Abstract
Excerpted From: Nino C. Monea, Next on the Chopping Block: the Litigation Campaign Against Race-Conscious Policies Beyond Affirmative Action in University Admissions, 33 Boston University Public Interest Law Journal 1 (Winter, 2024) (644 Footnotes) (Full Document)
“Affirmative action” is normally associated with university admissions policies that began in the late 1960s, but the phrase has a different origin. In one telling, it can be traced back to 1961, when President John F. Kennedy issued an executive order directing contractors working with federal agencies to “take affirmative action” to ensure employees were treated fairly and “without regard to their race, creed, color, or national origin.” But in 1959, federal Judge John E. Miller declared that the Eighth Circuit had a mandate from the Supreme Court to take “affirmative action” to integrate Little Rock high schools. Even before that, a 1954 pamphlet by a Quaker organization--the American Friends Service Committee--said the first step toward integrating education was that “affirmative action” be taken by school administrators.
Whenever affirmative action started, the Supreme Court looks to have ended it in 2023. The twin cases of Students for Fair Admissions v. Harvard and Students for Fair Admissions v. University of North Carolina (collectively referred to as “SFFA”) essentially banned race-based admissions.
Naturally, ending the use of race in student admissions will be felt first in higher education. In one sense, the immediate impact may be limited. After all, three-fifths of schools do not use race in their admissions. And surely some families will get admissions consultants to help students navigate how to tailor an application to comply with the Supreme Court's ruling.
But the decision may well have a much larger impact outside of college admissions. To take one example, several lower courts have held that racial diversity among a police force is a compelling interest to justify affirmative action in officer selection. One court explicitly cited university admission cases to justify why a police force needed to be diverse. Relatedly, a California court upheld giving female and minority applicants a “plus” for prison guard job promotions and transfers, analogizing it to university admission case law.
The potential impact of SFFA goes far beyond public safety. Many have predicted that a decision banning the use of race in admissions could jeopardize “[d]ozens of government programs that address past and current discrimination, advance racial equity, and seek to close the racial wealth gap,” along with countless other things. But we need not rely on prediction alone, for there is already a wave of litigation that looks poised to take advantage of the recent Supreme Court ruling.
This Article seeks to document that litigation campaign, analyzing over five dozen recent and current lawsuits. These suits challenge nearly every possible manifestation of affirmative action. Sometimes they are brought by individuals, but they are frequently orchestrated by conservative or libertarian impact litigation firms. The Supreme Court ruling in SFFA v. Harvard gives new precedent undermining the value of diversity and mandating colorblindness. It will also likely embolden impact litigation firms to push the envelope by challenging more and more modest attempts to remedy past societal discrimination and signal to lower courts to take these claims seriously. This, in turn, will tee up a massive number of cases challenging race conscious policies, allowing the Supreme Court to cherry pick cert petitions the next time it wants to limit the use of race.
This Article proceeds in ten Parts. Part I gives an overview of affirmative action precedent, major anti-discrimination laws, and the cadre of conservative impact litigation firms bringing suits against race-conscious policies. Part II looks at commonly contested issues in these lawsuits: standing, preliminary injunctions, motions to dismiss, and summary judgment. Part III kicks off the examination of these anti-affirmative action lawsuits, starting with membership requirements for public and private bodies. Part IV covers Diversity, Equity, and Inclusion (DEI) lawsuits. Part V is about school policies like secondary school admission, teacher-student meetings, and scholarships. Part VI looks at employment lawsuits claiming reverse discrimination. Part VII goes over contracting set-asides for minority businesses. Part VIII addresses COVID-19 policies, including both race-based medical triage and financial aid programs. Part IX collects various miscellaneous lawsuits alleging improper use of race in public and private decision-making. Part X provides takeaways and a conclusion.
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There are a few lessons that can be drawn from all this. First, even minor attempts to consider race will draw lawsuits. Not only do multi-billion aid programs get targeted, so too do race-conscious policies for interviewing journalists on a single day, selecting student members for a law review, or having separate Zoom calls for parents of color. What this means is that government actors, and possibly even private businesses, need to be prepared for the chance of litigation any time they want to consider race. Doubtless, many smaller organizations will decide the hassle is not worth the risk and forego the use of race altogether.
Second, race-conscious policies under fire are not limited to deep blue cities. Republican Governor Larry Hogan of Maryland signed a law allowing the state to take race into account when granting licenses to legalized marijuana businesses. Montana tried to prioritize people of color to distribute vaccines, and Utah did the same for antiviral COVID-19 treatments. School districts from Massachusetts to Missouri have been sued for instruction on race. All of these sorts of programs are imperiled by a Supreme Court decision further minimizing the consideration of race.
