THE UNIVERSITY OF GEORGIA AFFIRMATIVE ACTION RULING POSES A FUNDAMENTAL QUESTION:
What Is Binding Precedent?

Last week, in Johnson v. Board of Regents of Univ. of Georgia, a panel of the United States Court of Appeals for the Eleventh Circuit invalidated the University of Georgia's freshman admissions policy. The court held that the policy violates the Fourteenth Amendment's Equal Protection Clause. Under the policy, the University added a fixed numerical bonus to the admissions scores of non-white applicants.

Already the Johnson ruling is having ripple effects. Within days of the decision, the University of Florida announced that it would discontinue more than fifty minority scholarships. Further changes in university policies in Alabama, Florida, and Georgia (the states within the Eleventh Circuit) are likely to follow.

The Trend of Striking Down University Affirmative Action Programs

The Eleventh Circuit's ruling regarding race follows a growing trend in the federal courts of invalidating affirmative action programs at state universities on the ground that the programs constitute racial "reverse discrimination."

The programs that have recently been invalidated are hardly novel or radical. Rather, they are typical of affirmative action, as it has been practiced at public universities for the last quarter century — through "plus-factor" systems, as opposed to racial quotas.

"Plus" systems have been understood to be constitutionally acceptable ever since the Supreme Court's 1978 ruling in Regents of the University of California v. Bakke. That decision invalidated a quota system that reserved a fixed number of seats in a state medical school class for minority applicants. At the same time, however, a majority of the Justices in the Bakke case indicated that they would uphold affirmative action programs in which an applicant's minority status was only considered as a "plus." Now, however, lower federal courts are striking down such plus-factor programs.

For example, in 1996, in Hopwood v. Texas, the Fifth Circuit Court of Appeals invalidated an affirmative action program at the University of Texas Law School. And earlier this year, a federal district judge struck down the affirmative action program at the University of Michigan Law School. Almost simultaneously, however, a different federal district judge defied the trend and upheld a similar program in undergraduate admissions at the same University.

Both Michigan decisions are currently being appealed to the United States Court of Appeals for the Sixth Circuit. If the Sixth Circuit follows the lead of the Fifth and Eleventh Circuits, affirmative action programs previously considered unproblematic will have been declared unconstitutional in a substantial portion of the United States. On the other hand, if the Sixth Circuit bucks the trend, the United States Supreme Court is likely to review the decision and resolve the conflict among the lower courts.

Applying Strict Scrutiny In Affirmative Action Cases

The basis for the Eleventh Circuit's ruling in the Johnson case is a Supreme Court doctrine that requires courts to apply "strict scrutiny" to all government decisions in which race plays a role. In judicial parlance, applying strict scrutiny means that, in order to uphold a race-based government decision, a court must answer yes to two questions: First, does the challenged policy serve a "compelling" interest? Second, is the policy strictly necessary to achieving that interest?

How does strict scrutiny work in practice? Consider Bakke. Four Justices in that case said that the challenged admissions program violated the clear language of a federal civil rights statute. Another four Justices rejected this argument and said that race-based affirmative action is generally permissible to redress lingering effects of past discrimination. The controlling vote was cast by Justice Lewis Powell, who applied strict scrutiny.

Considering the first prong of the strict scrutiny test, Powell said yes: The challenged policy served a compelling interest — the interest in achieving a diverse student body. But when he moved to the second prong of the test, Justice Powell answered no: The rigid set-aside was not strictly necessary to achieve diversity in the school's student body. Justice Powell also noted with approval a Harvard College program that established a "plus," rather than a quota, system for applicants.

The Eleventh Circuit's Reasoning

In its ruling last week, the Eleventh Circuit skipped the first step of strict scrutiny — which would have asked it to decide if diversity is a compelling interest in college admissions. The court went directly to the second prong of strict scrutiny, and answered no: Adding a fixed numerical value to the admissions score of every non-white applicant is not a necessary or even a particularly effective means of furthering diversity, the court held.

Particularly troubling to the Eleventh Circuit was the fact that the University of Georgia added its racial "plus," before any admissions officer even read a given file. The University defended this approach by pointing to the large volume of applications it receives. The court found, however, that administrative convenience was an insufficient reason to consider race, without regard to individual circumstances.

