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Monday, February 25, 2008
At it again? Fitzpatrick on Post-Grutter Michigan
We've had some good discussions here and here in the past when we've linked to the work of my law school classmate Brian Fitzpatrick (Law, Vandy), so I thought I'd see if we can repeat our success now that Fitzie's stirring the pot again with his newest piece: Can Michigan Universities Use Proxies for Race after the Ban on Racial Preferences?
Here's the abstract:
In 2003, the Supreme Court of the United States held that public universities - and the University of Michigan in particular - had a compelling reason to use race as one of many factors in their admissions processes: to reap the educational benefits of a racially diverse student body. In 2006, in response to the Supreme Court's decision, the people of Michigan approved a ballot proposal - called the Michigan Civil Rights Initiative (MCRI) - that prohibits public universities in the state from discriminating or granting preferential treatment on the basis of race. Shortly after the MCRI was approved, a number of Michigan universities suggested that they were considering whether to use proxies for race in their admissions process in order to enroll racially diverse student bodies while circumventing the MCRI. These proxies include preferences for applicants who reside in heavily African American Detroit, applicants who are bilingual, and applicants who have lived on an Indian reservation.
This Essay considers whether it is legal for the universities to use proxies for race like these in their admissions processes. Although it seems clear that racial gerrymandering in university admissions will not run afoul of the U.S. Constitution - the universities can still invoke the compelling interest of the educational benefits of diversity - it is less clear whether the MCRI will permit the universities to use proxies for race. Like most antidiscrimination laws, the text of the MCRI does not say whether it prohibits only explicit racial classifications or whether it also prohibits racial gerrymandering. Nonetheless, this Essay argues that the MCRI should be interpreted like most of these other laws to prohibit both forms of racial discrimination. Although there are a few indications in the public debate over the MCRI that the voters of Michigan did not intend the proposal to prohibit racial gerrymandering, most of the debate assumed that the MCRI would be interpreted in the same way that Proposition 209 in California has been interpreted, and both commentators and courts have interpreted Proposition 209 to prohibit whatever the Equal Protection Clause would merely subject tostrict scrutiny. If the MCRI is interpreted in the same way, then it is likely that the universities will not be permitted to use proxies for race in their admissions process.
Update: Recent YLS grad Michael Helfand has just uploaded this paper on equal protection and the the diversity rationale, which examines some themes raised in Fitzpatrick's paper.
Posted by Dan Markel on February 25, 2008 at 12:16 AM in Article Spotlight, Constitutional thoughts | Permalink
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So what about the top ten percent plan in Texas? The plan says that, if you're in the top ten percent of your class, whatever high school you attend, you're automatically admitted to all the state universities in Texas. 70 percent of the class gets admitted in this fashion; the kids who fall below the top ten percent cut line have to fight for the 30 percent of seats that are left. It seems to me that there they're using a proxy for race - namely geography. Racial minorities aren't evenly distributed through the state of Texas, or any state for that matter; there are always going to be some geographical pockets that are overwhelmingly black or Hispanic. Those pockets, then, will, unless some ambitious busing scheme is going on, have overwhelmingly black or Hispanic schools. Taking the top ten percent from each school, therefore, is going to mean accepting roughly proportionate numbers of blacks and Hispanics. It's no different than giving preference to kids who live in Detroit, except it sounds more kosher, because it's the top ten percent. Of course, the top ten percent at many of these schools will often have dramatically lower SAT scores than kids in other schools just outside of the top ten percent. Moreover, there's absolutely no doubt that the legislative intent was to get racial minorities into the University of Texas. Disparate effects intended for by the legislature, with very little signs of narrow tailoring - I'm surprised this hasn't been successfully challenged in court yet.
Posted by: Asher | Feb 25, 2008 10:56:20 PM
Fitzpatrick has also written on the Texas 10% plan. See Strict Scrutiny of Facially Race-Neutral State Action and the Texas Ten Percent Plan, 53 Baylor L. Rev. 289 (2001).
