Discrimination By Proxy?: Arlington Heights Cases in the Post Students for Fair Admissions Era

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Emily Manning:  Hello, everyone, and welcome to this Federalist Society virtual event. My name is Emily Manning, and I’m an Associate Director of Practice Groups with The Federalist Society. Today we’re excited to host a discussion titled “Discrimination By Proxy?: Arlington Heights Cases, and the Post Students for Fair Admissions era.

 

We’re joined today by Professor Brian Fitzpatrick, Richard Kahlenberg, Professor Sonja Starr, Erin Wilcox, and our moderator today is Dan Morenoff. Dan is an Adjunct Fellow at the Manhattan Institute and the Executive Director at the American Civil Rights Project. Dan previously practiced law and served on the legislative staff of Senator Phil Graham of Texas. If you’d like to learn more about today’s speakers, their full bios can be viewed on our website, fedsoc.org.

 

After our speakers give their opening remarks, we will turn to you, the audience, for questions. If you have a question, please enter into the Q&A function at the bottom of your Zoom window, and we will do our best to answer as many as we can. Finally, I’ll note that, as always, all expressions of opinion today are those of our guest speakers, not The Federalist Society. With that, thank you for joining us today. And Dan, the floor is yours.

 

Dan Morenoff:  Thank you. I do want to start right out by thanking our panelists for coming. I know that I’m excited to hear what you all have to say, as well as aware that no one is here to listen to me. So I will keep my introduction very brief. Each of you, sequentially, I won’t take time right at the beginning. Let’s jump right into this.

 

Professor Brian Fitzpatrick joins us from Vanderbilt Law School. He was a one-time clerk for Judge O’Scannlain and Justice Scalia, who I believe was one of the first people to actually write about the issue that we’re discussing today in a piece he wrote back in as a law student with --

 

Prof. Brian T. Fitzpatrick:  Charles Fried.

 

Dan Morenoff:  Thank you. Discussing the 10% Rule at Texas decades ago. So I know you’ve been following this for quite a long while, and I’d love to hear what you want to tell us today.

 

Prof. Brian T. Fitzpatrick:  Thanks, Dan. Pleasure to be here. And you’re right. I have been thinking about and talking about this for almost 25 years now.

 

For a long time, this question of whether the government can use proxies for race kind of became irrelevant because we had the Supreme Court precedent in Grutter, which said it was okay for the government to use race directly. And so once that ruling came down, it gave everyone the green light to use racial preferences. And so the issue of can the government use proxies for race instead of racial preferences fell by the wayside. But it’s back now because of the Harvard and UNC Affirmative Action decisions. Now, we think that we can’t use race directly anymore. So the question of, “Can we use proxies for race?” is now back on the table.

 

One of the very first proxies that was used in modern times was the one that I wrote about and that Dan referenced, the Texas 10% Plan. And what happened there was the state of Texas -- University of Texas at Austin couldn’t use racial preferences because of -- the Fifth Circuit said that before Grutter was decided.

 

So they said, “Okay. Well, we’ll try to recreate the same racial composition we had with racial preferences by finding proxies for race. And the proxy that they used there was class rank because the schools in Texas, the high schools, were so segregated. If you just took the top people from each high school, you pretty much guaranteed you’d have the same racial composition you could get with racial preferences.

 

In Michigan, the universities had to do something similar because there was a voter referendum there after Grutter that banned racial preferences. Some of the universities in Michigan rolled out zip code preferences. They found the zip codes with the highest percentage of black residents, and they gave preferences to those zip codes.

 

So this is the question. Are governments, state universities, other government programs, are they able to use proxies for race now that they cannot use race directly? And my answer to that question is no. And my answer to that question is no because that’s what the Supreme Court has said over and over and over again. The Supreme Court started to say that during the Civil Rights era, when governments were getting crafty about trying to suppress the rights of blacks. And so they said, “Okay. We can’t discriminate against blacks directly. We’ll use proxies.”

 

And so the most famous Supreme Court case on this point is Hunter v. Underwood, which considered a Jim Crow-era law in Alabama, a constitutional provision in Alabama, that said you could not vote if you had committed a crime of moral turpitude. And there was evidence that the constitutional body in Alabama that adopted that provision adopted it because they knew that blacks had committed crimes of moral turpitude at 10 times the rate that whites had.

 

And so even though it was facially neutral, it just says you can’t vote if you commit a certain class of crimes. The Supreme Court said, “Because the purpose and the effect was to discriminate on the basis of race, we’re going to apply strict scrutiny just like we would had this been an explicit racial classification.” And they struck it down. They said it was unconstitutional to pick the crime because of its racial effects.

 

And they’ve said that several times since then in a variety of cases. They’ve said, “If the purpose and effect is discrimination, it gets strict scrutiny, just like explicit racial preference does.” And so I think those cases line up very well to call into question these efforts to gerrymander admissions criteria in universities and other government programs to achieve a certain racial composition. And so that’s where I come out on the question.

 

Now, we’re going to hear in a moment from Professor Starr, and she takes an opposite view of the Supreme Court’s precedence here. But I, if I may, I just have to respectfully disagree with what we’re about to hear from her. Her view is that there is a distinction in the case law between benign discrimination and invidious discrimination. She concedes that this distinction has been rejected with respect to explicit racial classifications. That was all the rage among liberal law professors in the ‘70s and ‘80s, that benign discrimination was okay. Discrimination to help certain racial groups was okay, but invidious was not. Discrimination to help the whites is not okay.

