No Market Exception for Affirmative Action

by John Francis Delano

The Supreme Court has held that affirmative action can be squared with the Equal Protection Clause on several occasions, but it has never stated a clear standard to distinguish between acceptable affirmative action, and invidious discrimination on the basis of race. That may change next year when it rules on Fisher v. University of Texas, a case in which a student is challenging the constitutionality of affirmative action at public universities. The Court can simplify the law in one of two ways: it can declare all affirmative action in public universities unconstitutional, or it can create a market-participant exception to the Equal Protection Clause. Although either approach would simplify the law, the Court would be wise to prohibit affirmative action by public universities altogether.

The obvious solution to the constitutional question of affirmative action is to simply hold that it denies white students the equal protection of the laws. As Chief Justice Roberts put it in a 2007 case about public-school integration, “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” This holding is much simpler than the Court’s 2003 opinion in Grutter v. Bollinger, which allowed a public university to use affirmative action as long as it was part of an individualized review of each candidate, did not automatically award minority applicants automatic points, and aimed at the educational benefits of diversity rather than having a “critical mass” of minority students. Roberts’ rule is also appealing because it can be applied forever; Justice O’Connor, who wrote the Court’s opinion in Grutter, had to concede that the members of the Court “expect that 25 years from now, the use of racial preferences will no longer be necessary.” Judges won’t be any more able to weigh the classroom effects of racial diversity in 2028 than they were in 2003, but it might be reasonable to expect them to determine whether a public university is discriminating on the basis of race.

Admittedly, that expectation might not be reasonable: courts have no failsafe way to monitor racial discrimination. In California, for example, the state constitution prohibits the consideration of race in public university admissions. That does not mean the courts have stopped it in reality: through intensive recruiting efforts, and by increasing the role of personal circumstances in admissions, the University of California has continued to be conscious of the race of its applicants. It is entirely possible that “banning” affirmative action would just make it harder to detect and implement.

An alternative approach for the Court would be to treat public universities the same as private ones, by granting them a legal right to use affirmative action. As the law currently stands, the exact opposite is true: neither public nor private universities can freely craft their admissions policies, because of restrictions on institutions that receive public funding. The “market participant” exception to the Commerce Clause could serve as a precedent for reversing this rule and freeing universities of every kind. It lets states discriminate against non-residents, as long as they are merely engaging in ordinary business. A state cannot discriminate for the sake of protectionism when it regulates businesses, but it can choose who to buy and sell from, just like any of its private competitors.

Why not treat public universities the same way? Sure, they are government-funded, but they provide the same services and fill the same role in society. The government owns them, but they compete directly with private universities for applicants. Simply because they receive tax support does not mean that they operate in an alternate universe, and there is no reason to put extra legal burdens on them. If their private competitors can use affirmative action, then they should be allowed to as well. Like a prohibition on affirmative action, a market-participant exception here would simplify the law. The Court would simply hold public universities to the same standards it applied to private ones.

A market-participant exception would fix the institutional honesty problem caused by a prohibition on affirmative action, too. With the legal protection to pursue the same goals as private universities in the same way, public universities would have no need to subtly use recruiting focus or personal statements to strengthen diversity. They could make their policies fully transparent, which would strengthen their relationship with the public that supports them.

There are good reasons for a market-participant exception for public university admissions. But, the need to protect the whole system of law weighs decisively against affirmative action. Creating an exception to the Equal Protection Clause would tempt the Court to create other market-participant carve-outs from constitutional protections. In public universities, that might mean even more restrictions on student speech and assembly than the Court already tolerates, such as forcing groups to accept anyone as their leader regardless of their ideological purpose – after all, no private university is legally obligated to tolerate opinions it dislikes. Besides, a private university can refuse to admit minority students entirely. Surely a public university shouldn’t be allowed to do that, simply because the two institutions are in the same market.

The law would be even worse if the market-participant exception were expanded to other areas of the public sector. Private employers can refuse to hire someone who wears religious dress – not many Americans would like to see government employers free to follow in the British government’s secularist footsteps as a result. A market-participant exception to constitutional rights could become a backdoor way for the government to use its commercial powers to limit American liberty.

The Constitution sets unique limits on government, ones that may not apply to private actors and institutions. The government has the capacity to favor people in, or bar them from, essential services, but American law demands that it stand for the equality of all its citizens. This is a principle worth honoring, even if its application ties the hands of public institutions where private ones are free.

By itself, the idea of a market-participant exception for affirmative action in public universities is attractive. It would simplify the law and promote transparency in admissions, two good things. But it would be an ugly precedent for the rest of the law, and could create great dangers to constitutional rights. Outright prohibition is the better way to go – even if, unfortunately, private universities will have to fight another day for the freedom to select their own student bodies as they see fit.

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