Background: Contrary to conservative views, my reading of the Constitution and admirable mid-1990s jurisprudence, see Adarand Constructors, Inc. v. Peña, 515 U.S. 200 (1995), the Supreme Court upheld "affirmative action" racial classifications in Grutter v. Bollinger, 539 U.S. 306 (2003). In approving race-weighted admissions at a state-run law school (Michigan), Justice O'Connor provided the crucial fifth vote and wrote the majority opinion, which (at the end of part III.B) portrayed the remedy as limited:
The requirement that all race-conscious admissions programs have a termination point "assure[s] all citizens that the deviation from the norm of equal treatment of all racial and ethnic groups is a temporary matter, a measure taken in the service of the goal of equality itself." Richmond v. J. A. Croson Co., 488 U. S., at 510 (plurality opinion); see also Nathanson & Bartnik, The Constitutionality of Preferential Treatment for Minority Applicants to Professional Schools, 58 Chicago Bar Rec. 282, 293 (May-June 1977) ("It would be a sad day indeed, were America to become a quota-ridden society, with each identifiable minority assigned proportional representation in every desirable walk of life. But that is not the rationale for programs of preferential treatment; the acid test of their justification will be their efficacy in eliminating the need for any racial or ethnic preferences at all").Never mind that setting sunset-dates for social policy is a job for the legislature, as Law prof Michael Dorf noted:
We take the Law School at its word that it would "like nothing better than to find a race-neutral admissions formula" and will terminate its race-conscious admissions program as soon as practicable. See Brief for Respondents Bollinger et al. 34; Bakke, supra, at 317-318 (opinion of Powell, J.) (presuming good faith of university officials in the absence of a showing to the contrary). It has been 25 years since Justice Powell first approved the use of race to further an interest in student body diversity in the context of public higher education. Since that time, the number of minority applicants with high grades and test scores has indeed increased. See Tr. of Oral Arg. 43. We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.
Legislatures occasionally include sunset provisions in the statutes they enact, but it is highly unusual for a court to do so. Moreover, the period of twenty-five years is completely arbitrary.Never mind that Michigan voters so disliked the result that they overwhelmingly overturned it within the state a few years later. Rather, my focus today is on the requirement that preferences expire when their asserted goal is achieved, i.e., when racial discrimination no longer is necessary to ensure that the particular government qualifications or benefits--be they school admissions, government contracting, or electoral district line-drawing--are equally taken advantage of by all. Never mind about differential submission numbers and similar non-race-based individual choices--often assumed to be evidence of bias.
Relation to Obama's position: Though Obama emits equivocal soundbites on racial preferences--observing that his daughters' college admission applications in the future "should probably be treated by any admissions officer as folks who are pretty advantaged"--he also consistently has supported collegiate affirmative action. Though he claims to favor affirmative action evolving away from race-based toward class-based criteria, Obama actively opposes state ballot measures, such as adopted in Michigan, that abolish racial preferences. I note that the wisdom of substituting class for race is amply illustrated in William Bowen and Derek Bok's pro-affirmative action book, The Shape of the River, as Reid Alan Cox observed:
In fact, these former presidents of Princeton University and Harvard University, respectively, found in their study that an overwhelming 86 percent of blacks at selective institutions hailed from middle or upper-middle class families. In other words, the beneficiaries of race-based affirmative action are not the children from inner-city Los Angeles, but instead are most likely to be the sons and daughters from suburban Santa Monica.Does that mean Obama would end racial preferences? I'm skeptical, in part because Democrats are so steeped in them, as shown by the draft 2008 party platform (page 47):
We support affirmative action, including in federal contracting and higher education, to make sure that those locked out of the doors of opportunity will be able to walk through those doors in the future. If we are to live up to our founding promise of equality for all, we must make sure that opportunity is open to all Americans.I don't profess to know what Obama would implement as President. Meaning Obama's policies alone might not alter affirmative action.
Relation to Obama himself: Obama has long been seen as the first "transracial" candidate. Neither Democrat primary results nor the Senator's race-obsessed 1995 autobiography (Obama, watching the 1969 moon landing: "How could America send men into space and still keep its black citizens in bondage?") support that, but never mind. The syllogism seems simple: If Barack can be elected President, does significant anti-black racial discrimination still exist in America? Wouldn't inaugurating Obama mean, as a Puffington Host blogger put it, that "anything is possible"? Did O'Connor's quarter century arrive 20 years early?
National Review's John Miller lists some effects of elevating Obama (from the September 1st issue; subscription-only):
The election of Barack Obama threatens to become the worst thing that ever happened to race-based affirmative action. So says liberal columnist Bonnie Erbe. “What could do more damage to the argument that African Americans deserve racial preferences than a majority of Americans voting to put an African American in the White House?” she asked in July. Her answer: “Little, from where I sit.”If that's so, wouldn't the election itself undermine the continued basis for so-called "reverse discrimination"? Not so fast, says Miller:
The case for racial preferences almost certainly would weaken during an Obama presidency. Sanctimonious liberals everywhere would face a squirm-inducing question: “If racism in America is so bad, then how come . . . ?” The smart ones will observe that most whites actually cast their votes for John McCain (as seems likely, based on current polls). Even so, Obama’s success would force the conversation about racial preferences to shift fundamentally.
To a certain extent, it already has. On the night of January 26, after Obama won South Carolina’s Democratic primary, supporters at a victory party broke into a chant: “Race doesn’t matter! Race doesn’t matter!” The mood was so jubilant that even a veteran race hustler like Rev. Jeremiah Wright would have been tempted to join in.
[T]he case for racial preferences and their ongoing reality are separate things. Obama may inspire all kinds of happy talk about national healing. (If you think the media are already treating him as a post-racial messiah, just wait until his inauguration day.) At the same time, his administration would strive to make sure that racial bean-counting shaped voting districts, college admissions, K–12 demographics, public contracting, and business hiring. . .This is because, whatever Obama's aspirations, his supporters will want him to govern as a typical left-liberal Democrat--and preserve preferences.
As a presidential candidate, Obama has tried to sound more conciliatory. When the topic of racial preferences comes up, he says he’s against quotas — politicians always say they’re against quotas — and suggests considering class-based preferences. “We have to think about affirmative action and craft it in such a way where some of our children who are advantaged aren’t getting more favorable treatment than a poor white kid who has struggled more,” he said in July. But make no mistake: Obama would not supplant racial preferences with socioeconomic ones. Instead, he might supplement them, further chipping away at the notion that merit ought to outweigh all else when awarding anything from public-university slots to federal highway contracts.
Conclusion: Ironically, although Obama at the top is the best evidence for ending affirmative action, I doubt we're approaching "The End of (Race-conscious) History." That won't stop me from posting pleas to halt antiquated preferences.
Twenty-five more years always was both unsupported and over-generous. I'd prefer a future conservative court overruling Grutter--after all, Alito now holds O'Connor's SCOTUS seat. But a five year race discrimination sell-by date also would be a win--and a bright spot among the gloom.
Were Obama elected President, anything is possible--even ending affirmative action. Not that I'd bet on it.