 

That was the theory that was offered to the Court many, many years ago, and the Court has rejected it every time. Every time it’s come up whether benign discrimination should be treated differently than invidious, they say, “No, no, no, no. Equal protection applies to everyone. Whether you’re trying to help whites or to help other groups, the same analysis applies.”

 

But Professor Starr says, “They’ve only said that with explicit racial classifications. They’ve never said that with regard to these proxy discrimination cases.” And I think she’s wrong there. She’s wrong there because we have a number of cases from the Supreme Court about gerrymandering of voting districts. The Supreme Court says in these cases that these are facially race-neutral laws because they classify voters based on geography, what street their house is on.

 

Nonetheless, the Supreme Court applies strict scrutiny in these cases because the purpose and effect is racial discrimination. And they do this even though the purpose is to help black voters, to help Latino voters get more political power. These are the most benign of the benign discriminatory purposes. And yet the Supreme Court says, “We’re still going to apply strict scrutiny because it doesn’t matter whose ox is getting gored when it comes to race. Strict scrutiny applies across the board.” And so I think that those cases really doom the efforts by universities to try to get around the Harvard Affirmative Action case by turning to proxies instead. Professor Starr has some other arguments. I’ll let her make her other arguments, and maybe we’ll have some time in the Q&A to respond to those.

 

But I just want to close on two final points before I turn it over to the rest of my panelists. One is, the reason why the Supreme Court has rejected the benign, invidious distinction is because there’s no such thing as “benign racial discrimination.” When it comes to university admissions and other government programs of limited resources, it’s a zero-sum game. If the government says, “We want more Latino students in our university,” that is mathematically equivalent to saying we want fewer Asian students in our university.

 

I do not think it’s okay for governments to go around and say, “We want fewer Asians here.” But that is mathematically equivalent to saying, “We want more Latinos or blacks here.” If one is wrong, the other should be wrong as well because there is no difference between the two statements. They are functionally equivalent.

 

The second point I’ll make is this. There are many, many race neutral -- facially race neutral programs that are very sound ideas that universities could adopt. They’re sound ideas in their own right. They do not have to be justified by their racial effects to be adopted. So, for example, I know one of our panelists here is very famous for supporting class-based preferences. Wonderful. I think it’s a fabulous idea. I think it’s a fabulous idea because it’d be great to have more poor people in our universities. I can have that position constitutionally without saying a word about race.

 

If the reason why you want class-based preferences is because you think there’s some good to have more poor people in our universities, you’re fine. But if the reason you want class-based preferences is because you want fewer Asians and more blacks and Latinos, that’s not fine. And I’m okay saying that’s not fine. It’s not fine to want things in order to reduce the number of Asians and increase the number of other groups. We should be adopting policies. Our government should be adopting policies without regard to which race is going to get what. Thank you.

 

Dan Morenoff:  Thank you, Professor. And since you’ve teed this up so well, we’ll turn next to Professor Sonja Starr. She comes to us from the University of Chicago. I believe that she is a one -- was a one-time clerk to Judge Garland, as well as to an international war crimes tribunal that I will not get the name of correct. And among other things, she has published a pair of recent articles directly on point with our topic today: one in Stanford -- in Stanford Law, and another maybe yesterday on SSRA specifically about application essays. Professor, please. You may be muted.

 

Prof. Sonja B. Starr:  There we go. Okay, thanks, Dan, and thanks to Emily and FedSoc for inviting me to be here. I hope this will be a friendly audience because I’m here to defend a conservative legal viewpoint. By that I mean not just conservative in the sense of judicial conservatism, of resisting aggressive judicial intervention into the decision making of public and private actors, but also in the sense of preserving long settled legal principles, principles that SFFA itself preserved, which is something I think you maybe wouldn’t deduce from Professor Fitzpatrick’s framing.

 

I want to defend those principles against a novel and radical legal theory that would, if accepted, upend legal protection -- or equal protection law, threaten thousands of existing policies, and engulf the courts in a litigation nightmare. My comments today have to be very brief, so if you want the developed versions, please do read those articles. I’m not going to focus these comments on the admissions essays issue but rather on fully race-neutral alternatives. By “admissions essays,” I mean those that take into account race-related experience. But if you want to talk about those issues, I’m happy to in discussion.

 

So for now, I want to make four key points. So first is that the Arlington Heights line of cases stands for the principle that facially neutral policies that are motivated by invidious racial purposes are subject to strict scrutiny. Arlington Heights itself uses the term “invidious” five times to describe the sorts of discriminatory purposes that it’s holding about discriminatory purposes applies to. This isn’t just made up by liberal law professors, right? The doctrine has never been applied by courts, other than in the now reversed Coalition for TJ district court opinion, to invalidate facially neutral policies with benign racial purposes, such as racial integration, diversity, or the reduction of racial disparities.

 

To be sure, there are some difficult edge cases in which reasonable people and courts may disagree as to what constitutes an invidious racial purpose and what constitutes a benign one. But in general, that distinction pervades both the Supreme Court’s jurisprudence and that of the lower courts, and courts have had little difficulty applying it. In general, it’s okay for political actors and private actors governed by Title VI to notice problems like racial disparities and racial segregation, and to try to craft policies to address them. And so long as those policies themselves don’t treat individuals differently based on race, they are not subject to strict scrutiny.

 

Second, a separate line of cases stands for the principle that racial classifications are always subject to strict scrutiny, that is, policies that either explicitly group people by race and that are administered in a way that treats individuals differently from other individuals based on their race. This line of anti-classification doctrine is grounded in the Supreme Court’s individualistic vision of the Equal Protection Clause and in concerns that are specific to racial classifications, such as racial stereotypes that they rely on. This is the line of cases to which SFFA belongs. And, of course, SFFA further strengthened the restriction on racial classifications by making strict scrutiny harder, or perhaps impossible, to overcome in affirmative action cases.

