The Ironies of Affirmative Action

The Supreme Court’s most recent confrontation with race-based affirmative action, Fisher v. University of Texas, did not live up to people’s expectations—or their fears. The Court did not explicitly change the current approach in any substantial way. It did, however, signal that it wants race-based affirmative action to be subject to real strict scrutiny, not the watered-down version featured in Grutter v. Bollinger. That is a significant signal, because under real strict scrutiny, almost all race-based affirmative action programs are likely unconstitutional. This is especially true given the conceptual framework the Court has created for such programs—the way the Court has set up the constitutional analysis. On the other hand, the Court’s conceptual framework is wildly, almost absurdly, wrong. This Article will discuss the way the Court has set up the constitutional analysis of affirmative action and why it is wrong. It will do so in the form of a list—a list of the propositions we must accept if we are to take the Court’s affirmative action jurisprudence at face value. Some of these are things that the Court has said explicitly, and others are inferences I feel it is fair to draw. Not all of them command majority support, and when they do not, I note that. Some of them, I hope, bear their absurdity on their face; for others, I offer some explanation of why I think they do not make sense. In all, I hope this list supports the assessment I give my first-year constitutional law students: of all the areas of the Court’s jurisprudence we cover in our survey of constitutional law, the handling of race-based affirmative action is the least defensible