AFFIRMATIVE ACTION RETURNS TO THE COURTS: A Dilemma For The Bush Administration

Last week, two judicial decisions moved the issue of affirmative action to the forefront of American politics once again. First, the United States Supreme Court granted review in a government contracting case that has been to the high court twice before. Then, a federal district judge invalidated the University of Michigan Law School's policy of taking race into account in admissions.

Conservative activists would no doubt like to see the Bush Administration side with the white plaintiffs complaining of reverse discrimination in these cases. But the President may wish to tread carefully, for his own approach to improving primary and secondary education could be ruled unconstitutional if the arguments now being offered against affirmative action prevail.

The tortured history of the government contracting case is reminiscent of Dickens' Bleak House. In 1989, Adarand Constructors, Inc., submitted the lowest bid for a guardrail project on a Colorado highway. However, the contract was awarded to a competitor, because a federal statute provided that state agencies receiving federal highway funds had to set aside ten percent of their contracts for "disadvantaged business enterprises."

Such enterprises were defined as small businesses that were at least fifty-one percent owned and managed by "disadvantaged" individuals. Although anyone could qualify as "disadvantaged" based on a sufficient evidentiary showing, the law created a rebuttable presumption that women, African Americans, and other designated racial and ethnic minorities were disadvantaged.

Adarand brought suit in federal district court. It lost its case, and then lost its appeal, but in the Supreme Court, it prevailed. In Adarand I, 1995, the high court ruled, 5-4, that all racial classifications, whether they burden or benefit traditionally disadvantaged minorities, must be subject to what the Court calls "strict scrutiny." Under this exacting standard, a racial classification can only be sustained if it is necessary to accomplish some "compelling interest."

Furthermore, although the Court has not ruled on the matter definitively, individual Justices have suggested that strict scrutiny can only be satisfied if the racial classification is a necessary remedy for an adjudicated violation of the Constitution. Under this approach, taking race into account in desegregating southern schools in the 1950s and 1960s was permissible (since the schools' prior segregation was itself a constitutional violation of the Equal Protection Clause), but taking it into account for almost any other purpose is not.

Nonetheless, the Court's first decision in Adarand left proponents of affirmative action with a glimmer of hope. Justice O'Connor's opinion for the majority disavowed the claim (first made by law professor Gerald Gunther), that strict scrutiny is "strict in theory, but fatal in fact" — meaning that any statute that receives such scrutiny will inevitably be struck down. Accordingly, rather than invalidating the federal statute outright, the Court remanded the case to the lower courts for the application of strict scrutiny.

On remand, applying strict scrutiny, the district court reversed its original course and ruled in favor of Adarand. While the case was pending on appeal, Colorado amended its definition of disadvantaged business, so that Adarand qualified for the contracting set-aside regardless of the race of its owners and managers. The Court of Appeals thus dismissed the case as moot, reasoning that Adarand was in no worse position than minority applicants, and thus no longer had anything to complain about.

The Supreme Court disagreed with this analysis too. The Justices said that the Court of Appeals had ignored the principle that a defendant's voluntary cessation of a challenged course of conduct during litigation does not moot a case, unless there is no possibility that the defendant will resume that conduct later. Accordingly, Supreme Court reversed the mootness decision.

The case then went back to the Court of Appeals for the third time. Once again, that court ruled for the defendant, and against Adarand. The court described the evidence of persistent racial discrimination in the construction trade, and concluded that there is a compelling government interest in preventing federal practices from perpetuating that discrimination.

The Court of Appeals also found that the program was "narrowly tailored" because "mend-it-don't-end-it" regulations, adopted by the Clinton Administration, require recipients of federal funds to exhaust race-neutral means of addressing contracting discrimination before resorting to race-conscious means.

Last week, the Supreme Court decided to review the Adarand case yet again.

As I discussed in a column last November, the legal status of affirmative action in college and university admissions remains uncertain. The University of Michigan litigation dramatically illustrates the uncertainty.

In December 2000, federal district judge Patrick Duggan issued a decision upholding the use of race in Michigan's undergraduate admissions programs. But in March 2001, his colleague federal district judge Bernard Friedman issued a decision invalidating Michigan's law school's use of race in its admissions program.

The different results cannot be explained by differences in the two challenged admissions programs. If anything, the use of race in admissions by the law school was more narrowly circumscribed than its use by the undergraduate admissions office. Accordingly, if a judge were inclined to uphold one but not the other program, one would expect the opposite result: the law school's sustained and the college's struck down.

How then, to explain the different outcomes? Judges Duggan and Friedman read the ambiguous Supreme Court precedents differently. Judge Duggan thought that state universities have a compelling interest in ensuring a racially diverse student body; Judge Friedman thought they do not. Judge Duggan thought that an undergraduate admissions process that automatically added 20 points (on a 150-point scale) to the composite score of minority applicants was narrowly tailored to achieving the goal of diversity; Judge Friedman thought that giving minority applicants an unquantified boost, beyond LSAT scores and grades, was not narrowly tailored to achieving that goal.

