Wooooo, Spring Break! Time to book my flight to Vegas...I'm gonna be gambling all day, partying all night, and this'll be the craziest week of my life!
Oh, wait: I'm a 1L. That means that I'll be spending large portions of my spring break outlining for my courses instead of heading to the beach. Working over the holidays? Come On!
On the plus side, I finally get the opportunity to work on something that I've neglected over the last few months: I get to start thinking critically about the material I've been digesting. (I figure) this type of thought is essential both for acquiring a comprehensive understanding of the various areas of law and for determining whether this is actually the profession to which I want to dedicate myself. Still, this isn't a very pleasant academic exercise for me, because I'm not as intellectual as many of y'all. So, as a veritable compromise, I'm gonna start with a more palatable topic of discussion: affirmative action. (Trust me, AA is about 50x more interesting than debating the merits of, say, diversity jurisdiction.) My professor posed to our class a few questions to ponder in between games of beer pong, so I'll use them as this post's springboard.
First, a premise: we are only talking about state-sponsored AA. In other words, don't count on that laissez-faire trump card to bail you out on this one, haha.
1. Is there justification for AA if it harms innocent individuals?
Okay, we discussed this one in class. First, there was debate over whether AA does in fact "harm" an Innocent. (In the interests of efficiency and clarity, I'm going to turn "innocent" into a proper noun to denote "an innocent individual." Forgive my laziness, mkay?) Let's just assume arguendo that AA does inherently harm Innocents.* Most had no problem saying that the fact that AA harms Innocents does not by itself suffice to defeat the policy. In supporting this claim, they pointed to** examples such as a general tax that supports welfare, or a law that bans 14 year olds from driving. While those examples won't be completely analogous, they each demonstrate an instance in which an Innocent is sacrificed. In the words of one of my fellow 1L's, "good luck finding a law that won't harm any innocents."
Well, I originally nodded my head in assent when he made that pithy assertion, but now I'm not so sure. Admittedly, laws discriminate all the time. The drinking age discriminates against those under 21, e.g. Surely, that potential 20 year old drinker is an Innocent, and yet he suffers. But, what about Criminal Law? How does a "thou shall not rape" law harm an Innocent?
That said, even I must concede that laws must be permitted to harm an individual (that is, take away some of an individual's liberties) for the sake of the people. For example, our 1st Amendment rights to freedom of speech and free exercise of religion are constrained. You can't falsely shout "fire" in a crowded theatre.*** If your religion requires you to sacrifice human virgins, guess what: you can't do that.
So, to this point all we've said is that a law that does harm Innocents should not be prima facie unconstitutional. Now, let's decide whether AA specifically should be legitimate. (I'm attempting to avoid the word "constitutional" because this is a normative discussion that's doing its best to steer clear of actual law.)
See, my initial reaction is this: AA benefits one race at the expense of another race. (To keep this simple, let's just assume that there are only 2 races in America.) AA in any form is a type of discrimination (we'll call it "benign discrimination"). Public discrimination should be illegal. Therefore, public AA should be illegal. Obviously, the logic here is valid, but is it sound? Our first premise is true: both sides agree that AA is a type of discrimination in that it uses race alone to privilege one group over another. So, let's move on to the second premise.
"Public discrimination should be illegal." True? Well, maybe not. This all depends on your opinion of the proper function of a government. If the government should merely protect its citizens equally and apply the laws equally to all citizens, then this premise is true. But, if you prefer a more "activist" government (sorry for the potentially loaded language), you'll say something like this:
"In light of the sorry history of discrimination and its devastating impact on the lives of Negroes, bringing the Negro into the mainsteram of American life should be a state interest of the highest order." (Justice Marshall dissenting in Regents of the University of California v. Bakke, 438 U.S. 265 (1978).)
...and y'know, it's tough to argue with that. I mean, think about it like this: if a black could prove that he personally had been harmed as a result of state-sponsored discrimination (Jim Crow, perhaps), wouldn't the government have a duty to make amends? Wouldn't the most effective means of amends be something like a "boost" in his college application rather than something like a lump sum of money? (Give a man a fish and you feed him for a day...)
Okay, now does that black person even need to prove that discrimination has personally touched his life? In the words of Marshall, "the racism of our society has been so pervasive that [no Negro], regardless of wealth or position, has managed to escape its impact." Neither proof nor a demonstration of "personal" harm should be necessary.
But, is it fair that this boost comes at the expense of a white student? One may claim that the hurt is so diffused that it's barely noticeable, but I disagree. A tax on everyone in order to pay for the rebuilding efforts in NOLA: that's something that's spread out sufficiently. Everyone pays $5, and the country has $10 million to use. (No, I don't like the tax, that's irrelevant for this purpose.) With AA, you only hurt those 5 white students who lose out to the 5 black students, but you hurt those 5 whites a lot. Looking on a "micro" level, this seems too unfair to justify AA. On a "macro" level, maybe you can justify the program. I'm still unsure about this.
So, hypothetically we allow AA, at least until general racial discrimination in America has vanished. But, is that a workable test? How will we know when general racial discrimination has vanished? Will we just "know it when we see it?" In theory, we'll one day become a fully integrated and equal society. At that point, we would have absolutely no justifications for AA, so to continue an AA program once we crossed that threshold would be wrong. When will we know when to stop?
