New tactic on affirmative action could blunt Supreme Court rollback

Feb. 28, 2012 — The news that the Supreme Court is going to be hearing another affirmative action case has advocates of affirmative action deeply worried. The New York Times article that reported the Court’s decision to take the case quotes Columbia President Lee Bollinger as saying, “I think it’s ominous…It threatens to undo several decades of effort within higher education to build a more integrated and just and educationally enriched environment.”

A majority of the Court — even more conservative than when former Justice Sandra Day O’Connor provided the decisive vote in favor of time-limited affirmative action in the service of “educational diversity” — does appear poised to reject a quest for racial diversity as a legitimate basis for race-based affirmative action in higher education.

But there is an alternative premise that supporters of affirmative action could turn to that would be more difficult for the Supreme Court to disallow, and it would provide the basis for limited race-based affirmative action for a considerable period of time.

Proponents of affirmative action have long noted the contrast between intense resistance to race-based affirmative action and widespread public acceptance of “legacy admissions” (that is, preference to children and grandchildren of a college’s alumni), but they have not, I think, used the existence of the latter as a legal justification for the former.

Doing so holds considerable promise. Under a variety of statutes (although not as a matter of constitutional law, which has been construed to contain more narrow prohibitions against discrimination), it is not only illegal to discriminate intentionally, but also when a practice that is facially neutral as to race operates to the detriment of a particular racial group. The concept — referred to as “disparate impact” — also protects against “effects” discrimination on the basis of gender and other protected class status (classic examples in the employment context were minimum height and weight requirements that disproportionately eliminated women from firefighter and police officer positions).

Disparate impact analysis involves a three-step approach. First, is there a policy or practice that is neutral on its face but that nevertheless causes a material disadvantage of a protected class group? Legacy admissions is such a practice. The universe of alumni at most schools has been (and will remain for quite some time) disproportionately white as compared with the population of prospective students. The seats that are reserved for legacy candidates, therefore, operate to the disadvantage of potential minority enrollees because there are disproportionately few legacy seats for which minority candidates can compete.

The next stage in the inquiry is to determine whether the practice in question has a significant relationship to an important and legitimate institutional need (whether the practice is a “business necessity”). Universities would be able to make a strong case that the practice of legacy admissions serves important and legitimate institutional purposes, including the building of alumni loyalty and the raising of funds.

That would take the analysis to its third and ultimate stage: is there a less discriminatory alternative that would serve the legitimate university interests as well? Indeed there is: pairing legacy admissions with an offsetting race-based affirmative action program to eliminate the opportunity gap caused by the legacy programs.

It is true, as noted earlier, that disparate impact claims have not been available for decades to prove violations of the Constitution. But that doesn’t mean that universities wouldn’t have a powerful rationale to continue some race-based affirmative action in order to compensate for their current legacy admissions policies that, as a practical matter, keep some seats reserved for whites. And it doesn’t mean that, as a matter of non-constitutional law or regulation, civil rights advocates couldn’t challenge legacy admissions programs that were not paired with compensatory affirmative action programs.

The potential of invoking legacy admissions as a rationale for race-based affirmative action is enhanced by the fact that it would be hard for the Supreme Court to deny the well-established legal principle that an actor is deemed to intend the natural consequences of his actions. Knowing the demographics of their alumni pools, universities have always been aware that it is invariably the case that their actions have continued to exclude minority applicants disproportionately from contention for these legacy seats.

This argument, it must be acknowledged, will not have permanent viability: as the demographics of the nation changes, so too will the demographics of campuses. For now, though, it seems like a strategy more likely to survive than one based on a diversity rationale. It is a strategy worth honing.

One thing that such a strategy should not do is work at cross-purposes with affirmative action for students who come from economically disadvantaged backgrounds (something that applies to more white students in terms of raw numbers, but to more African-American and Latino students in terms of percentage of each group).

Socioeconomic affirmative action — which is on very solid legal ground and is not challenged in the new Supreme Court case — is a mechanism with the potential, if taken seriously, to transcend the limits of who gets served by higher education in America (an increasingly upper-middle-class and wealthy cohort). Thus, a “race and legacy” program would properly be an adjunct to, not a replacement for, affirmative action based on socioeconomic status.