Other courts around the country have reached similarly divergent results, and will continue to do so until the Supreme Court clarifies the law. Adarand III could provide clarification, but it also may not, because the diversity rationale for affirmative action in university admissions is not directly at issue there.

Already, conservatives both inside and outside the Administration are urging the President and the Solicitor General to "confess error" in Adarand — reversing the Clinton Administration's position. They do not want the Administration to defend the constitutionality of the set-aside program, or the regulations that implement it, as the previous administration did. Instead, they believe only race-neutral means should be used to encourage greater utilization of minority contractors.

The Administration has not yet decided what position to take in Adarand. For a number of reasons, the President may hesitate to embrace color-blindness wholeheartedly, as a constitutional requirement in every case.

As Governor of Texas, Bush supported a program that guaranteed admission to top state universities to any Texan graduating in the top ten percent of his or her high school class. That program has been somewhat successful at boosting minority college enrollment (though, as I explained in my earlier column, it also has very serious flaws, including a dependence on de facto segregation). Based on this success, one might expect President Bush to draw the more general inference that color-blind mechanisms should be available, and can succeed, in other contexts as well.

However, expanding the color-blind Texas program will pose some obstacles. For one thing, it does not readily translate into graduate school admissions or government contracting. And even if it did translate, it might not suffice: in the latest go-round in Adarand, the Tenth Circuit Court of Appeals specifically found that color-blind mechanisms for increasing minority contracting were not sufficient to combat ongoing discrimination.

Political calculations may also cause the President to eschew a viewpoint of all color-blindness, all the time. President Bush has tried to distance himself from those conservatives who have been insensitive to the interests of minorities; sensitivity on such issues is, more than anything else, what justifies the President in calling himself a "compassionate conservative."

With many minority voters — especially African-Americans — still distrustful of the President due to the election controversy, a public fight over affirmative action could spoil whatever chance he has of winning over a substantial portion of this constituency.

Finally, although the point has gone almost entirely unnoticed in public debate, President Bush's own proposal for education reform is not color-blind. Should he succeed in persuading the Supreme Court to require color-blindness in all matters, he could doom what he has called "the cornerstone of [his] Administration."

Under current law, states that receive federal funds for primary and secondary education of disadvantaged children must provide the Secretary of Education with periodic reports on the performance of pupils and schools. The law requires the data to be (to use the school reform movement term) "disaggregated" — that is, broken down by class, sex, national origin, and race. Disaggregation plays a central role in the Bush proposal, as well.

President Bush has proposed combining several different grant programs to give states greater flexibility, in exchange for their meeting rigorous performance standards — in particular, yearly testing. Schools that perform poorly would qualify for special assistance, but if the schools continue to perform poorly over a period of years, their students would be able to take their federal funding and enroll in a different, presumably better school. Crucially, whether a school is considered a success or a failure depends on how it compares with other schools with the same racial mix of students. Test scores at School A could be just as high as those at School B, but because of differences in the racial compositions of the schools' student bodies, A will be deemed a failure — and thus subject to a financial penalty — while B will be deemed a success.

Much of the discussion about President Bush's plan, and the Democratic alternative, has centered on whether parents of children attending failing public schools should be able to use federal funds to send their children to private as well as public schools (as the President and many Republicans favor) or only to alternative public schools (as the Democrats favor). While this debate over vouchers is important, it masks the substantial bipartisan consensus that parents should not have to send their children to poorly performing schools — and the surprising consensus that a school's success should be measured by reference to the racial makeup of its student body.

In other words, under current law, and under all the reform proposals now pending in Congress, including the President's, whether federal funds continue to flow to a particular school depends in substantial measure on the race of the students that attend that school.

Yet we know from the 1995 Supreme Court decision in Adarand I that all race-based government decisions, including race-based funding decisions, must be subject to strict scrutiny. Is disaggregation of school performance data along racial lines narrowly tailored to advance a compelling government interest, as strict scrutiny requires? That depends on whether the Court applies the test so strictly that, in this case, it proves fatal.

Certainly, disaggregation makes good policy sense. Because children arrive at school with different levels of preparation depending on the socio-economic background (including race) of their parents and communities, meaningful comparisons of schools must take such factors into account.

For example, even if sixty percent of fifth graders at school A read below grade level, school A may still be doing a good job. The relevant question to ask, educators agree, is how school A compares with schools that have a comparable mix of students.

Performance-based school reform aims ultimately to bring all schools up to the same high standards, but in the medium term, performance is measured by improvements relative to similarly situated schools, not relative to absolute standards.

Nonetheless, even though disaggregation is wise social policy, if the Supreme Court interprets strict scrutiny to require color-blindness except in cases of adjudicated constitutional violations, the Bush education reform program could be ruled invalid. And that is why the Administration may disappoint its conservative backers by urging the Court to take a moderate position on affirmative action in Adarand III and any sequel.