Excerpted from: Yuvraj Joshi, Racial Indirection, 52 U.C. Davis Law Review 2495 (June 2019) (316 Footnotes) (Full Document)
Justice Kennedy's retirement spells the end of affirmative action as we know it. With Brett Kavanaugh on the Supreme Court, conservatives have secured the votes needed to prohibit race-sensitive admissions in public and private universities. With affirmative action's potential demise at hand, this Article demonstrates how racial indirection has allowed--and may continue to allow--efforts to desegregate America's universities.
Racial indirection describes practices that produce racially disproportionate results without the overt use of race. It includes practices that employ racial categories in subtle and partial ways as well as those that rely on ostensibly "neutral" factors and considerations to produce racial impact. Because such practices commonly serve to perpetuate rather than alleviate racial stratification, a significant body of literature analyzes the disproportionate harm that racially covert practices inflict on racial minorities. This Article focuses on a different version of racial indirection: affirmative action policies in higher education that are also racially covert but that inure to the benefit of racial minorities.
Affirmative action in higher education has a historic trajectory, from racially direct to indirect. By analyzing the Supreme Court's affirmative action cases, this Article explores how racial indirection emerged and how it functions, why decision-makers adopt or resist indirection, and which forms of indirection may be politically feasible and normatively desirable. Exploring the indirection that has shaped affirmative action until now sheds light on the indirection that might shape affirmative action in the future. Even if a stable conservative majority on the Supreme Court tries to dismantle admissions programs that explicitly take race into account, affirmative action would not disappear. It would, however, be driven further underground--employing ever-less conspicuous considerations of race.
Given that indirection may represent the future of affirmative action, the first aim of this Article is to develop a framework of racial indirection that is attentive to its many variations. Lawyers and legal scholars tend to associate practices that diminish the salience of race with racially regressive policies and ideologies. Yet, as the case of affirmative action reminds us, racial indirection can be a force of racial retrenchment as well as progress. Expanding the frame in this way better enables us to recognize and differentiate between interventions that diminish the salience of race. This effort is the object of Part I, which sketches a model of racial indirection. By looking across social spheres and practices, it demonstrates the diverse forms indirection can assume and the disparate ends it can serve. Furthermore, it shows how racial indirection is distinct from colorblindness and post-racialism, and how there are important features of affirmative action doctrine that these other accounts cannot explain.
The Article's second aim is to employ this framework to trace the rise of indirection in affirmative action. Affirmative action emerged in the 1960s as an attempt to undo the effects of past racial discrimination and move away from racial wrongdoing. Over time, as practices that sought to level the playing field for racial minorities were challenged by White applicants, the form of affirmative action shifted from programs explicitly based on race toward those in which reliance on race is less conspicuous, and the justificatory rhetoric for affirmative action moved away from racial-justice-based reasons toward the more universal rationale of diversity. Where once there were programs based entirely on race, today there are programs in which race is one of several factors or in which race does not explicitly factor.
Part II situates racial indirection in the Supreme Court's affirmative action decisions, demonstrating how specific features of affirmative action doctrine have required and incentivized racial indirection, and how these same features have helped sustain the constitutionality of affirmative action until now.
In analyzing affirmative action cases, the Article aims in Parts III and IV to examine the justifications for and critiques of racial indirection in affirmative action. By revisiting cases through the lens of racial indirection, we are better able to describe the concerns that have already shaped the development of affirmative action law. However, there are serious concerns presented by racial indirection that are hinted at but never fully developed in juridical accounts of affirmative action. By looking beyond case law to divergent disciplinary perspectives, ranging from political theory to critical race theory and social psychology, we can better appreciate the ways in which racial indirection implicates values like individual fairness, social cohesion, government transparency, principled reasoning, and racial justice.
The analysis in Parts III and IV does more than demonstrate the potential benefits and costs of adopting indirection in affirmative action; it also describes disagreements among Justices about the value of indirection that do not track along the usual ideological lines. Whereas centrist Justices embrace indirection in affirmative action decisions, conservative and progressive Justices are critical of indirection. Once we understand the reasons why Justices across the political spectrum adopt or resist racial indirection, we will be in a better position to think about the ways a differently constituted Court might treat affirmative action.
The Article's final aim is therefore to imagine the future of affirmative action. Harvard College's use of race in admissions faces an investigation by the Department of Justice and a lawsuit from anti-affirmative-action activist Edward Blum. In light of the shift from a Kennedy-centered Court to a Roberts-centered one and the movement of the Students for Fair Admissions v. Harvard litigation through lower courts, Part V reflects on the different paths that could lead to further indirection in affirmative action and the different forms that indirection could and should take.
This Article is the first to examine racial indirection as a systemic phenomenon and the first comprehensive account of racial indirection in affirmative action. Its attention to indirection is especially timely as we mark the fortieth anniversary of Justice Powell's opinion in Regents of the University of California v. Bakke, which first sanctioned the indirect reliance on race in admissions. Far more importantly, it is timely as we face new challenges to affirmative action and further Supreme Court appointments by an administration fueled by resentment and hostility toward racial minorities. This Article revisits affirmative action law at this critical juncture to consider whether racial indirection might have a progressive role to play during this period of racial retrenchment.
This Article has shown how racial indirection has allowed, and may continue to allow, efforts to desegregate America's universities. Indirection is not always invidious, as the case of affirmative action suggests, nor do all instances of indirection raise the same practical and normative concerns. Indirection might even be better than directness if indirection allows affirmative action programs to continue where directness would lead to their demise. As it becomes more difficult to defend even diversity-based programs at the Supreme Court, this Article has proposed indirection as one strategy for sustaining affirmative action.
The Article has highlighted the potential benefits and drawbacks of indirection in affirmative action. Yet, it has refrained from reaching conclusions about the ultimate value of indirection, precisely because indirection is an approach that manifests across a variety of contexts and varies significantly in the consequences it produces and the concerns it vindicates. Moving forward, several questions demand answers:
1. To what extent can indirection be a force of racial progress rather than retrenchment?
2. How will indirection in affirmative action interact with and impact other bodies of law?
3. Will a conservative Supreme Court distinguish benevolent from invidious forms of indirection, or will it treat them both as suspect? Or worse, will it prohibit indirection that benefits minorities while allowing indirection that harms them?
4. Whatever may be constitutionally allowed, is it wise to pursue and legitimate an approach that commonly serves to entrench racial stratification rather than to alleviate it?
We still have much to learn about the value of racial indirection.
Yuvraj Joshi. Doctoral Candidate and SSHRC Fellow, Yale Law School,