The Last Twenty Five Years of Affirmative Action?
Johnson, Kevin R., Constitutional Commentary
In a pair of much-watched cases decided by the Supreme Court in 2003, affirmative action has been vindicated, if not declared alive and well. (1) The decisions, at least for a time, put to rest a controversy that raged over the 1990s. (2) Since the Court in 1978 placed its somewhat obtuse imprimatur on affirmative action in the famous case of Regents of the University of California v. Bakke, (3) race conscious affirmative action programs rose and later, at least in some jurisdictions, fell. (4) The latest pair of cases announced a truce of sorts in the affirmative action hostilities. In so doing, however, the Court has virtually guaranteed that the debate over affirmative action will rage again in the not-too-distant future. (5)
The Court's decisions in the two University of Michigan cases (Gratz v. Bollinger and Grutter v. Bollinger)--one involving undergraduate admissions, the other law school admissions--raise fascinating questions, many of which undoubtedly will be addressed in this symposium. This essay considers one issue. In Grutter, Justice O'Connor, writing for a majority of the Court, bluntly stated the Court's expectation that, although lawfully permissible today, affirmative action programs like the one employed by the elite University of Michigan law school should not be necessary in 25 years. (6)
The 25-year time limit announced by Justice O'Connor grabbed immediate attention. (7) At first blush, the Court's pronouncement seemed overly optimistic, if not woefully out of place in a judicial opinion. However, well-settled precedent requires time limits on affirmative action programs. Supreme Court decisions have repeatedly emphasized that affirmative action programs to remedy past discrimination are "temporarys" measures and should be eliminated when no longer necessary. (8) Indeed, in certain instances, the Court has expressly required that affirmative action programs have time limits. (9) A limit ensures periodic review of a race-conscious program and that it is maintained only if needed or, if warranted, modified to better achieve its goals.
Despite the caselaw supporting durational limits on affirmative action programs, the 25 years announced by the Court, which came out of the blue in the opinion in Grutter, can be criticized. The instinctive reaction of many affirmative action advocates was that two-and-a-half decades will not be long enough to eliminate the need for affirmative action at elite public universities, most of which currently lack many minority students despite having had affirmative action programs in place for decades. (10) Racism has existed for centuries in the United States and, although the most blatant forms of racial discrimination have been declared unlawful, racism's legacy has proven extremely difficult to remedy. Nor does the nation appear on the road to educational equity. A crisis exists in the public elementary and secondary schools, which are racially segregated with a disproportionate number of minority children attending poorly financed schools. (11) No cure-all appears on the horizon, much less one that seems as if it can be implemented in time to benefit this generation of public school students.
But there is a more fundamental flaw in the Court's expected 25-year sunset of affirmative action. The Supreme Court accepted the affirmative action plan of the University of Michigan law school as serving the compelling state interest of ensuring a diverse student body, not to remedy past discrimination. (12) Race conscious programs designed to achieve a "critical mass" of minority students, and a diverse student body, would not seem to demand any expiration date, although periodic review might make policy sense in order to ensure scrutiny of the results of affirmative action programs and to evaluate whether the consideration of race remains necessary to ensure a diverse student body. Remedial-based affirmative action, in contrast, would not be necessary after the impacts of an institution's discrimination had been remedied. …