 

Within the racial classifications line, the Supreme Court has made clear that classifications get strict scrutiny even if their purposes are benign. That’s the colorblindness principle as it exists currently. All policies that treat individuals differently based on their race get strict scrutiny regardless of whose ox is being gored.

 

Third, these two lines of cases create distinct paths in district scrutiny. Strict scrutiny applies when policies classify by race or when policies have an invidious racial purpose. The anticlassification principle applies regardless of whether the classificatory policy has a benign or invidious purpose. And meanwhile, the Arlington Heights invidious purpose principle applies even when there’s no classifications. But courts have consistently resisted invitations to weave these two lines of case law together to produce the radical version of colorblindness that Professor Fitzpatrick is embracing and that Erin Wilcox and her colleagues have been pushing in the magnet school cases, which they have very skillfully litigated but which, fortunately, they have been consistently losing.

 

That’s not surprising because the Supreme Court has explicitly held, for example, in Justice Kennedy’s dispositive fifth vote opinion in parents involved or in his majority opinion in inclusive communities, that so long as policymakers use race-neutral tools, they are not constitutionally barred from seeking to reduce segregation and racial disparity and to promote racial diversity and inclusion.

 

The version of colorblindness that Erin and her colleagues are advocating in the magnet school cases would, in effect, treat all race-related purposes as invidious, no matter whether they are traditionally benign purposes like reducing segregation, and no matter whether the means they use are entirely race blind. It’s radical in part because it would invalidate countless school admissions policies that are facially neutral, in which admissions officers don’t even know the race of applicants—exactly the type of race neutral alternatives that the Supreme Court has actively pushed courts to consider for decades, that the challengers to affirmative action policies have argued that schools should pursue for decades.

 

It would certainly be a through-the-looking-glass moment if the Supreme Court were now to turn on a dime and say that, actually, there was never a constitutional difference between those race-neutral alternatives and affirmative action itself. But the radical implications actually extend far beyond education. The doors would fly open for litigation challenging every type of race-neutral government policy that has been passed to try to mitigate any race-related problem in society.

 

Look, policymakers at all levels and in both major political policies have consistently taken for granted that it’s okay to try to reduce housing and educational segregation, okay to try to reduce race gaps in employment, healthcare access, environmental exposure, criminal justice involvement, and the like, so long as the means they adopt don’t discriminate based on race. Any programs that get adopted have race-neutral criteria for participation.

 

But if the courts were to embrace the idea that trying to reduce racial disparity with race-blind tools is just as bad as trying to increase racial disparity with such tools, all of the countless policies that have been passed without understanding in mind would be subject to challenge. That is the legal earthquake that I alluded to earlier. Maybe for a couple of my co-panelists, that’s a feature and not a bug, but I think the rest of us should think twice.

 

A final key point is that SFFA did not disturb this settled doctrine. SFFA, of course, involves racial classifications, not race-neutral alternatives. But it also made clear that the Court does not consider the promotion of racial diversity in educational settings to be an unconstitutional objective—quite the contrary. Even though it deemed the university’s diversity interests not compelling in a way that could justify a racial classification, it also described them as “plainly worthy” and as “commendable,” which does not sound like they think it’s unconstitutional.

 

And moreover, five justices—at least five justices, arguably six—wrote or joined opinions in SFFA that explained explicitly deem race-neutral alternatives to affirmative action’s non-discriminatory. The three dissenters, of course, but also Justice Kavanaugh, using language very much like Justice Kennedy’s in Parents Involved, who wrote that school administrators remain free to use race-neutral alternatives to promote racial diversity. And Justice Thomas, who praised the very efforts of the University of California and the University of Michigan that Professor Fitzpatrick critiques today, Justices Thomas and Alito have in their Fisher opinions, praised the Texas 10% Plan as non-discriminatory.

 

Basically, even many of the justices in the SFFA majority are on the record supporting the position that I am advocating here, which is not surprising because those policies don’t implicate the normative reasons that the Court objects to race-based affirmative action. It is just not the case that socioeconomic and geographic affirmative action policies are just race proxies or race-based affirmative action in disguise. And it doesn’t become the case just because the policymakers that passed them were aware of the fact that they would also improve the racial diversity situation at the schools and liked that fact, right?

 

Socioeconomic status, for example, is a factor with independent moral significance, which is fairly loosely correlated with race. Taking it into account schools like TJ, for instance, do, still means that all poor kids are treated the same regardless of race. And no rich or middle class kid is gonna get that socioeconomic plus factor, even if they’re in an underrepresented racial group. That’s an important difference from the perspective of the racial stereotyping and racial balkanization concerns that have underlain the Supreme Court’s affirmative action jurisprudence. Those harms are just not present there.

 

Also, the harms in the racial gerrymandering cases, which are about balkanization of the electorate, literally dividing the electorate, segregating it based on race, are not there when the objectives of a policy is to integrate, to allow inclusion. Okay. That’s all I’ll say right now, but I’m really looking forward to continued discussion.

 

Dan Morenoff:  Thank you so much. With that, we’re going to turn to Richard Kahlenberg. He comes to us from the Progressive Policy Institute and, I believe, also lectures at George Washington. Sir?

 

Richard D. Kahlenberg:  Great. Thank you so much for having me. It’s great to be with all of you. I’m learning things already, so I think it’s going to be a great discussion.