Reasonable minds can disagree about the merits of the Eleventh Circuit's reasoning concerning the second prong of strict scrutiny. In this column, however, I will focus on the court's decision to avoid the first prong of strict scrutiny entirely. Why, one might ask, did the Eleventh Circuit skip over the question of whether diversity is a compelling interest?

One might think it was because the answer was so obvious it did not need to be stated: The Bakke case already decided that diversity is a compelling interest, answering yes to the first prong, so the court simply moved on to the second prong to see if it, too, was satisfied. But, in fact, the Eleventh Circuit said nothing of the sort. Instead, it stated that Bakke did not control the resolution of the first prong of the inquiry.

Bakke's Precedential Effect, or Lack Thereof

The court said that the question of whether achieving a diverse student body is a compelling interest is still an open one, despite Bakke. The court stated: "A majority of the Supreme Court has never agreed that student body diversity is, or may be, a compelling interest sufficient to justify a university's consideration of race in making admissions decisions."

Justice Powell's opinion in Bakke, the Court continued, spoke only for him — and it takes at least five Justices to cast a binding ruling. There were six separate opinions in Bakke, none of which garnered five votes. So all the Court as a whole did in Bakke was to hand down a result: It voided the University of California-Davis Medical School's affirmative action program. Thus, it is only that result that sets binding precedent.

The Fifth Circuit Court of Appeals had made a similar argument — and, indeed, had gone further — in its earlier decision in Hopwood. There, the court said that Supreme Court decisions since Bakke indicate that diversity is not a compelling interest. Thus, according to the Fifth Circuit, not only is Justice Powell's opinion in Bakke not binding precedent; it actually contradicts other binding precedent.

The Fifth Circuit probably went too far in saying that Court precedent has rejected the diversity justification; none of the precedents it cited involved university admissions. And the Eleventh Circuit may have overstated the point when it said that no other Justice in Bakke agreed with Justice Powell's views about diversity; although they did not say so explicitly, the four Justices who wanted to uphold the challenged admissions program very likely did agree on this point.

But putting these issues aside, what about the Eleventh Circuit's basic contention that what matters is what the Court actually ruled, not what five Justices might have said if they addressed the question? Is that view correct or not?

What is Precedent?

That is a difficult question, and its difficulty results from a deep ambiguity in our legal system. Our "law" consists not only of constitutional provisions, statutes, and regulations, but also the principles announced by courts. Some of our most basic legal norms — such as "one person, one vote" and even the basic power of the Supreme Court to declare acts of Congress unconstitutional — are spelled out only in judicial decisions.

How does one discern rules of law from decisions in concrete cases? In a case like Bakke, this is a puzzle because of the divisions among the Justices. But it is also a puzzle in cases in which the Court speaks with one voice. Is everything the Court says en route to deciding a case binding authority?

The conventional approach is to distinguish between the holding of a case — the actual question decided — and so-called dicta — statements made by the court in the course of the decision that are not essential to the reasoning. But that distinction ends up being quite subjective, in part because of what I will call the level-of-generality problem.

Imagine that Justice Powell had written on behalf of the entire Court in Bakke. We would still have difficulty discerning the holding. Would it be: (A) that a "plus" system, but not a quota system, is a permissible means of achieving a diverse student body in higher education; (B) more narrowly, that quotas in university admissions are impermissible; or (C) more narrowly still, that the University of California-Davis Medical School violated Allan Bakke's rights?

Each of these successively narrower propositions can be found in Justice Powell's opinion. Once we choose one of them — a subjective, value-laden choice — everything else becomes dicta.

The level-of-generality problem generally gets played out in the lower courts. The Supreme Court has the power to clarify, modify, and, in extreme cases, overrule its prior decisions. Thus, when the issue of race-based affirmative action in higher education eventually returns to the high court, the Justices will not be overly concerned with parsing the Bakke decision to discern precisely what propositions garnered five votes, and at what level of generality. Instead, they will focus on fashioning what they deem the correct constitutional rule.

But to say that the problem affects the lower courts alone is not to say it is insignificant. After all, they are the courts that decide nearly every litigated case in the country. The Supreme Court decides fewer than one hundred cases per year. That is why, as the lower courts' rulings in Johnson and Hopwood illustrate, how to characterize a Supreme Court decision is often as important as the decision itself.