Then again, how pressing of a concern is that, honestly. So in 100 years, we'll reach a point where blacks will be benefitting unfairly from an AA program until enough whites figure it out and the program gets repealed. This is a pretty minor problem in the grand scheme of things.
Returning back to Marshall's (first cited) quote, we seem to have reached the point where we agree that integrating blacks is a "state interest." That doesn't make it inherently legal, however. (Now I'm shifting the debate from "should we have AA?" to "is it legal to have AA?") For example, it's a legitimate state interest to stop murders, but that doesn't mean that the government can take your gun from you. Depending on the type of right that the governmental action is burdening, the Supreme Court will analyze the case in one of multiple ways.
Here comes a lesson in constitutional law, which, it turns out, is significantly harder than my undergrad prof made it out to be, haha.
The 14th Amendment reads in part that "[n]o state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." (Emphasis added, of course.)
That last part of the quoted material is known as the "equal protection clause," and it's a major source of controversy. It's also a major tool used by minorities to obtain legal protection. A few things to note: the Amendment says "no state"; it makes no reference to private parties or to the United States federal government. That said, the Supreme Court held in 1954 in Bolling v. Sharpe that the 14th Amendment does apply, at least loosely, to the federal government.****
Also, don't read this Amendment too literally. You can still classify people...laws do that all the time. In general, the classification need only have a "rational basis" in order to pass constitutional muster. This is a pretty low hurdle to clear.
So, we had a lot of jurisprudence on all parts of the 14th Amendment, and I won't bore you with the details. Then, in 1938, a case called Carolene comes along. No one besides Kate Wagner remembers any of the facts, but everyone knows about its famous "Footnote 4", in which (the law clerk for) Justice Stone suggests in a footnote that maybe there are certain "suspect classifications" (such as "discrete and insular" minorities) that the Court should examine especially closely. His reasoning? These minorities will rarely, if ever, have a political majority, so it's more likely that they will be hurt disproportionately by any laws. As opposed to the "rational basis test" employed for other classifications, the Court proceeded to use "strict scrutiny" when considering laws that classified on the basis of race.
What does "strict scrutiny" mean? Well, the law may still survive, but it's gonna be damn near impossible. In order for the law to survive strict scrutiny, it must address a "compelling state interest" and its means must be narrowly tailored and sufficiently relate to the purpose.
Let me give you some examples: a state law that sets the driving age at 16 is not based on a suspect classification. Therefore, it just needs to clear the "rational basis" hurdle, which it'll do easily. On the other hand, a law that prohibits interracial marriage will be struck down because this governmental interest isn't sufficiently compelling. A law that prohibits dissent in the interest of winning a war is a bit trickier: the governmental interest is sufficiently compelling, but the means are not sufficiently related to the purpose. (In case you're wondering, the Court gives us little guidance as to what it considers "sufficiently compelling.")
The Court has no problem applying Strict Scrutiny to cases in which minorities are targeted. When the majority is targeted (as in the case of AA), the Court recently held that yes, Strict Scrutiny does apply here as well. Take my word for it or read City of Richmond v. Croson, 488 U.S. 469 (1989). (I can't be sure whether this is the last word, though, cuz we haven't yet read the recent AA cases, but a cursory glance suggests that SS still stands.)
So, now we have a pretty straightforward formula to employ. I've already maintained that the state interest in integration is compelling. Whether the means are narrowly tailored and sufficiently related depends on the individual cases, but I'd suggest that AA is indeed sufficiently related to the goal of integration.
CliffsNotes of where I come out: Within reason, governments have the right to harm individuals for the betterment of the group. I'm still not sure whether AA itself achieves enough positives to outweigh the negatives of hurting those 5 innocent white students. I do think that AA will generally be constitutional, but it'll depend on the specific setup of the program.
Thanks for reading. Now, respond.
*One girl suggested that, since Innocents have had preferential treatment beforehand, they're not harmed per se. I couldn't follow her reasoning, though. Pulling someone down doesn't hurt that person simply because he previously had been boosted up? Wat?
**To be completely honest, there will be many times in this post where I'll claim that my classmates "said" something when in reality they didn't. In other words, to facilitate the discussion, I'll be putting words in my peers' mouths (in their defense, you'd be reticent too if you were put on the spot in the last class before spring break. Well, unless you're Ryan, haha).
***When you inevitably quote this part of the memorable Oliver Wendell Holmes opinion some time in your life, do me a favor and make sure not to omit the word "falsely." You don't want to leave yourself open to an attack from a particularly picky onlooker.
****How did the Court come to this conclusion that seems to contradict a plain reading of the Constitution? It used something called "reverse incorporation." A brief, mostly correct explanation: the Bill of Rights didn't originally apply to the States. They only applied to the federal government. (Read the 1st Amendment: "Congress shall make no law...") But, once the 14th Amendment passed, the Justices slowly began to use the Due Process Clause of that Amendment to apply some (but not all) of the original 10 amendments to the State governments. That process is known as "incorporation." Reverse incorporation, then, is applying to the federal government something that previously applied exclusively to the States (like, say, the 14th Amendment). The Court used the Due Process Clause of the 5th Amendment to achieve this result.
