Excerpted from: Meera E. Deo, Affirmative Action Assumptions, 52 U.C. Davis Law Review. 2407 (June, 2019) (201 Footnotes) (Full Document)
The landmark case of Bakke v. UC Regents established not only the jurisprudential foundation for affirmative action litigation, but also the factual record of relevant evidence when evaluating race-conscious admissions policies in higher education. Yet, the Bakke Court relied on various fictions and assumptions in its determination that educational diversity alone was a compelling state interest sufficient to justify affirmative action in university admissions when utilized in a narrowly tailored fashion.
In the forty years since Bakke was decided, much has changed. Affirmative action jurisprudence has developed further--still reliant on strict scrutiny, but with clarifications based on additional Supreme Court cases that have expounded on the issue. Facts have also changed with the times, as increasing numbers of students of color in higher education offer new realities and contexts associated with their enrollment. Perhaps most importantly, social norms have also evolved. Now, more than ever, race is recognized as a fluid social construct rather than a fixed biological trait. Together, these changes raise a number of critical questions that must be explored and investigated to realize the realities of affirmative action today. By separating fact from fiction, and testing various assumptions, we can tailor appropriate admissions policies.
Courts should rely on data rather than assumptions to validate policy. The law should be grounded in fact, relying on reliable empirical evidence to support any assertions made. For forty years, however, the Supreme Court has depended primarily on assumptions to craft and develop national affirmative action jurisprudence--law that determines who has access to our institutions of higher education and the accompanying rewards and recognition. Today, we have the empirical data to test many of the hypotheses the Court relied on prematurely as fact; we must employ that data to determine whether the Court's determinations in Bakke and its aftermath were grounded in fact or fiction. Empirical research should also inform improved affirmative action standards for the future.
This Article begins with a detailed discussion of the facts, laws, and assumptions relied on by the Court when Bakke was decided. The specific university policy at play drew from numerous assumptions about race and admissions; the Court not only failed to challenge these notions, but also relied on additional unproven beliefs to justify its holding.
In Part II, the Article explores contemporary realities by reviewing the evolution of affirmative action jurisprudence through relevant case law as well as discussing current empirical data on students. Numerous studies conducted over the past forty years provide an opportunity to confirm or reject earlier assumptions, while new assumptions continue to cloud the field.
Part III explicitly raises new questions, assumptions, and areas for consideration directly relevant to educational diversity as a compelling state interest to tailor an affirmative action policy that fits contemporary realities. While some may seem to advance support for affirmative action, others may work against current conceptions; taken together, the theoretical concepts and empirical data presented provide necessary context for fully understanding affirmative action today so that policy-makers, admissions officers, and institutional leaders can ensure that affirmative action is both constitutional and effective.
Over the past forty years, with numerous Supreme Court cases addressing new challenges to various affirmative action policies, the legal doctrine has evolved. Contemporary understandings of the facts--how we conceptualize race-- have changed as well.
Justice Alito foreshadowed this division, arguing in his Fisher II Dissent that the university's policy "discriminates against Asian-American [prospective] students," since the "limited number of spaces" available automatically means that "providing a boost to African-Americans and Hispanics inevitably harms students who do not receive the same boost by decreasing their odds of admission." Yet it does not have to be a zero sum game in the way he envisioned. As Justice Blackmun observed in his Bakke opinion, "[I]n order to get beyond racism, we must first take account of race. There is no other way. And in order to treat some persons equally, we must treat them differently." Chief Justice Roberts responded to this claim in the elementary school selection case of Parents Involved by asserting, "The way to stop discrimination on the basis of race is to stop discriminating on the basis of race." Though after centuries of oppression against people of color, his proposal would simply maintain the status quo of ongoing White privilege. Who then should be treated differently in order for us to achieve collective equality?
The job of a university is to craft the best possible pool of students in the student body. For an affirmative action polity to be constitutional, every individual must compete for admission against every other applicant. No two people are exactly alike, though many applicants may share background characteristics regarding undergraduate major, state of residence, personality, and even race or ethnicity. Universities must include broader structural context, so that their policies accurately reflect contemporary realities.
This could signal an opportunity to redefine affirmative action altogether. For instance, Justice Alito has signaled an interest in moving away from a reliance on test scores and considering broader holistic review of applicants. In his Fisher II Dissent he noted that, "[The University of Texas] certainly has a compelling interest in admitting students who will achieve academic success, but it does not follow that it has a compelling interest in maximizing admittees' SAT scores." We should redefine merit to focus less on test scores and more on other measures of future success. Furthermore, affirmative action should be directly connected policy-wise to desegregation efforts, rather than simply relying on educational diversity. Today, many elementary and secondary schools are more segregated than they were before Brown. If we considered affirmative action as a desegregation effort, in addition to furthering educational diversity, additional benefits would accrue.
The recently submitted Social Scientists amicus brief in the Harvard affirmative action case reminds us, "The purpose of employing a whole-person review process like the one Harvard uses is to account for the diverse range of experiences--including the role race may have played in a person's experience-- among Americans of all races and backgrounds." Admissions officers should take note of this admonition. Affirmative action should tie together the various complications outlined above--and dozens more that reflect the complexities of race in contemporary America. Policies that include race as one factor in admission must be more directly tailored to current realities and include a truly holistic review to make the most sense of educational diversity.
Visiting Professor, UC Davis School of Law; Professor of Law, Thomas Jefferson School of Law; Director, Law School Survey of Student Engagement (("LSSSE)").