The Supreme Court’s “Inconsistent” History on Affirmative Action

I recently heard an assertion that the United States’ Supreme Court has acted “inconsistently” in regards to its affirmative action decisions, and decided that it was a strong enough claim that I ought to have an opinion myself. I know—what kind of crazy person would find this type of discussion interesting? Well, for better or worse, I do; furthermore, chances are that if you’re reading this post, you do too. So welcome to the Crazy Person Club. As evidence of my craziness, this will be the second post related to diversity on my infant blog. There’s not much overlap between the two posts, though.

***DISCLAIMER: In reading over my post, I realized that from here on out I tend to slip into a more academic (borderline pompous) voice. I apologize profusely. I am at the end of a rather intense masters program though, so please be gentle with your judgment. Old habits die hard, I suppose. Now, back to the show.***

In researching the topic a bit, I came across Riccucci’s 2005 article, which goes even a step further, stopping just short of accusing the Court of outright self-contradiction on the matter (p. 407). While Riccucci and other, similar claimants certainly have enough case law from which to draw support on this subject (and many others), it is that same case law that acquits the Court from the assertions regarding affirmative action (although, there is decidedly little evidence to acquit it from these claims in other subjects—but that is a post for another time). Instead, Court decisions concerning affirmative action must be seen in the larger context as an illustration of ever-evolving public policy, each decision building upon the previous to construct a reparative, yet non-discriminatory principle. Not an easy task.

To accuse the Court of inconsistency or contradiction would be to expect it to foresee every effect that its every decision would have on every United States’ citizen. This assumption would be unfair in relatively simple cases; in extraordinarily complex cases like those involving affirmative action, whose intricacies intensify with each subsequent case, claims of contradiction border on the absurd. In Regents of the University of California v. Bakke (1978), the Court ruled positively for affirmative action, but in principle only—it also specified that in this particular case the admissions program was incorrect in using race as its only true criterion for admissions, thus suggesting that race may be used as one of many such criteria. Generalities such as these are expected when they result from the Court’s first opportunity to rule on affirmative action as a policy for higher-education admissions. The fact that the Court’s decision in Bakke had no wording to the effect of “narrowly tailored,” “compelling government interest” or “plus factor” like Grutter v. Bollinger (2003) does not prove a lack of education-related foresight. Instead, it is evidence of the side effects associated with the Court’s efforts to create and regulate a policy that must evolve with the citizenry.

As this policy evolved and began to encompass employment as well as academia, the Court’s ruling in Firefighters Local Union and Memphis Fire Department v. Stotts (1984) was, and continues to be seen as a blow to affirmative action (Riccucci, p. 408). This constricted perspective, however, insists that affirmative action is one, massive policy that either progresses or regresses. It is understandable that this attitude would be prevalent, though, given that up to this point the Court had supported affirmative action in broad generalities. In Stotts, the Court made it known that it would no longer do so, upholding the constitutionality of using seniority systems when making layoff decisions, despite the theory that doing so would have a negative impact on affirmative action generally as Riccucci contends. But it is important to view affirmative action as a series of decisions, and not as a general cause. The Court decided that affirmative action was still a viable policy and should be incorporated in every way it had previously stated—except, that is, when it comes to seniority systems and layoffs. That one, specific part of the overarching affirmative action policy was now different.

There is nothing contradictory, inconsistent or even negative about the relationship between Stotts, Bakke, either Bollinger case, or any other landmark affirmative action case, whether it applies to education or employment. Instead, each decision adds another chapter to a growing policy file that evolves as cases are presented. As Wilson (1993) suggests, it is hoped that this evolution will one day result in affirmative action disappearing altogether, leaving diversity as its replacement.