Abstract

Excerpted From: Olatunde C.A. Johnson, The Remedial Rationale after SFFA, 54 Seton Hall Law Review 1279 (2024) (127 Footnotes) (Full Document)

After the Supreme Court's ruling in Students for Fair Admissions, Inc. v. President & Fellows of Harvard College (SFFA) limiting the ability of higher education institutions to use race as a factor to advance diversity in the student body, at least one prominent commentator suggested that universities should now justify their affirmative action policies based not on diversity but on the need to remedy discrimination. Chief Justice John Roberts's majority opinion deems diversity--the rationale established in Regents of the University of California v. Bakke and affirmed in Grutter v. Bollinger “commendable” goal. But the effect of the Court's ruling is to either limit the rationale's practical utility going forward or to entirely overrule it. With this new uncertainty, it is understandable that racial justice advocates would turn to the remedial rationale to justify the constitutionality of race-conscious affirmative action. Relying on a remedial rationale not only reflects a pragmatic imperative in light of SFFA but also a foundational critique of the diversity rationale from those who support race-conscious affirmative action: the argument that the diversity rationale rests on the notion of “enhanc[ing] the educational experience of White students” while the “real reason we need affirmative action is that it is an important part of our society's ability to remedy the effects of past discrimination.” This critique of affirmative action has long-standing roots. After the ruling in Bakke, civil rights lawyers characterized the Court's decision as a “devastating loss” for its rejection of the idea that the “[Fourteenth] Amendment, primarily enacted to bring [B]lack [A]mericans to full and equal citizenship, allowed colleges and universities to take deliberate steps aimed at remedying the effects of centuries of slavery and segregation.” More than two decades later in a pre-Grutter essay examining the civil rights community's subsequent pragmatic embrace of the diversity rationale, Professor Charles Lawrence argued that race-conscious affirmative action should instead be justified by the “need to remedy past discrimination, address present discriminatory practices, and reexamine traditional notions of merit.”

Despite the clarity with which many commentators embrace remedy as the real imperative for affirmative action, it is unclear what it would mean to develop new arguments based on the remedial rationale. The Supreme Court's SFFA opinion adds very little to the doctrinal scope of the “remedial rationale,” doubling down on the parsimonious jurisprudence on the permissible scope of race-conscious remedies under the Fourteenth Amendment and admonishing the dissent for infusing remedial considerations into its understanding of the diversity rationale. Yet even with the constraints placed on remedy by the Supreme Court, much may rest on rebuilding a viable remedial rationale. The diversity rationale was never well-theorized or utilized beyond the elite higher education context. The actual stakes of affirmative action and the impact of SFFA will extend beyond higher education and threaten economic and racial integration efforts in elementary and secondary schools, programs to advance employment and economic equity, remedies for Black land loss and housing segregation, and environmental justice programs. The Court's narrow construction of the Fourteenth Amendment in SFFA risks the very idea of racial remedy. Particularly at risk are efforts to address racial inequality stemming from past and contemporary exclusionary policies and practices.

This Article considers how to strengthen the forgotten remedial rationale with special attention to the role of housing. Diversity has been the prevailing rationale for higher education affirmative action, but in most other domains, the need to redress past or contemporary discrimination or exclusion justifies affirmative action. Federal, state, and local governments have launched powerful and innovative reparative initiatives in recent years. This Article examines the doctrinal and democratic space that remains for sustaining these programs under a remedial rationale.

Part I maps the key strands of the Court's pre-SFFA jurisprudence on race-conscious remedies: the Court's efforts to limit the practical scope of remedy in the desegregation context, the Court's rejection of remedying racial “societal discrimination” as a rationale, and an opening--though unclear how wide--that the jurisprudence leaves for remedying the effects of contemporary discrimination. This remedial jurisprudence echoes themes in other areas of the Court's jurisprudence: a consistent prioritization of the potential harm to White people over the completion of a project of racial repair and the limiting of the time frame in which remedies should be in place. This jurisprudence also contests the very need for racial remedy and the idea that remedying racial inequity or caste is the special charge of the Fourteenth Amendment. This move to constrain remedy often comes from characterizing a sharp break between past harm and present reality and, more specifically, the role of state action in maintaining forms of inequity. The Court's refusal to engage with the history and present realities of residential segregation often features prominently in these conceptions.

Part II considers the remedial rationale in the SFFA case. In the majority opinion, the case leaves the doctrine of remedy where it finds it, emphasizing the narrow circumstances in which race-conscious action can be justified on remedial grounds and permitting race-conscious policies only for specific identified discrimination. Beyond that, the Court's majority rejects the efforts by the dissenters to articulate a theory of racial remedy as consistent with the Fourteenth Amendment's central purpose and Justice Jackson's use of racial history as a way to bolster the diversity rationale. In that way, the majority opinion ignores important connections between the diversity rationale's forward-looking, integration-oriented ambition and the imperative of remedying contemporary and past discrimination. Part III considers three examples of racial remedies and how they might be sustained despite the Court's jurisprudence. This Part considers reparations for housing exclusion, interventions to repair the harms of residential segregation, and use of place (residential segregation) as a plus factor to address the cumulative harms of segregation. All pose distinct doctrinal and political challenges and possibilities, but grouping them introduces what is potentially at risk when the Court constrains relief. Part IV lays out considerations going forward for both the doctrine and the democratic (nonjudicial) project of advancing interventions to remedy racial inequality.

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In the wake of the SFFA decision, is it useful for advocates seeking to preserve and expand race-conscious remedies in housing programs to advance a remedial rationale? This Article's answer is almost certainly, yes. While the “remedial rationale” as articulated in the Court's jurisprudence has been a finite and wanting concept, there are nevertheless opportunities for using openings in the caselaw to bolster programs facing equal protection challenges. The imperative for advocates, however, is to conscientiously document racial inequality--its impact, what maintains it, and the remedies needed to address it--despite the Court's doctrine. The current Court is unlikely to rethink its approach to equal protection. The hope is that this work will sustain racial remedies, invigorate coalitions and groups that better understand the continuing role of race, help design new strategies for addressing racial inequality, and build future courts that are receptive to the complex task of racial repair.

Ruth Bader Ginsburg '59 Professor of Law, Columbia Law School.