Excerpted from: Mario L. Barnes, We Will Turn Back?: On Why Regents of the University of California v. Bakke Makes the Case for Adopting More Radically Race-conscious Admissions Policies, 52 U.C. Davis Law Review 2265 (June, 2019) (129 Footnotes) (Full Document)
The lyrics above are excerpted from religious-infused songs, which were of a kind that were central to student protest activities during the Civil Rights Movement. These songs connected the activists' struggles to those endured by earlier generations of the racially oppressed, and signaled the singular determination or persevering nature of the protesters. In particular, the above lyrics suggest that they understood themselves to be on a path from which they would not be moved--a path toward inevitable racial justice. Student protests were important catalysts to the social and political upheaval within the United States in the 1960s. During this period, a number of responsive antidiscrimination statutes--the Civil Rights Act of 1964, the Voting Rights Act of 1965, and Fair Housing Act of 1968 enacted. These laws, along with favorable rulings within a string of federal court cases, were the initial steps toward opening societal opportunities that had been largely unavailable to the descendants of slaves, post-slavery.
As we reflect on Regents of the University of California v. Bakke and its aftermath forty years later, it is important to recall this history. In so doing, we are reminded that the limited period during which race-conscious governmental benefits programs were available did not arise out of a spirit of societal beneficence. Rather, these programs arose both out of the largely peaceful civil disobedience of the Civil Rights Movement and some more violent, racial clashes, including those that followed the assassination of Dr. Martin Luther King, Jr. The various programs of redress that came to be known as affirmative action, then, were designed to appease the visceral frustrations of marginalized peoples and to commit the country, in earnest, to a more meaningful approach to equality. The lyrics also remind us that despite affirmative action in higher education once again being on the brink of elimination, perseverance or pressing forward against long odds has always been a hallmark of the struggle for racial equality.
It is arguable that the slow and creeping demise of affirmative action began with Justice Powell's opinion in Bakke. Justice Powell's determination that "the goal of achieving a diverse student body is sufficiently compelling to justify consideration of race in admissions decisions under some circumstances," could have laid the groundwork to broadly preserve race-conscious review processes. Considerations of race were, however, allowed as part of a holistic and highly-individualized assessment of diversity and its importance to the exercise of a University's First Amendment rights. This approach failed to consider affirmative action as a meaningful tool for remedying racial disadvantage. As such, Justice Powell's solution rested upon a historically flawed reading of why considering race is necessary within the United States. Though a court can decide it is not interested in disrupting disadvantages arising out of a system of racial classification, it should still be required to acknowledge the truth of that system. In Bakke, however, largely absent from Justice Powell's analysis of the assessments of race in admissions, were any references to undoing centuries of systemic advantage "locked in" through "transparent" white race privilege. Justice Powell chose instead to focus his attentions on presumptive entitlements, relative merits and deserts. Regrettably, the overreliance on these considerations has persisted within the Court's contemporary race jurisprudence.
At the time it was decided, it was not obvious that Justice Powell's concurring opinion in Bakke would so overwhelmingly shape future considerations of affirmative action within higher education institutions. The fact that no four judges fully joined Justice Powell's concurrence resulted in the opinion being dubious in terms of its precedential value. His simultaneous rejection of the UC Davis Medical School's Special Admissions program but approval of some race-conscious admissions processes seemingly pleased neither wing of the Court. Four Justices (Chief Justice Burger, and Justices Stevens, Stewart, and Rehnquist) voted with Justice Powell to strike down the set aside program at the UC Davis Medical School, with the Justices indicating that they believed it to be a violation of Title VI of the Civil Rights Act. Title VI prohibits discrimination in programs receiving federal funding. These four Justices, however, did not affirmatively adopt the position that race could never be a factor in admissions decisions. It was the California Supreme Court, which found the consideration of race to be unconstitutional.
Four other Justices (Brennan, White, Marshall and Blackmun) believed that the consideration of race in the Bakke case should have survived strict scrutiny. Hence, they concurred with Justice Powell in reversing the portion of the lower court opinion, which enjoined the state from using any consideration of race in admissions.
This split left Justice Powell's opinion as the controlling opinion from the case. The key insight from the case that has survived review in cases such as Grutter v. Bollinger and Fisher v. Texas, is that universities require the academic freedom to select a student body that will most contribute to a "robust exchange of ideas." Under Justice Powell's analysis, race or ethnicity, then, were among a number of factors universities could take into account "in achieving the educational diversity valued by the First Amendment." This interest in diversity was seen as meeting the Court's compelling interest standard, which is the required level of justification for a State to use a racial classification.
As several commentators have noted, in Fisher II, Justice Kennedy became the surprise vote in preserving the academic freedom for universities to consider race in achieving diversity in admissions. In an opinion on behalf of a 4-3 majority (Justice Kagan recused herself from the case), he concluded that the University of Texas's race- conscious admissions plan did not violate the 14th Amendment of the Constitution.
It was the first time during his tenure on the Court that Justice Kennedy actually found a race-conscious benefits program to be constitutional. One of the current cases challenging race-conscious admissions programs, Students for Fair Admissions, Inc. v. Harvard, once again invokes Title VI and accuses the school of unfairly limiting the number of Asian-American students it accepts. Should it reach the U.S. Supreme Court, however, it will be decided by a very different panel than the one that decided Fisher II. As Justice Scalia was critical of race-conscious benefits programs, a similar position being taken by his replacement, Justice Gorsuch, would not upset the number of Justices who oppose such policies. With Justice Kavanaugh replacing Justice Kennedy, however, prognosticators are again predicting the case may signal the death of race-conscious affirmative action in higher education admissions.
