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Excerpted From: Rachel F. Moran, The Unbearable Emptiness of Formalism: Autonomy, Equality, and the Future of Affirmative Action, 100 North Carolina Law Review 785 (March, 2022) (307 Footnotes) (Full Document)


RachelFMoranIn the public imagination, the U.S. Supreme Court's decisions about affirmative action in higher education are all about racial equality. As a result, the debate naturally focuses on the propriety of the Court's commitment to colorblind government decision-making under the Fourteenth Amendment. The critiques come from two directions. For some, the Justices have strayed from their principles by permitting race to be one factor in a holistic admissions process based on a nebulous conception of diversity. For others, the Justices have fallen short because they restrict the use of affirmative action to combat ongoing racial subordination, instead relying on the far less convincing notion of promoting diversity. Whatever the ideological perspective, then, the emphasis is on the central importance of equal treatment, and diversity is either a thinly camouflaged or watered-down rationale.

Given these preoccupations, it should come as no surprise that commentators have largely neglected diversity's roots in a First Amendment concept of academic freedom. Even so, that liberty interest has kept race-based decision-making intact in colleges and universities, even as the Court struck down affirmative action in government employment, licensing, and contracting. For that reason alone, the principle of academic freedom deserves more attention than it has received. Recent jurisprudential developments reinforce the urgency of evaluating this liberty interest with care. The Justices have been steadily bolstering the institutional autonomy of other corporate actors, particularly with respect to religious liberties. Yet, there has been little consideration of whether this muscular approach to the First Amendment has implications for affirmative action in higher education. That inattention is especially unfortunate because the Free Exercise Clause is increasingly being used as a shield against enforcement of nondiscrimination mandates.

To remedy that neglect, this Article explores how affirmative action in higher education came to be framed as a dispute over institutional autonomy as well as equality, how the rise of formalism in judicial interpretation poses new challenges to that framework, and how the constitutionality of these programs can nonetheless be preserved. In Part I, I look at how the Court transformed a dispute over the role of race and equal protection in higher education into a case about academic freedom and the First Amendment. As I will show, the Court was fully cognizant that this jurisprudential move had implications for other areas of the law, most notably corporate free speech rights. In fact, the embrace of institutional autonomy was deliberate, permitting affirmative action programs to survive while bolstering liberty claims by other organizations. Ever since, the programs' legitimacy has turned on deference to academic administrators' freedom to enroll a diverse student body, even if they must consider race to do so. That pragmatic compromise between liberty and equality interests lies at the heart of the Court's affirmative action jurisprudence.

In Part II, I turn to the powerful challenges that the rise of formalism poses to this diversity framework. Constitutional law scholar Cass R. Sunstein has already predicted that the Court's formalist approach will sound the death knell for race-conscious admissions programs. He believes that because the Justices increasingly “emphasize[] the text, not the intentions” when evaluating nondiscrimination provisions, “affirmative action programs are doomed, because they plainly discriminate because of race.” In response to this gloomy forecast, I carefully analyze formalism's implications for institutional autonomy under the First Amendment and racial equality under the Fourteenth Amendment. As I demonstrate, in both doctrinal areas, the Court has had jurisprudential blind spots that arise when the Justices rely on narrow factual analogies and ignore the values that animate core constitutional protections. In some instances, the Court has used false equivalencies that treat categories as the same when they are in truth different. The most commonplace example is a refusal to distinguish between the racial subordination of non-Whites and reverse discrimination against Whites. In other cases, the Court has missed analogies by treating categories as different when they actually are the same. The most prominent instance is the Court's increasing skepticism of academic autonomy and growing deference to religious organizations, even when both play a critical part in advancing the expression and exchange of ideas.

In Part III, after exploring formalism's failings under the First and Fourteenth Amendments, I consider how scholars and advocates can use this analysis to preserve affirmative action in higher education. For example, the Court has been increasingly willing to challenge the pedagogical expertise of colleges and universities, a stance that contrasts markedly with the highly deferential treatment that religious organizations receive. It is essential to identify this as a missed analogy that diminishes claims to self-determination in higher education, particularly when it comes to race, diversity, and the learning process. At the same time, the danger to affirmative action is heightened because in cases bolstering the autonomy of religious organizations, the Court has made clear that racial discrimination is sui generis and highly invidious, triggering the most searching scrutiny. Indeed, racial discrimination is so pernicious that even religious liberty claims typically cannot overcome the need to eradicate it. Those decisions make it more likely that the consideration of race in higher education will be deemed a wrong that academic freedom, a comparatively weaker autonomy claim, cannot countermand. That result will be justified by a false equivalency, one that treats programs designed to level the playing field as fungible with actions designed to exclude racial minorities. If the failings of formalism are left unaddressed, this approach to judicial interpretation could deliver a double whammy: the missed analogy that weakens academic freedom will combine with the false equivalency of racial classifications to deal a fatal blow to affirmative action. However, this outcome is not inevitable. As I explain, the Court has long recognized distinctions between invidious uses of race to exclude students from a college program and pedagogical uses to diversify the student body. Those invidious uses of race resemble the discrimination that the Court has gone out of its way to condemn in religious liberty cases. So long as academic freedom remains a constitutionally protected interest, however, there is no reason to strike down affirmative action as a pedagogical strategy simply because the Court is revisiting the right of religious institutions to discriminate.

[. . .]

The unbearable emptiness of formalism resides in its incuriosity about context in cases in which both facts and values matter greatly. In First Amendment jurisprudence, this difficulty manifests itself in an indifference to the speaker's identity when the Court evaluates speech, association, and free exercise rights. That indifference has led to missed analogies that obscure the importance of First Amendment institutions, especially colleges and universities, in advancing robust discourse. A proper understanding of their unique role could enable the Court to better calibrate the appropriate level of deference due to pedagogical decision-making. The Justices have accorded some weight to academic freedom, but regard for this value has paled in comparison to the respect accorded to other forms of institutional autonomy, most notably the liberty interests of religious organizations. The missed analogy to other First Amendment institutions has weakened the case for affirmative action in admissions, which turns heavily on accepting academic judgments about the learning environment.

In Fourteenth Amendment cases, the limits of formalism mainly manifest themselves in false equivalencies. Because the Court emphasizes categorical labels rather than histories of discrimination and persistent inequities, it has no way to distinguish between benign and malign uses of race. In litigation over college and university admissions, this lack of context has prompted the Court to apply strict scrutiny to race-based admissions policies, even when they are designed to promote inclusion of underrepresented groups. That formalistic approach has a renewed potential to undo affirmative action because the Court recently has treated race-based distinctions as uniquely pernicious in religious liberty cases. Only by overcoming formalism's tendency to treat all forms of discrimination as equivalently insidious can advocates deflect this danger.

The perils of formalism for affirmative action jurisprudence have grown in recent years. The deference to decision-making in higher education seems increasingly crimped, and the characterization of race-based policies and practices as singularly dangerous has intensified. To secure the future of affirmative action, advocates must make the failures of formalism transparent by demonstrating the ongoing importance of colleges and universities in advancing an inclusive discourse that reflects the nation's diversity and advances its democratic ideals.

Distinguished Professor of Law, UC Irvine School of Law.

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