The Possible Irrelevancy of Fisher: Intent and Affirmative Action

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.

Comments

[Doug Richmond]

Plaintiffs in race discrimination cases prove that they were victims of inetentional discimination with some regularity despite defendants' denial of intent to discriminate. How is this any different?

[Brando Simeo Starkey]

Not in equal protection cases at the Supreme Court level they don't. I'm assuming you're referring to civil rights statutes and burden shifting tests.

[Doug Richmond]

You're right, I am talking about race discrimination cases under federal anti-discrimination statutes. But the point is the same, isn't it? Defendants in such cases never admit to intentionally and unlawfully discriminating against their employees. The plaintiff, carrying a heavy burden, must prove discrimination.

[Anon]

What do you mean when you say universities could "still take race into account yet deny that they are actually doing so?" Are you suggesting that university officers would really perjure themselves? Even if you're talking about universities adopting facially neutral admissions policies that assist minorities, are you suggesting that university officers would state under oath that increasing minority enrollment was not an intended goal of the policy?

[Brando Simeo Starkey]

Doug -- Statutory and constitutional claims of intentional discrimination are analyzed differently by courts. Equal Protection claims of intentional discrimination are incredibly difficult to prove.

Anon -- Starting with Strauder v. West Virginia (1880) there is over 130 years of case law of state officers denying race played a role in some event where evidence suggests otherwise. I'm not saying admissions officers will perjure themselves. I'm saying if they claimed that their admissions policies were race neutral, based on the way these sorts of cases have been decided in the past, I don't see how a white claimant can prove intent.

[Leslie Garfield]

As Justice O'Connor said in Grutter, "context matters" and in the context of education, at least so far, the Court has found a compelling governmental interest in assuring viewpoint diversity in the classroom. If a school can show that its program is narrowly tailored to meet that compelling governmental interest (and I am not at all certain that UT can in the Fisher case) then the Court is likely to uphold the school's preference admissions policy.