I think this is going to be the new battle line on Equal Protection and race. I have (plug alert) written on why I think that the principle of colorblindness is best limited to individual adjudications, rather than broader race-conscious policies (such as what Fitzpatrick calls "proxies" for race). Notably, in this article, a lawyer from the Pacific Legal Foundation is quoted seemingly threatening renewed legal action against Louisville after they have adopted a program that avoids assigning pupils based on their individual racial classification, but nonetheless seeks racial diversity. Justice Kennedy clearly saw this argument coming, and wrote separately to try to foreclose the argument.
The problem with this kind of radical colorblindness is that it ultimately swallows all race-conscious law. Surely the Civil Rights Act was passed, at least in part, because of its effects on persons of certain races, even if it is applied with formal race-neutrality (i.e., that members of any race can sue for race discrimination). Isn't giving a cause of action to those who have suffered injury on account of their race just a "proxy" for giving it to African Americans? Eventually, like the ouroboros, reactionary colorblindness swallows itself: it's impossible to justify the Fourteenth Amendment--or, indeed, the very principle of colorblindness that conservatives read into it--without violating this colorblind imperative. Can we imagine that the Amendment was ratified "merely 'in spite of,' its . . . effects upon" freed slaves (to use the Feeney formulation)? Even today, we sometimes see Thomas justify colorblindness by saying that it will be better for minorities: it won't stigmatize them, etc. David Strauss spells this point out better and more fully in The Myth of Colorblindness, 1986 Sup. Ct. Rev. 99.
A strong version of Fitzpatrick's argument would go as follows: the voters of Michigan wanted, in effect, to ratify the existing racial order, and to disable government from taking any action which might, except purely unintentionally, change it. Of all the problems of society, the one the government must not address is that of racial disparity. It could consider, say, a job training program, but the moment that someone points out that it might, as a happy benefit, help those who still suffer from the legacy of institutional racism, it has to go off the table, because it might have been passed, at least in part, "because of" this result. Is that what Fitzpatrick means to say? And why is race, of all ways of classifying human beings, subject to this special treatment?
Posted by: Andrew Carlon | Feb 26, 2008 2:02:39 AM
Yeah, I liked his article on the Texas 10% plan. About your reading of Fitzpatrick, I strongly disagree. Colorblindness doesn't have to swallow all remedial laws. There are good proxies and bad proxies. Of course if you give a cause of action to people who have suffered injury on account of their race, many more blacks will be able to use that cause of action than whites. And there's no doubt that was the intent. But that doesn't suffice to make out a successful equal protection claim because the law is self-justifying. It only goes into effect if there is a real injury that justifies the racial classification, or proxy. By definition it's narrowly tailored to remedy past discrimination, and that's something the Court has always said is OK. Now, if the Civil Rights Act had somehow given all blacks a benefit (facially or by proxy), irregardless of whether they had suffered any discrimination, then you have a problem. The same goes for your job training example. It may disparately benefit blacks, it may even be intended to do so, but it will only benefit those who actually need/deserve it. A rich black man won't qualify for (or seek) the job training. A poor white man will qualify. Compare that to the proposal above to give a preference to applicants who are bilingual - obviously an attempt to give a preference to Hispanics, regardless of whether their lives have been touched by institutional discrimination. The assumption is that many have been, but unless you do something more individuated, you don't know. (Not that there's anything wrong, of course, with giving some small preference to knowing multiple languages, if bilingualism is what you're really driving at.)
Now, in regards to Kennedy's questions in oral argument, I think he fell into a real trap. How can it be, he asks, that an objective which is unconstitutional to achieve by direct means constitutional to achieve by what some might call a sneakier means? The answer is that the unconstitutionality lies entirely in the means, not the objective. There's nothing offensive to equal protection in wanting diversity; it's not as if wanting diversity is somehow equivalent to an invidious discriminatory intent. Diversity's fine; it's just a matter of how you do it. If you take individual children and make them go to schools other than the ones they prefer because of their race, then you have something which needs to be looked at with strict scrutiny. There you have injury on account of one's race. If you move a school to some kind of middle zone between two racially homogeneous neighborhoods in an attempt to mix the two, it's hard to say you're denying equal protection to anyone. Now a mother can sue and say, I wanted the school to be two miles from my child but they put it six away to get the racial mix they wanted. Now we'll have to wake up much earlier. That's an inconvenience to me, and it's traceable to race. Fine, but there's no denial of equal protection there because there's no disparate treatment or racial classification. If not for her child's race being what it is, the school would still be in the same exact spot. She suffers an injury, not on account of her race or on account of the state's racially discriminatory attitudes, but only on account of a perfectly legitimate, if not compelling, state interest which happens to involve race. There's nothing problematic about that. Now, maybe, just maybe, if all the white parents in a certain neighborhood wanted the school at nearby Location X, and the city puts it at faraway Location Y because it wants whites to go to school with minorities, there could be some kind of group harm made out. The whites could, arguably, say in that case that the school had been put where it was put because of their race (faraway so it wouldn't be an overwhelmingly white school), and they could argue that, as a group, they had been disadvantaged vis-a-vis minorities. Of course, all this talk about the presumed legitimacy of race-conscious school siting comes into tension with the Court's rulings on race-conscious redistricting - that said, there's not anything necessarily wrong with that, because Shaw doesn't make a lot of sense.
