Social Thought and Analysis
conference on
"Discrimination, Diversity, and Public Policy"
To be held on March 29-30, 2003

From Ideology to Facts:
Shifting Legal Discourse about Affirmative Action in U.S. Higher Education

Clark D. Cunningham
W. Lee Burge Professor of Law and Ethics
Georgia State University College of Law

Two days after the STA conference concludes, the US Supreme Court will hear oral arguments in the most important affirmative action cases to reach the Supreme Court in many years. Both cases involve challenges to affirmative action admission programs at the University of Michigan: Gratz involves the undergraduate program, Grutter is a challenge to the law school's program. Because my presentation on Saturday focuses on these cases, which are rapidly moving targets, understandably I do not have a paper to circulate. Instead, I am offering this outline with links to materials that I will present and discuss on Saturday. I suggest that participants at least review the 2-page Affirmative Action Timeline and the excerpts from the Bush administration brief in the Grutter case that are linked below. More detailed information for those who are interested is also linked at the end of this outline.

My own writing about affirmative action originates in my work on the legal system of India. I have repeatedly suggested that the United States could benefit from a serious comparative study of how other countries have dealt with the problem of remedying the present effects of past discrimination. In particular, India's use of a national commission employing social science methodology to determine which endogamous ethnic groups should be classified as "Other Backward Classes" (the "Mandal Commission") makes a striking contrast to the persistent failure of US affirmative action initiatives to use empirical methods to design and evaluate their programs. (The example of the Mandal Commission is thought-provoking even though its 1980 report and subsequent implementation in the 1990s has been seriously criticized by social scientists and other scholars in India.)

The filing of the Bush administration's widely publicized friend of the court ("amicus") brief last January in the University of Michigan cases marks, I will argue on Saturday, an important shift in the US debate over affirmative action toward empirical rather than ideological questions.

By clicking here, you can review an affirmative action timeline I have prepared. From the Supreme Court's Bakke decision in 1978 through the 5th Circuit's Hopwood decision and the passage of California's Proposition 209 in 1996, the trajectory seemed to be moving closer and closer to the clearly ideological position represented by the concurring opinions of Justices Scalia and Thomas in the 1995 Adarand case:

Justice Scalia: "In my view, government can never have a 'compelling interest' in discriminating on the basis of race in order to 'make up' for past racial discrimination in the opposite direction. ... [U]nder our Constitution there can be no such thing as either a creditor or a debtor race. That concept is alien to the Constitution's focus upon the individual. ... In the eyes of government, we are just one race. It is American." 115 S.Ct. 2118-19.

Justice Thomas: "In my mind, government-sponsored racial discrimination based on benign prejudice is just as noxious as discrimination inspired by malicious prejudice. In each instance, it is racial discrimination, plain and simple." 115 S.Ct. 2119.

I have italicized the telling phrases that begin both quotes ('in my view" and "in my mind") because these justices are signaling so clearly that their personal ideological views about affirmative action should be treated as legal rules, and also that nothing could change their minds about their principled positions. The anti-affirmative action initiatives that won voter approval in California and the state of Washington were likewise based on the simple equation of affirmative action with the evil of racial discrimination, "plain and simple."

In contrast, the Bush administration amicus brief, although publicized as opposing affirmative action, in fact rests its arguments against the University of Michigan programs on entirely factual assertions. The brief appears to concede the main ideological question (whether achieving a racially diverse student body is a "compelling interest" sufficient to justify race-conscious admission criteria) and goes out of its way to ask the Supreme Court NOT to reject Justice Powell's opinion in the Bakke case. Bush Brief, p 21 n. 7 (The Supreme Court has included the Bush administration in the oral arguments. Presumably the Bush administration will be represented before the Court by the Solicitor General, Theodore Olson. Inasmuch as it was Olson, in his pre-Bush role as lawyer with the Center for Individual Rights, who successfully persuaded the 5th Circuit in Hopwood to reject Powell's opinion (and to bar any consideration of race by the University of Texas), it will be very interesting to watch his presentation on April 1.) The Bush brief puts all its eggs in one basket: the factual claim that the "10% percent" admission program adopted in Texas after Hopwood (students graduating in the top 10% of every high school in Texas get to attend the state university campus of their choice) and similar "color blind" programs adopted in California and Florida produce as much racial diversity as explicitly race-conscious admission programs:

"[Michigan's] race-based policy is not necessary to ensure that minorities have access to and are represented in institutions of higher learning [as demonstrated by the] ability of race-neutral alternatives, such as those adopted in Texas, Florida and California, to achieve diversity ..."

To read the key excerpts from the Bush brief, click here.

As a result of the Bush brief, Michigan's briefs to the Court, filed thereafter, devote some space to arguing factual differences between the demographics of Michigan as compared to Texas, California, and Florida. Even more interesting is an amicus brief filed by some very well known social scientists (e.g. Glenn Loury, Nathan Glazer, Douglas Massey) presenting considerable empirical data questioning the effectiveness and efficiency of the Texas, California and Florida plans.

If, as I expect, much of the Court's attention at oral argument, and in its subsequent decision, is devoted to the Bush administration argument, then these cases, already assumed to present a critical turning point in affirmative action law, may also for the first time place empirical research at the center of legal discourse on this issue in the United States.

Additional reading:

Description of University of Michigan undergraduate admission program from the Gratz brief.
Use of demographic data in Michigan's Gratz brief in response to the Bush brief.
Excerpts from the Social Scientists' amicus brief filed in Michigan cases.
Research memo summarizing economic analysis cited in Social Scientists' amicus brief filed in Michigan cases.
Does India hold the key to affirmative action?, by Marcia Coyle (The National Law Journal  August 20, 2001) [describes amicus brief filed by Cunningham on behalf of social science and comparative law scholars in 2001 Adarand case]
Clark D. Cunningham, Affirmative Action: India's Example, 4 Civil Rights Journal 22 (1999)
Clark D. Cunningham & N.R. Madhava Menon, Race, Class,Caste ...? Rethinking Affirmative Action, 97 Michigan Law Review 1296 (1999)
Cunningham, Loury & Skrentny: PASSING STRICT SCRUTINY: USING SOCIAL SCIENCE TO DESIGN AFFIRMATIVE ACTION PROGRAMS , 90 GEORGETOWN LAW JOURNAL 835 (April 2002)

Click here for link to extensive web site on Adarand and Michigan cases.

Clark D. Cunningham
W. Lee Burge Professor of Law and Ethics
Georgia State University College of Law
P.O. Box 4037
Atlanta, GA 30302-4037
Phone: (404) 651-1242
Fax: (404) 651-2092
Street Address for Courier Delivery:
140 Decatur Street, Suite 400
Atlanta, GA 30303
Email: cdcunningham@gsu.edu
Home Page: http://law.gsu.edu/ccunningham/cunningham.htm

The Burge Chair was established by an endowment from the U.S. District Court for the Middle District of Georgia, using funds collected for alleged attorney misconduct to promote ethics, professionalism, and access to justice.