 

So let me begin by acknowledging that I have a personal stake in this fight. Back in 1996, I wrote a book in support of class-based affirmative action, a copy of which I have subtly placed behind me on the Zoom screen. I hope you all can see it. More recently, I was an expert witness in Students for Fair admissions v. Harvard. I testified on behalf of the plaintiffs that racial diversity is important to have on campus, but it could be achieved using race-neutral needs, such as socioeconomic preferences or admissions based on geographic considerations, like the Texas Top 10% Plan.

 

So all this time, I should say I’m a political liberal, and I yet have found common ground with conservatives in talking about the importance of race-neutral strategies -- using race-neutral strategies rather than racial preferences. So, for me, the idea that race-neutral strategies for achieving diversity now themselves would be the target of litigation is deeply disturbing. It does feel very much, as the Fourth Circuit -- one of the Fourth Circuit judges noted in the Thomas Jefferson case, that this is a judicial bait and switch effort.

 

Now, the argument that race-neutral strategies aimed at producing racial diversity are kind of basically the same thing has been around for a while. The difference is that, originally, at least at the level of the Supreme Court, it was the judicial left, not the judicial right, that was making this argument. So if you go back to the 2013 Supreme Court decision in Fisher v. Texas I, it was Justice Ruth Bader Ginsburg who said that there really wasn’t much difference between the University of Texas’s use of race, racial preferences, and Governor George W. Bush’s Top 10% Plan to promote racial diversity. And I thought Ginsburg’s argument was wrong then, and I think the Pacific Legal Foundation’s argument is wrong today.

 

So while the motivation to produce the educational benefits of racial diversity does, in part, animate proponents of race-neutral strategies, including myself, I think there are five key differences between race-neutral alternatives and racial preferences, many of which the conservatives have long pointed to, including in the Fisher case.

 

The first and most obvious difference is that alternatives are not race based. So some white and Asian students benefit from a top 10% plan and from socioeconomic preferences. None benefit from racial preferences. The second distinction is that there’s no real racial stigma attached to beneficiaries of race-neutral strategies.

 

So Professor Glenn Loury, who’s a black economist at Brown University, has noted the damaging message that is associated with racial preferences. He says, “Knowing that I am being judged by standards that are different and less rigorous by virtue of the fact that my ancestors suffered some indignity, is itself undignified.” By contrast, there’s no stigma associated with the idea that when students are admitted because they achieved the very best grades in their high school or middle school, I don’t see an equivalence there.

 

Third difference is that race neutral strategies don’t feed racial animosity. So racial preferences divide people into camps. And there’s some experimental research finding that the policy actually increases white racism. By contrast, the political coalition behind the Texas Top 10% Plan brought together unusual bedfellows. There was a cross racial alliance in the legislature of legislators who represented working class white, working class black, and working class Hispanic constituencies—so quite the opposite of racial antagonism.

 

But the fourth difference is that race-neutral plans comport with fundamental notions of fairness because—we’ve been using the word “proxy” a lot in this discussion—because race is not being used as a proxy for disadvantage, and rather, these policies directly target those who are actually disadvantaged. So race preferences tend to benefit the most economically advantaged, underrepresented minority students.

 

So at Harvard, the litigation showed that 71 percent of the black and Hispanic and Native American students came from the richest socioeconomic one-fifth of the black, Hispanic, and Native American populations nationally. And it was Justice Alito who noticed this in Fisher Two. The top 10 percent plan tended to benefit working class black and Hispanic students, applicants who, in Alito’s view, are much more deserving of special consideration.

 

Finally, race-neutral strategies can increase geographic diversity on college campuses in a way that racial preferences never did. So high school students who had never had -- or high schools that who’d never had someone’s go to UT Austin under the racial preference policies, began to—with the top 10% plan—be able to be admitted. And the geographic diversity that the 10% plan provided an independent value whatever the racial makeup of the school.

 

So I’ll close by noting that in that Fisher One, when Justice Ginsburg dissented, suggesting that race preferences are basically the same as race-neutral alternatives, no other justice joined that opinion. The decision was 7-1. And my hope is that this position, equating two sets of policies, will remain a marginal view among the Supreme Court justices, even though it’s now being raised by the opposite end of the political spectrum.

 

And the final thing I’ll say to my conservative friends on the panel is there is going to be -- well, I shouldn’t say there’s going to be. There may be real cheating that goes on at universities. I spend most of my time on panels at places like Harvard, where everyone is to the left of me and talks about the ways in which the personal essay can be exploited in ways that I think is -- are completely unintended by the Supreme Court. So I’d urge my conservative friends to go after that rather than the authentication race-neutral strategies that the conservatives have long championed. Thank you.

 

Dan Morenoff:  Thank you, sir. And finally, hitting cleanup, we’re going to turn to Erin Wilcox of Pacific Legal, who, as has been mentioned, has taken somewhat of a leading role in their litigation, such as that in Coalition for TJ and Boston Latin—I don’t think that’s actually the name of the case, but it’ll stand for right now. Erin, please.

 

Erin Wilcox:  Thanks, Dan. PLF has been the boots on the ground and this fight against proxy discrimination in K-12 schools for. It’s almost been a decade now. And I think something that’s really important to point out in this conversation is that the proxy discrimination that Pacific Legal Foundation and others are challenging is intentional discrimination.

