I’m starting some preliminary research on an article that I’d like to write about Fisher, the Texas affirmative action case. It seems as though many expect the Supreme Court to declare affirmative action unconstitutional. But would such a holding be inconsequential?
The Supreme Court currently requires that claimants prove intent to discriminate under the Equal Protection Clause, an exceedingly heavy burden. But if universities change their admissions policies, still take race into account yet deny that they are actually doing so, how could white claimants prove that they are the victims of intentional discrimination? Indeed, it seems as though the Court has painted itself into a corner here. By requiring that racial minorities prove the impossible—that the state intentionally discriminated against them on the basis of race—the Court has amassed some very unhelpful case law to potential white litigants should affirmative action ever be made unconstitutional.
Sure there will be some racial disparities in admissions data. But that shouldn’t mean anything. Just ask Warren McCleskey.
If the Supreme Court strikes down affirmative action, expect to see some folks running away from an intent standard but only in affirmative action cases. Statistics will quickly become dispositive. Disparate impact will suddenly become king. Hypocrisy will ensue.