Posted by: Asher | Feb 26, 2008 4:11:23 AM
While I agree with the thrust of his conclusion (that intentional use of proxies to bypass MCRI would violate it), I have to say this piece is a circuitous waste of writing effort and it makes an assumption early - that MCRI is not unambiguous and that there are "multiple concepts of discrimination and preferential treatment" (paraphrase), that is deeply flawed. While he properly closes the circle when he concludes that MCRI voters expected California-like results (that is a universal of the debate, as he points out), so they should get California-like precedent and interpretation (a fair argument, although Michigan courts will put their own stamp on this). Given that California hasn't decided the "proxy issue," why bother analyzing it the legally newborn state of law relating to Michigan? I would hope the Michigan Supreme Court doesn't even get past the plain reading of the language though - then overanalyzing the current non-state-of-the-law in California won't be necessary.
As a primary co-author of the FAQs he cited (while I was Treasurer of MCRI), and very active person on the issue, I take it as a huge complement that he refers to the legal value of those writings as a "cupful of tea leaves". MCRI is a Constitutional Amendment - not a law with precise edges - designed to give guidance and principle to other laws and actions of state government. It isn't supposed to be a hyper-precise listing of do's and don'ts, nor would or should my (or any MCRI official's) passing judgment on specific policies, have the force of judicial interpretation. Plainly said, "proxies" wasn't mentioned because the guiding principle is no "preferential treatment" or treating folks "without regard to race" (you'll note that phrase in the FAQs right after outreach and geographic programs are mnentioned). Plainly, some "proxies" will fail an MCRI test because they are "intended" to circumvent it, some will fail because their designed effect is indistinguishable, and some will succeed because they do something quite different than race preferences (which the universities seem to admit) even if they have incidental racial effects. Obviously, that requires case-by-case analysis using the guiding principle. The FAQs weren't written in "tea leaves" precisely so the guiding principle wouldn't be boxed in or overly-narrowed.
Sure, there are multiple concepts of what a rock is if you believe a lawyer or someone on acid, but most people understand a rock to be a solid irregularly shapen object usually composed of hard silicates. I guess if enough people redefine words to mean their opposites, we might have an argument that air is actually a rock, but then we might as well give up on both the concept of language and agreement (coherentist objectivism). Fitzpatrick seems to give up on a plain construction or plain word interpretation of the law, and in doing so takes 30 pages to get to the result he wants (which I'm not opposed to) and unfortunately gives those forces that would destroy the language ammunition.
MCRI bans programs that give preference based on race. Period. One can support programs like inner-city & rural weightings, or socio-economic criteria, as long as the policies are not intended (hard to prove, but not impossible) or designed with identical effect to proxy for race - - and since the university freely admits those policies won't be as effective in the limited view of diversity as measured only by race, the justification remains quite independent of race. Still, MCRI requires that individuals be treated "without regard to race".
Posted by: Chetly Zarko | Feb 27, 2008 11:49:28 AM
My co-author and I asked the same question last year in a short essay on the MCRI -- it's available here as part of the Michigan Law Review on-line symposium on the topic.
http://www.michiganlawreview.org/firstimpressions/vol105/owenbarbour.htm
Posted by: Danielle | Mar 2, 2008 3:16:49 AM
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