 

This isn’t a race-neutral policy that just happens to impact one race of students more than another. This is school board members in a room with a stated intent to reduce the number of some races of students who get into their school, looking at modeling, picking the policy that is going to do the best job at reducing the numbers of students of those races who actually get into their school. And we know this because they are saying it in emails; they are saying it in text messages. In Boston, they’re getting caught on hot mics in a school board meeting, making fun of Asian parents’ names who came to protest their policy. We’re seeing real animus and real intent there.

 

And these kinds of policies, this kind of intent, there would be racial discrimination if the stated goal of an admissions policy was to reduce the number of Asian kids at TJ or Boston Latin school. And so it’s racial discrimination if you’re doing that very same thing with that very same intent—just with a proxy.

 

And as we said, this is happening in Boston; this is happening in New York City; this is happening in Montgomery County, Maryland. Those are three places that PLF is litigating right now. We actually just filed a cert petition in the Boston case. We’ve discussed the Coalition for TJ case where the Supreme Court recently declined to review a Fourth Circuit opinion that upheld just such an intentionally discriminatory admissions plan that used middle school proxies to get to the racial balance that the school board wanted to achieve for TJ.

 

And in other places, some school districts are simply shutting down their selective schools because they don’t like or they don’t think they can achieve the racial balance that they want. And that’s happening in Seattle or in Chicago. It’s been attempted several times in San Francisco, at Lowell High School, and we think they’re gearing up for that again. So students are, in all these places, are being denied opportunities, some of them because of their skin color. And that is an equal protection violation whether you do it overtly or whether you do it through proxies.

 

So, as has been discussed already, I think it is early days for College Admissions, post Students for Fair Admissions. But as we at PLF have been saying for a while now, it is likely we’ll see similar maneuvering from some universities who are committed to the racial balancing that they were able to accomplish prior to Students for Fair Admissions.

 

And now, they are looking to the Fourth Circuit in the TJ decision. They’re looking to Boston in the First Circuit and looking at ways to circumvent Students for Fair Admissions to achieve what they want without running afoul—or at least without hopefully getting caught. And I think proxy discrimination is front and center in the legal world right now, and I think it’s definitely time for the Supreme Court to weigh in on this issue. Thanks, Dan.

 

Dan Morenoff:  Of course. And before we go into a question and answer in earnest, I feel like we should give y’all a chance to respond to each other. So let’s sneak draft this, so to speak. Richard, do you have any -- is there anything you’d like to respond to that Ms. Wilcox has told us?

 

Richard D. Kahlenberg:  Well, I’ll ask a question. I guess let’s take it to the higher education level, and let’s say that a university got rid of its legacy preferences, and it did so mostly because, doing so, it’s hard to justify morally. But they also said one of the nice things would be that it’s going to increase our racial diversity. And the modeling showed that the Asian student population would rise; the black student population would rise; the Hispanic student population would rise, but whites would be -- whites would see a decline. Is that the grounds on which a white plaintiff could bring a case of discrimination, given that race was part of the racial balance -- I shouldn’t say racial balance -- having a more integrated class was part of the motivation?

 

Erin Wilcox:  I think it would depend on the circumstances. I know that everyone's least favorite lawyer answer is, “It depends.” But I do think it depends on the reason. Now, obviously, legacy admission is not a protected class -- or legacy status, I’m sorry, is not a protected class. And I don’t think that’s anywhere near as clear an example as attempting to keep certain races out or to significantly drop the numbers of certain races of students. So I think that’s more of a borderline case. And it would really depend, again, on the intent of the people, the decision makers, and what their motivation was behind that decision.

 

Richard D. Kahlenberg:  But what if they modeled it and said, “This is a great thing that whites are going to go down 10 percentage points? That’s because we’ve got a huge over representation of whites. And there are tons of reasons to be against legacy preferences, but we’re particularly excited about the fact that it’s going to change the racial demographics, and every other group is going to go up, but whites are going to go down 10 percentage points.” Why isn’t that under your theory of basis for discrimination?

 

Erin Wilcox:  I think it very well could be, and I think a white student could bring that case if they wanted to.

 

Richard D. Kahlenberg:  Okay. Great. Thanks.

 

Prof. Sonja B. Starr:  Let me add that to put that in a way that sounds a little bit less anti-white and more just pro-diversity that many people have criticized legacy admissions as being essentially affirmative action for white people because the legacy, the fact that you have a legacy date to an era in which there were de jure forms of discrimination in place that made it far less likely that students of color could be equally represented. And so it essentially continues past discrimination to the present day and is a leg up for less qualified students who are overwhelmingly white.

 

That, I think, is a legitimate thing to point out and a legitimate reason to oppose legacy-based admissions. And I think that Erin’s answer and that the theory that they advocate would imply that it’s not, would imply that noticing the racial implications of legacy admissions and using that as part of the reason for getting rid of them would invalidate the choice to get rid of them and would make them subject to suit. I think that’s the wrong conclusion to draw and is not supported by the law.

 

Dan Morenoff:  I was going to turn to you next. Is there anything else you wanted to respond to or we’ve covered it and we should finish the snake draft?

 

Prof. Sonja B. Starr:  Oh, sorry for jumping the queue.

 

Dan Morenoff:  Oh, I appreciate it. It made the flow work much better. But I think that that means that the answer is yes. So, Professor Fitzpatrick, is there anything you’d like to respond to directly?

 

Prof. Brian T. Fitzpatrick:  Yeah, just a few points. So, first, on Richard’s hypothetical, the doctrine is as follows: if the “but for” purpose is the racial effect, it gets strict scrutiny.

