Affirmative Action: The Case for Judicial Restraint

If you haven’t been living under a rock for the past couple of weeks, you probably know that the Supreme Court is reviewing a case that challenges the constitutionality of race-based affirmative action programs across the country. At the center of the controversy is Abigail Fisher, a white student who claims she was unfairly disadvantaged by the University of Texas’ race-conscious admissions program.
UT’s allegedly discriminatory scheme operates as follows: under the university’s “Top Ten Percent Plan” all Texas high school students who graduate in the top 10% (now 8%) of their respective class are automatically granted admissions. This purely mechanical process fills over 85% of the available slots for entering first-years. The remaining seats are then awarded through an individualized and holistic process that takes into account an applicant’s GPA, class rank, SAT-score, extra-curricular involvements, socioeconomic status, athletic ability, legacy status, personal essays, and, controversially, their race or ethnicity.
In 2008, Abigail Fisher found herself on the losing side of this scheme. She did not graduate in the top 10% of her class, and the university was not impressed with her other qualifications.
Mrs. Fisher, however, claims UT treated her unfairly because, as a white applicant, she was unjustly held to a higher bar than applicants of color. What is more, she goes the extra mile and claims that this unfair treatment violates her right to the equal protection of the law under the 14th Amendment.
In petitioning the Supreme Court with this claim, Abigail Fisher’s case takes on a complex dimension. Not only is she arguing that affirmative action is unjust, but she is also making the separate and distinct claim that the Supreme Court should remedy this perceived injustice. Regardless of the fairness of affirmative action programs, the Supreme Court is not in a position to grant Abigail Fisher the type of relief she seeks. The issue of affirmative action should be resolved democratically on a state-by-state basis rather than by judicial fiat.
To see why this is so, a quick constitutional law lesson is in order. The 14th Amendment was adopted after the Civil War to ensure the rights of newly freed blacks; since then, its protections have been broadly extended. The amendment’s two most prominent parts are the Due Process Clause and the Equal Protection Clause. The first clause bars state governments from violating fundamental liberties, and the second clause prevents states from invidiously discriminating against its citizens.
Because there is no fundamental right to go to the college of one’s choice, Ms. Fisher makes her case under the Equal Protection Clause, claiming that the State of Texas (UT is a public school) impermissibly discriminated against her on the basis of her race.
To the average layperson, this seems to be the end of it. The Constitution mandates equal treatment, affirmative action treats people differently on the basis of race, therefore it is unconstitutional, right? Not so fast.
Laws never truly treat people equally. In addition to discriminating on the basis of race, UT also discriminates against people with low GPAs, against people with low SAT scores, and against people with otherwise lackluster academic records. Most laws incorporate similar discriminatory schemes: the mentally retarded are treated differently from the general population, permanent residents are typically treated differently than citizens, and, in certain instances, men are treated differently than women.
Obviously, one might respond, there are times when treating people unequally is clearly legitimate, but there other instances when it is not. Treating someone differently for having a low SAT score is something completely distinct from treating someone differently because they are white.
While that is an entirely valid point, it does not follow from this that the Supreme Court should intervene to protect white people when they are being treated differently on the basis of their race. That claim may seem radical upon first glance, but the Court’s equal protection jurisprudence demonstrates why this is so.
Given that laws routinely engage in disparate treatment between groups of people, the Supreme Court has refused to intervene in all cases involving inequality claims. Instead, the Court has identified “suspect classifications,” which trigger  high levels of judicial scrutiny. Laws that burden a person on the basis of their race, their national origin, or their alienage must meet an extremely high bar of justification in order to pass constitutional muster. Laws that discriminate on the basis of gender must likewise meet a somewhat demanding, though less exacting, standard.
Aha! Well there you have it, one might now say. Race is generally an impermissible classification in any statutory scheme; therefore, affirmative action is unconstitutional. Well, again, not so fast.
When deciding whether a group classifies as “suspect” in the first place, the Court traditionally asks four questions: 1) has the group been historically subjected to invidious discrimination, 2) does the group have a defining characteristic that frequently prevents them from contributing to society, 3) does the group have an immutable defining characteristic that renders them a discreet and insular minority, and 4) is the group politically powerless.
This logic helps us understand why racial classifications normally receive intense judicial scrutiny. But it also underscores why white people are not entitled to the same level of judicial protection on Equal Protection grounds as minority races. Have white people faced a history of discrimination in this country? No. Are they a minority group? No. Are they politically powerless? No. For these reasons, laws burdening a person on the basis of their white race should be held to a lower judicial bar. The protections of the Equal Protection Clause are at their lowest ebb when the group in question is part of a numerically large and politically powerful majority.
In Federalist No. 10, James Madison explains why this must be so. “The Republican Principle”, he writes, can always secure the rights of a majority. That is, a majority’s numerical power intimately safeguards their rights. Majorities can easily pass laws and elect representatives congenial to their interests. The entire purpose behind the Constitution, Madison continues, is to prevent the oppression of minorities by majorities, or as he puts it, “to secure the public good, and private rights against the dangers of such a faction.” This observation helps explain why many commentators have labeled the protections of the Constitution as “Anti-Majoritarian.”
Consider that the Equal Protection clause shields African-Americans from the potentially oppressive power of a white majority; it protects women from the potentially despotic authority of men – who are overwhelmingly represented in institutions of power; and, according to some Federal Courts, it affords gay people protections against the oppressive power of a heterosexual majority. But what group must the Court shield white people from, themselves?
In the state of Texas, 58.7% of registered voters and 78% of state representatives are white. If white people in Texas feel unfairly treated by the affirmative action policy at UT, the democratic process is entirely at their disposal to change this perceived injustice. In California, for example, affirmative action in public schools was outlawed by constitutional amendment. The same could be done in Texas.
Since this has not happened, there must exist a de facto political consensus in Texas supporting UT’s affirmative action program. In a situation where the allegedly disadvantaged group has significant control of the democratic process, judges should not interject their own will for that of the people. If ever the charge of judicial activism should be heeded, surely it should be in this instance.
If Abigail Fisher feels the affirmative action program at UT treated her unfairly, she should make her case before the Legislature of Texas, not the Supreme Court of the United States.
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