Third, it is usually easier to challenge a race-conscious policy than it is to defend it. As one court described it, “When a statute makes express use of a suspect classification, a plaintiff challenging the statute meets their initial and ultimate burden simply by pointing out the classification.” At that point, the statute is presumed unconstitutional, and the government bears the burden of proving otherwise. Case in point, most of the complaints examined for this Article were only about a dozen pages long.
In response, the government may have to work orders of magnitude harder. To survive strict scrutiny, the government must assemble reams and reams of evidence showing that discrimination is pervasive and that the selected policy will be effective, and that race-neutral policies would not work. And the evidence must be high quality. The State of California cited numerous studies showing diverse companies performed better to justify a gender quota law for corporate boards, but the court balked in part because the studies did not prove causation. But as any social scientist knows, proving causation is next to impossible no matter how good an observational study--probably the only kind of study available to examine discrimination.
This brings us to the fourth point: the federal government and other elite, well-heeled institutions may be able to successfully defend race-conscious policies (to an extent), but states, localities, and smaller institutions may find it impossible. The Department of Transportation's contracting set-asides for Disadvantaged Business Enterprises, known as DBEs, is a rare example of a government program that explicitly favors certain races, yet has been upheld by the courts. It has a voluminous record in support. In the following years after the Supreme Court's Adarand decision in 1995, Congress assembled more than fifty documents and thirty hearings showing the persistence of discrimination in highway construction--enough for the Eighth Circuit to conclude it had a “strong basis in evidence” to support race-based measures in 2003. Or when Congress wanted to improve minority representation for radio and television broadcast licenses, it had the Congressional Research Service analyze data from 8,720 licensed stations to show a strong correlation between minority ownership and diverse programming--demonstrating the value of diverse ownership and helping to uphold the policy.
It is harder for the states. Granted, if the federal government has already established something as a compelling interest, states can assert the same compelling interest when carrying out the federal program, even if the prerequisite evidence was national in scope. But the localities still have to independently prove narrow tailoring to meet the compelling interest, and that means a national program “must be limited to those parts of the country where its race-based measures are demonstrably needed.”
This is not a given. The city of Columbus conducted dozens of interviews and questionnaires to help document past contracting discrimination to justify a set aside for minority-owned businesses, but a federal district court said this was insufficient. Dade County, Florida, had enough evidence of past discrimination to fill a four-day bench trial, but not enough to convince the court that affirmative action was justified. And of course, states frequently fell short in the lawsuits documented in this Article.
If states struggle that much, what prayer does a cash-strapped town or school have? If Asheville, North Carolina wants to create a scholarship for Black students, it will probably never be able to muster up hundreds of studies proving that Black students in Western North Carolina have faced undue hardships on account of race in the near past. The odds of success are low.
Fifth, because winning during the strict scrutiny phase is so difficult, if a challenge is rebuffed, it normally happens in the standing phase. Plaintiffs frequently had cases dismissed for making conclusory statements, suing before the policy had gone into effect, or suing without showing an injury beyond a political grievance. This indicates that impact litigation firms are often leaning ahead in the saddle.
Sixth and finally, there is no easy fix for policymakers. Justice Scalia once said that government could adopt facially neutral policies that were intentionally designed to further racial equality, so long as they are not explicitly based on race. But even facially neutral policies that are motivated by a desire for racial balancing can be struck down.
Moreover, conservatives and libertarians leading the fight appear to care little whether a policy is facially neutral. When asked during oral arguments in the UNC case about whether a school could give a preference to descendants of slaves as a race-neutral means to achieve equality, the attorney opposing affirmative action refused to say they could. When pressed, he said such a policy would look like a “pure proxy for race,” which he and his organization would presumably oppose. This is not to say that race-neutral policies designed to achieve a certain outcome will never survive judicial review, but they will probably draw lawsuits all the same.
America's racial inequities are the result of hundreds of years of prejudicial policies and attitudes. It will take a great deal of ingenuity to right the wrongs of the past. To navigate Supreme Court precedent and legions of lawsuits narrowing the menu of options, policymakers will have their work cut out for them to find fresh solutions.
Assistant Professor, Law Department, United States Military Academy at West Point. J.D., Harvard Law School; B.S. Eastern Michigan University.