 

So if you wouldn’t have dropped your legacy preference but for the fact that it reduces the number of white students and increases the number of other students, then it’s actionable. And so it depends on whether you would get rid of it anyway. If you would get rid of it anyway and this is a nice side effect, it’s not actionable. If you wouldn’t get rid of it but for this racial effect, it is actionable.

 

And that’s true again, even though you’re doing it to help these other groups and to hurt whites because this invidious, benign distinction that Professor Starr wishes to be the doctrine is simply not the doctrine. She barely mentioned all of the voting district cases that are all benign in her discussion, just as she barely mentions those cases in her hundred-page Stanford Law Review article. She says, “Those cases can be distinguished because they’re about segregation.” I find that actually offensive. To try to equate increasing the political power of blacks and Latinos with segregation, barring black students from the schoolhouse door, to try to equate those two things as invidious is really a stretch.

 

A question has been raised—it’s a good question—about the jurisprudence on the race-neutral alternatives. It is true that in these strict scrutiny cases, one element of narrow tailoring is race-neutral alternatives. And it’s a good question. How can that be squared with this doctrine that says if the purpose and effect is discriminatory? Then you can’t do it unless you can satisfy strict scrutiny. And, and the answer is this.

 

The answer is that when the Supreme Court says, “Did you look at race-neutral alternatives as one factor of narrow tailing?” what they’re saying is, “If you already have a compelling interest to do discrimination, we still prefer that you do it in a race-neutral way. We’re not absolving race-neutral alternatives from any constitutional scrutiny when we say that. We are just saying that if you can satisfy the compelling interest prong, we still might not let you discriminate on the basis of race directly if there’s a proxy that you can use instead.”

 

That is perfectly consistent with a doctrine that says you’re not allowed to do purpose and effect discrimination unless you can satisfy strict scrutiny. If you have a compelling interest, you’re fine under both my test and the race-neutral alternative test. All the race-neutral alternative is a preference for one form of discrimination over another if you have a compelling interest.

 

Professor Starr puts a lot of weight in her article on Justice Kennedy. She thinks Justice Kennedy wrote two Supreme Court holdings saying that people can go ahead and use proxies for race without having to comply with strict scrutiny. And I have to say, I think the analysis falls very, very flat. One of those Kennedy opinions is a concurring opinion in Parents Involved. It’s talking about something that wasn’t even before the Court. It’s dicta in a concurring opinion, and she thinks through a Supreme Court case called Marx, this dicta in a concurring opinion became a holding of the Court.

 

Her other case is called Inclusive Communities. It’s a statutory interpretation case, and she quotes a sentence from this case. At least that one was an opinion for the Court. She quotes a sentence in that case in her article, which she thinks is a holding on the constitutional question, even though it’s a statutory case. The sentence says, “Mere awareness of race in attempting to solve the problems facing inner cities does not doom that endeavor at the outset.” Mere awareness of race.

 

No one here is contending that awareness of race leads to strict scrutiny. It’s the purpose of race. As Professor Starr concedes in the first part of that Stanford Law Review article, “True purpose is required, not merely awareness, is enough to get strict scrutiny.” So that sentence that Justice Kennedy uttered that she thinks is so important is perfectly consistent with everything I have said. Mere awareness is not a problem.

 

As we just said with the legacy preference point, the fact that a school knows it’s going to have a racial effect is not actionable. It’s when the school does it because of the racial effect that is actionable. So that sentence is perfectly consistent with what I’ve said. I don’t think the implications of adhering to the Supreme Court’s precedence is all that radical.

 

What Professor Starr is advocating is this anti-racism agenda, that every disparate impact is racism and evil, and every disparate impact must be stamped out. Well, I just don’t agree with that. I don’t agree that we have a moral obligation to try to stamp out every disparate impact in our society. If Asians do better than the rest of us on a few things, I think that’s okay.

 

Prof. Sonja B. Starr:  All right. I think I’d like to respond, if that’s okay. So first of all, I encourage you to, A, read my articles, B, read the Parents Involved and Inclusive Communities opinions.

 

The Inclusive Community’s opinion, although it is a statutory interpretation case, about the -- about disparate impact under the Fair Housing Act, in order to conclude that there was disparate impact liability under the Fair Housing Act, the Court had to overcome a constitutional avoidance argument that was being argued against it. And the argument was essentially the ends colorblindness argument that I’m critiquing, right? The argument was that housing administrators could not take -- consider the adverse racial impacts of their policies and adjust their policies accordingly. And so it’s essential to the conclusion. It’s not dicta, and it’s not just about awareness. It cites the whole passage from Parents Involved that Kennedy himself had earlier wrote.

 

There’s further doctrinal support in all of the affirmative action cases that approve race-neutral alternatives to affirmative action that describe them as non-discriminatory and that includes SFFA describing racial diversity goals as commendable and the concurring opinions that I mentioned that amount to a majority of justices that explicitly embrace those alternatives.

 

My view is I don’t know what is to be gained by taking an argument that essentially says, “Take the Supreme Court at its word.” There is a colorblindness principle. The colorblindness principle doesn’t extend to every governmental consideration of race. And to say, “Oh, it’s some radical, woke, antiracist agenda being pursued.” You can read my article. It’s meant to convince, say, the chief justice. It’s not meant to be rallying the troops in a protest movement.

 

Let me comment briefly on the racial gerrymandering cases. Look, I don’t know. I mean, to be honest, I’m not an election law person, and I haven’t spent a lot of time thinking about the racial gerrymandering cases other than in their implications for this line of cases. So I don’t know for sure whether the Supreme Court characterized the motivations of those policies or rather the functioning of those. I don’t know that they suggested that they were badly motivated in the -- in a sense that the people who wanted to pass them were evil, right? But they described the way that they function.

