Affirmative Action on the Chopping Block?

The outsized (and largely unknown) power of conservative public interest law groups to bring fundamental change to important constitutional principles is on display this week in the Supreme Court.  Two cases scheduled for oral argument have been brought by the Project on Fair Representation, a group opposed to affirmative action in education and government contract awards, and the creation of what it calls racially gerrymandered voting districts. PFR and other similar groups have been punching above their weight for decades, a force in striking down labor laws, placing increased burdens on women seeking abortion (such as requiring abortion clinics to meet highly stringent health and safety standards and requiring doctors to have admitting  privileges at local hospitals), and enhancing corporations’ free speech rights, enabling the creation of Super PACs (a-la Citizens United).

PFR this week is seeking to remove any kind of race-based preferences at the University of Austin, Texas, in Fisher v. University of Texas at Austin. Any kind of affirmative action measure is required to be examined with the highest level of court review – “strict scrutiny” – PFR and Fisher (a white student who sought, and was denied, admission to UT) argue that UT’s admissions system violates Fisher’s (and others’) 14th amendment right to equal protection under law.   Technically, this case is about whether the Fifth Circuit (to whom the Supreme Court referred this case back to in 2013) actually applied strict scrutiny when it upheld UT’s race conscious admissions process.  But more broadly, it could present an opportunity for the Court to strike down affirmative action in university admissions in their entirety on the basis that they are racially discriminatory and therefore prohibited by the Constitution.

PFR this week is also seeking to bring down the way Texas state legislative voting districts are drawn in Evenwell v. Abbott, arguing that because they are drawn to encompass equal numbers of people, rather than equal numbers of voters, the districts violate the “one person, one vote” principle of the 14th Amendment’s Equal Protection clause. Put simply, the voters who brought the case argue that because they vote in senate districts with a high proportion of people who actually vote, their votes are worth less than other voters in districts with a smaller proportion of people who actually vote. As Adam Liptak explained in the New York Times, like in Texas, “most places count everybody. That amplifies the voting power of places with large numbers of residents who cannot vote – including children, immigrants who are here legally but are not citizens, unauthorized immigrants, and people disenfranchised after committing felonies.  Those places tend to be urban and to vote Democratic.”  A victory for PFR and Evenwell would favor Republicans, because voting power would be shifted from more highly populated urban areas (that tend to vote Democratic) to rural areas (that tend to vote Republican).  Importantly, this decision won’t have any effect on federal level congressional districts apportioned to each state because the U.S. Constitution sets out clearly that those districts are to be divided based on number of people (and not number of voters).

For both these cases, expect to see decisions along ideological lines.  As to affirmative action, Justice Thomas, himself a beneficiary of race-based admissions at Yale Law School, has been the court’s harshest critic of affirmative action.  Chief Justice John Roberts agrees, writing in 2007 that “the way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” The statement might have superficial allure, but it ignores the deep roots of institutional racism and discrimination that cannot be remedied by pretending it does not exist.  Justice Sonia Sotomayor, Like Justice Thomas, benefited from race-based admissions programs.  Unlike Thomas, she has spoken publicly and personally about the virtues of affirmative action, writing that “the way to stop discrimination on the basis of race is to speak openly and candidly on the subject of race, and to apply the Constitution with eyes open to the unfortunate effects of centuries of racial discrimination.”

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