pro-preference banalities. All the briefs, pro and con, can be found at the University of Texas website. (I signed on to this brief, by the diligent University of Maryland, Baltimore County, preferences scholar George Lanoue, who rallied a group of present and former civil rights officials.) Richard Sander and Stuart Taylor, cited by Justice Thomas, on the “mismatch theory,” which argues that minority students mismatched with more highly talented peers do more poorly in school or even drop out. The lower graduation rate from mismatch results in fewer minority professionals.
In remanding, the Court is permitting republicanism or self-govermnent, or at any rate, what passes for that in the universities, to work out what they think is the best policy—and then measure that against the requirements of constitutionalism. Perhaps this same logic will be shown in the gay marriage case.
In his spirited concurring opinion, Justice Thomas draws strong parallels between “benign” and putatively well-intended arguments for segregation or racial preference and concludes that the similarity in language and alleged intent damned both constitutionally. He compares the briefs submitted for the state in the segregation case of Sweatt v. Painter (1950) the University of Texas law school segregation case with the current UT case.
Yale law professor Jack Balkin protests that Justice Thomas deviates from his noted originalism in making this demand for colorblind constitutionalism. “The closest Justice Thomas comes is citing to Clark v. Board of Directors, an Iowa Supreme Court decision from June 1868. The problem is that Clark construes the Iowa state constitution (not the federal Constitution), and it appears to have been decided before the Fourteenth Amendment was officially ratified in July 1868.” Thus, “Instead of resting on the original meaning of the Fourteenth Amendment, Thomas rests on the original meaning of Brown v. Board of Education….”
But this gets Thomas wrong—he has always made the Declaration the source of his originalism. See his concurring opinion in Adarand. “There can be no doubt that the paternalism that appears to lie at the heart of this program is at war with the principle of inherent equality that underlies and infuses our Constitution. See Declaration of Independence (“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness”).“
This anticipates his reference to the famous John M. Harlan dissent in Plessy v. Fergsuon. “But in view of the Constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. Our Constitution is color-blind, and neither knows nor tolerates classes among citizens.” Of course the ultimate color-blind document that demands an end to a “ruling class” is the Declaration of Independence, even though drafted by a slaveholder. (See my brief discussion here).
And of course the Plessy briefs emphasized the Declaration of Independence. Moreover, the radical preferences, even before the “mismatch” argument, justify Thomas’s use of “badge of inferiority” as in Harlan’s “badge of slavery” to describe minority students in such programs, whether from the 10-percent programs—see below—or the preferential ones. Thus, contrary to Balkin’s claim, Thomas is relying, as Harlan did, on the 13th Amendment, not the 14th.
Harlan’s “cause of universal freedom” requires that we destroy such “badges of slavery” wherever they are found in law. The preference, however obtained or intended, is such a badge. Otherwise, the ex-slave’s freedom is not his own; he didn’t free himself and thus must call another master. Such a person cannot be a free and equal citizen of the United States. (Hence, Harlan’s dissent also cited the republican guarantee clause to deny the constitutionality of segregation.) This follows Thomas’s interest in the privileges or immunities clause, which refers to rights of citizens, not persons, in the gun rights case of McDonald v. Chicago. But should Thomas’s demand for color-blindness forbid any remedial policies?
In an op-ed published a few days before Fisher was handed down, Princeton social scientist Danielle Allen suggested expanding the 10-percent plan at the University of Texas. The University of Texas offers admissions to all Texas public high school students who are in the top 10% of their classes. (Whether this is fair to private schools, especially highly selective ones, is another topic.) Given the variations among school districts, considerable diversity of student representation would be guaranteed. Indeed, Allen argues that some weaker districts may retain and even attract brighter students who seek admission to the University.
She even cites a paper that contends that in Texas, “Among the subset of students with both motive and opportunity for strategic high school choice, as many as 25 percent enroll in a different high school to improve the chances of being in the top ten percent. Strategic students tend to choose the neighborhood high school in lieu of more competitive magnet schools.” This, she argues, would redound to the common interest. To the contrary, it might be another, more warped version of “teaching to the test”—living to the school. Rather than creating community, such a mentality would legitimate separate classes—and I don’t mean classrooms.
Let me propose as a complement to the 10-percent plan an affirmative action strategy that worked. In 1993-94 I taught at a small undergraduate unit within a behemoth state university. This College focused on an integrated social science education, with mostly small classes, and emphasized high teaching skills in the faculty. Though it functioned as a kind of honors college, its admissions standards were the same as the rest of the university (meaning they were open admissions). The College admitted students on a rolling basis, which meant that when all the class slots were filled, admissions stopped. Given the low entry standards, the only challenge getting in was applying early enough.
In this milieu the College’s typical black student, it struck me, was generally superior to his or her peers. (What many of the black students had in common is a Catholic high school education, in the inner city.) Aggressive recruiting explained their superiority. Affirmative action selection was, after all, the only measure of quality for purposes of admission.
Does this sort of affirmative action constitute a violation of color-blindness? In her dissent Justice Ginsburg scoffs that the unchallenged 10 percent plan was no different than any other “neutral” policy that resulted in higher minority numbers. Or is this in line with the legitimate public policy purpose of public universities to promote the communitarian purposes Danielle Allen seeks? Unfortunately, if jarring preferences of the sort Texas practiced are constitutional, then proposals such as my former College’s or Allen’s will be ignored.
Universities had better respect Justice Kennedy’s pitch, or prepare to see a majority opinion by Thomas, in the spirit of his concurrence here. After all, he moved four members of the Court to join his interpretation of the commerce clause, in the Obamacare decision. That would be the strikeout of racial preferences defenders of constitutionalism many would line up for days to see.