 

What I’m describing is the way the Supreme Court itself characterized racial gerrymandering in those cases. It characterized it as balkanizing the electorate, as dividing the electorate up into blocks by race. And it characterized the process of racial gerrymandering as being essentially individual-level racial classification because what it said -- and again, factually, I don’t know if this is accurate. But it characterized the people who were drawing the electoral district lines as doing was looking block by block at the specific racial composition of each block and knowing exactly which families lived there and deciding to put them in one block or another based on their race and drawing crazy lines that were not naturally existent in some other way to try to swoop in all the black families into one district. And the Court was disturbed by the fact that it seemed to be essentially segregating the electorate.

 

Now, it’s true that it was segregating the electorate, in the Court’s view, with the objective of increasing minority representation. But the Court thought that the method essentially was balkanizing. It was stereotyping in the sense that it assumed that people from a particular race would vote in a particular way. And it’s awfully close to an individual-level racial classification—what was going on.

 

All of that is very different from, for example, socioeconomic affirmative action or the Texas 10% Plan, which might be adopted knowing and liking the fact that they are correlated loosely—these characteristics with race—but not at all having the same politically divisive, in the Court’s view, approach, and not that the Court attributes to racial gerrymandering.

 

I really think those racial gerrymandering cases are sui generis. They don’t tend to get applied in other cases about color blindness. And I just don’t think the principle is anywhere near as closely applicable as, for example, all of the Supreme Court’s comments in actual educational diversity cases in which it has consistently seemed to be approving of race-neutral alternatives.

 

Dan Morenoff:  Thank you. I’m going to jump back to Erin Wilcox for just a moment. You had mentioned that Seattle and Chicago are, to some extent, closing magnet schools. I’ll use that terminology. I don’t think you did. Is that constitutional?

 

Erin Wilcox:  That is a really great question and one that I think people are wrestling with right now because, on the one hand, you’re taking away a benefit for everyone equally, right? But on the other hand, you’re taking away that benefit because of racial reasons because you either can’t get the racial balance you want or because you’re unhappy with the racial balance of the school.

 

So I think that is actually going to be kind of one of the next frontiers of this proxy discrimination question as it evolves is we are certainly seeing a lot more school districts ending either programs or entire schools or phasing them out for what they’ve clearly said are reasons of equity, of reasons that we don’t like the racial balance of this school and what the constitutional implications are for that.

 

So I don’t have a definite answer for you. I think it’s a really interesting question. I’d be interested in what the panel thinks on this question. But I do think that is something that’s happening more and more over the last just two or three years, and I think we’re going to see that much more commonly in the next few years as well.

 

Dan Morenoff:  Let me push just a little bit further before we let anyone else respond there. I’m thinking of the cases when Virginia engaged in massive resistance by shutting down its entire public school system. And the Court said, “There’s no constitutional right to public schools. So if you’re shutting them all down, then you’re just shutting them all down might be a real bad decision. But that’s your decision to make.” Given those lines, how could it -- how could courts possibly find a constitutional obligation to maintain a magnet?

 

Erin Wilcox:  That’s the trick. And I honestly don’t have a great answer for you. Yeah, that’s a great question.

 

Dan Morenoff:  Fair enough.

 

Prof. Brian T. Fitzpatrick:  Can I jump in quickly?

 

Dan Morenoff:  Please.

 

Richard D. Kahlenberg:  Yeah. So I worked with the Chicago public schools on developing their socioeconomic plan to -- that was motivated, in part, to produce racial diversity. And I think it’d be a huge shame if they shut down those schools from a policy matter.

 

Let me respond quickly, if I can, to one thing that Brian said about the ways in which the Supreme Court has pushed race-neutral alternatives in the past. And the argument was, “Well, there was a compelling state interest, and therefore, you have to use race-neutral alternatives in order to get to that compelling state interest.”

 

But it seems to me, in this discussion, we -- there’s been a leap where even if the Supreme Court is no longer saying, “Racial -- the benefits of racial diversity are compelling,” that they then become flipped on a switch to become impermissible. And there is a middle ground where racial diversity maybe isn’t compelling. So therefore, you can’t use race in the admissions process, but neither is it impermissible, which is what Arlington Heights was about, an impermissible purpose.

 

And I think that’s definitely where the American public is. They want racial diversity. They don’t like racial preferences, and so they are seeking a middle ground. And for decades, I urged my liberal friends to recognize the broader public stake in this issue and say, “Well, why keep defending these racial preferences that are so deeply unpopular?”

 

And now, I would say the same thing to Erin and Brian. The American public wants racial diversity. The Supreme Court, as Sonja said, has said, “These are worthy objectives.” It is simply inaccurate and ahistorical, I think, to say George Wallace’s use of race-neutral policies to discriminate against black people is somehow similar to George Bush’s efforts to promote an integrated leadership class in this country using race-neutral alternatives. You can make these technical legal arguments, but you’ve lost the public, and I think, ultimately, won’t win in the Supreme Court, either.

 

Dan Morenoff:  Okay. I’ve been hearing in the comments a number of y’all have made something that sounds, at least to me, a lot like the Feeney case about the difference between an intended result and knowledge of a result that will inevitably result from a choice made for legitimate reasons. And it has me thinking the following.

 

The Arlington Heights case itself—it’s right in our event title—I read it as a test for intent. The Fourth Circuit, in its opinion and Coalition for TJ, did not, or at least did not exclusively. And I guess my question would be, where is disparate impact in this analysis?