In light of the foregoing, I have two goals for this Essay.
First, in Part II, I want to highlight a number of factors within Justice Powell's opinion that have resulted in the continuing vulnerability of considering race in higher education admissions. To my mind, both the terribly bad facts in Bakke and Justice Powell's cramped conceptualization of remediable discrimination have contributed to his bargained solution--the diversity rationale--almost always seeming to be on the brink of collapse.
Second, in Part III, I suggest that the overriding lesson of Bakke is that attempting to create racial inclusion through an opaque "third way," one that is unhinged from the country's unreconciled racial past and unrelenting racial present, was likely doomed to be unsatisfying. As such, my main point of departure from Justice Powell's opinion is that whatever strategies arise in the wake of the dilution or collapse of the diversity rationale, should be both historically contextualized and stridently race-conscious. It is not lost on me that such an option may not be politically achievable. If, however, political feasibility was a requirement for seeking racial justice, it is very unlikely that there ever would have been a movement for civil rights in the United States. The lyrics of the songs that began this Essay, then, would have been about hopelessness rather than perseverance. Regrettably, like much of the work that seeks to reimagine equality, this Essay should be understood as privileging approaches and goals for greater inclusion that many racial justice advocates would consider to be right, even if they are not available right now.
In his path-breaking book Racism Without Racists, Duke Sociologist Eduardo Bonilla Silva explicates how it is that racism persists within the United States, even as most people describe themselves as harboring no race bias and not inclined to engage in discriminatory conduct. To my mind, the diversity rationale fueled the rise of an associated phenomena in higher education admissions--schools being able to consider race as a part of their process without ever acknowledging histories of racial oppression. In other words, what I have described as evaluative processes that have been "race conscious light" could also be thought of as processes that focus on race without racism. Given how race so thoroughly shapes the life experiences of so many in the United States, it would be shortsighted to suggest there are no benefits to this consideration. The diversity rationale, which structures the consideration of race under the guise of the value of considering multiple forms of difference more generally, is likely the most palatable form of assessment available. It seems odd, then, that the diversity rationale has been continually under attack since its adoption in Bakke and always seemingly one Court decision away from annihilation.
If the current challenges to affirmative action are to, in fact, be the undoing of the diversity rationale, then it is unhelpful to argue for replacing it with other approaches that privilege palatability and inclusion that are devoid of an appropriate historical contextualization of race and racism. As I suggested above, what I have argued for here is very unlikely to be embraced by federal courts. For my purposes, that likelihood is of little consequence. If we are to reset the public debate on justifications for affirmative action, then we should let accountability and audacity, not acceptability, be our guide. In this country, despite hopeful claims regarding equality, race matters; it always has. To deny otherwise is not only to negate a history of struggle, but also to refute that race helps to explain contemporary differences between the haves and have-nots.
If there is to be a disruption in law that seeks to curtail race-conscious reviews in university admissions processes, then arguments in favor of affirmative action should speak truth to power. The stronger form of race-conscious review endorsed here, would reference histories of racial exclusion, define affirmative action as its remedy, and force people to acknowledge that race benefits programs should not be solely gauged in terms of individual merits and deserts. It is unrealistic to expect people who have not benefited from intergenerational race privilege to have achievements that look just like those who have. It is also overly ambitious to expect those that have reaped the typically unacknowledged benefits of race privilege to forgo it without a challenge. Given how race confers privilege and disadvantage, it is problematic to structure admissions decisions around questions of whether a non-selected individual violated anyone's rights. It is equally problematic to only allow states to provide race-conscious benefits where there is smoking gun proof of the states' continuing to explicitly discriminate within that domain. We have known for some time that discrimination now operates in pervasive and largely systemic ways. Just because the Court is not ready to accept the truth of this account, does not mean we should forgo these arguments. However untenable this approach to affirmative action is from a legal perspective, it has significant value from the perspective of racial and social justice. Whatever the approach lacks in efficacy, then, I hope it makes up for in inspiration and indignation.
This Essay began by referencing freedom songs from the Civil Rights Movement. Though many laud the movement for its accomplishments, for much of it, there was little reason to believe that the struggle would result in the types of significant changes it achieved. The songs encouraged perseverance and the inevitability of justice. At this moment, we need these commitments once more. There is little information on what the next forms of racial benefits programs in education--if they exist at all-- will look like. If we look to what has transpired with race benefits programs in employment and contracting, the likely outcome is that racial consideration will also be severely restricted in assessing access to educational opportunity. Whatever the outcome and however difficult it renders access to higher education for underrepresented students of color, there is value in the struggle. We cannot build that struggle on a halfhearted approach to inclusion. On this moment of anniversary and of potential doctrinal shift, those of us committed to the project of inclusion must refrain from turning toward another ill-suited but palatable solution. We should move forward in a manner that is truthful about the history of racial subordination in this country. The next turn should be toward tactics that include the articulation of current racial struggles and demand atonement for past disenfranchisement. Despite obstacles, we should do so with urgency, once again fueled by the spirit of unseen but inevitable racial justice and the encouraging message found in the lyrics of another freedom song:
Know the one thing we did wrong
Stayed in the wilderness far too long
Know the first thing we did right
Was the day we started to fight
Keep your eye on the prize hold on, hold on
Keep Your Eyes on the Prize
Mario L. Barnes is the Tone Rembe Dean and Professor of Law at the University of Washington School of Law.