 

Is disparate impact a kind of evidence of a bad intent, or is it an independent requirement for a policy that, in fact has—let’s just, for the sake of this hypothetical—a clearly invidious intent? If there were a clearly invidious intent, a legislature passes a policy expressly because it doesn’t like race X. And as it turns out, that policy doesn’t actually have any impact at all. Is that constitutional, or is that not? How do you square this?

 

Prof. Brian T. Fitzpatrick:  Dan, could I just tackle that for a second? And because I’ve been so mean to Professor Starr, I want to say something nice about her article, which I think this is where her article really is the strongest. And it’s a real doctrinal conundrum is what to do about the racial effect part of the purposes and effect test. And where TJ foundered and where thus far the Boston case is foundered is the lack of a disparate impact.

 

The number of students that end up in the schools is the same as the number of applicants, if you will. And that would also be true, I think, in all of these college admission hypotheticals that we’re talking about. Really, all the colleges want to do is replicate their applicant pool with the enrolled students.

 

And so I think Professor Starr says, “Listen. Even if you do all these things in college admissions, it’s not going to have a disparate impact because your enrollment numbers are going to be the same as the applicant numbers. And so there’s not -- they’re not going to be actionable under the purposes and effect test.” And I think it’s very tricky, to be honest with you. And I’m not a disparate impact expert, and so I don’t know how it’s been defined under Title VII. But at least at a very rudimentary level, if the applicant pool and the acceptance pool has the same percentages of each race, it’s very hard to understand how that’s a disparate impact.

 

Now, the argument—and maybe Erin can go into this further—but the argument in the TJ case, the Boston case, is you’ve changed a racial composition. So you have a disparate impact compared to a baseline of what the previous program was. But Professor Starr has very good arguments about that in her article where she says you basically just grandfathered in then the previous scheme when you say that’s the baseline against which you measure disparate impact. And I think this is a really thorny area.

 

Now, I’ll just close by saying this. In the voting rights cases, in the voting districts cases, the Supreme Court really abandons disparate impact as a necessary racial effect. They pretty much just say, “If you’re changing the racial composition of the district, that’s good enough without any equivalent of disparate impact, which there was a vote dilution theory. They don’t have to show that just moving the voters around to affect the racial composition is enough.”

 

So if you took those cases and ran with them, you may not need a disparate impact anymore. But that does run into other Supreme Court precedents that say, “Effect is required.” There was a case, I think it was Palmore v. Sidoti, where—I might have that wrong. I can’t remember the case name—where some municipalities shut down all of the swimming pools because they didn’t want to integrate. And they went to the Supreme Court, and the Supreme Court said, “It’s not actionable because there’s no disparate impact. No one can go to the swimming pools.” So this is a really thorny area of what kind of disparate impact, if any, is needed.

 

Dan Morenoff:  Anyone else? I can see that we have Emily back, so we may be running short on time, but I would love to hear anyone else’s thoughts.

 

Erin Wilcox:  Well, I have a slightly different thought. Obviously, that differs with our theory in the TJ and the Boston case. And I’ll just point out what the dissenting judge in the Fourth Circuit opinion in TJ said and what Justice Alito echoed in his dissent from the denial of cert in TJ was that the way those decisions stand now, school districts can discriminate against a race of a kid or because of their race, as much as they want. They can shout it from the rooftops that they’re doing it, as long as the number of kids of that race does not dip below the applicant pool's number. And that can’t be okay, right? You don’t get a, “You can discriminate as much as you want as long as you keep the numbers higher than the applicant pool’s number.”

 

So you also don’t get a free pass if you intend to discriminate against kids because of their race, and you just don’t happen to be very good at it, like what happened with New York City and their public schools a few years ago. So I think the intent matters a great deal and especially matters to the kids who were discriminated against up until the point where the school district had to stop because they were keeping their numbers above the applicant pool. So I do think that’s something to think about in these cases, that there very much still is impermissible racial discrimination happening there.

 

Prof. Sonja B. Starr:  Yeah. I guess I’d just add, if it were a true animus case -- and I just thoroughly disagree with the characterization of the magnet school policies as being anti-Asian, for example, as being motivated by a desire to keep a certain racial group out as opposed to what they obviously were, which was the attempt to create some form of critical mass for groups that were almost entirely excluded, namely black and Hispanic students.

 

And to me, those motivations are not equivalent. And if it were a true animus case and it were just that they were keeping down some undesired group to just above the level in the applicant pool, I would be troubled by that, actually.

 

I think, on the other hand, though, that I am quite troubled by the idea that any effort to reduce an existing racially disparate impact itself necessarily creates a racially disparate impact in the opposite direction. It places decisionmakers in this catch-22, where once they recognize an existing problem, they can’t try to solve it because it will necessarily mean that they’re intentionally creating a problem for some other group. And I think that’s the implication of the theory that PLF is advancing.

 

I actually think it’s a really difficult question. That’s why I would rather these cases be resolved on the grounds that the purpose that they’re advocating is just not an unconstitutional purpose. But I have some more thoughts in the articles about how to deal with the disparate impact question. But I can see that Emily wants us to stop talking.

 

Emily Manning:  All right. On behalf of the Federalist Society, thank you all for joining us for this great discussion today. Thank you also to our audience for joining us. We greatly appreciate your participation. Check out our website, fedsoc.org, or follow us on all major social media platforms at FedSoc to stay up to date with announcements and upcoming webinars. Thank you once more for tuning in, and we are adjourned.

 

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