A rational basis for affirmative action: A shaky but classical liberal defense

Michigan Law Review

Volumn 100, Issue 8, 2002, Pages 2036-2059

  Epstein, Richard A ^a  

^a NONE

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EID: 0345807393     PISSN: 00262234     EISSN: None     Source Type: Journal    
DOI: 10.2307/1290433     Document Type: Article

References (68)

1. 122 F. Supp.2d 811 (E.D. Mich. 2000).
2. 137 F. Supp.2d 821 (E.D. Mich. 2001), rev'd 288 F.3d 732 (6th Cir. May 14, 2002).
3. Grutter v. Bollinger, 288 F.3d 732 (6th Cir. 2002). The case was marked by a sharp procedural dispute over the propriety of the en banc decision. For the attack on the procedure, see Grutter, 288 F.3d at 810-14 (Boggs, J., dissenting), responded to in Grutter, 288 F.3d at 752-58 (Moore, J., concurring) and Grutter, 288 F.3d 772-73 (Clay, J., concurring). I take no position on this dispute.
4. 438 U.S. 265 (1978).
5. 515 U.S. 200 (1995).
6. So defended in RICHARD A. EPSTEIN, TAKINGS: PRIVATE PROPERTY AND THE POWER OF EMINENT DOMAIN (1985).
7. See, e.g., ROBERT H. BORK, SLOUCHING TOWARDS GOMORRAH: MODERN LIBERALISM AND AMERICAN DECLINE (1996).
8. 515 U.S. at 227.
9. Grutter, 288 F.3d at 750-51.
10. Grutter, 137 F. Supp.2d at 837 n.20.
11. Id. at 839.
12. See ARISTOTLE, THE NICOMACHEAN ETHICS, Book V, 1131b-25 et seq. (H. Rackham trans., Harvard University Press reprint ed. 1982).
13. For my views on this in connection with litigation on local school districts, see Richard A. Epstein, The Remote Causes of Affirmative Action, Or School Desegregation in Kansas City, Missouri, 84 CAL. L. REV. 1101 (1996), discussing Missouri v. Jenkins, 510 U.S. 70 (1995).
14. For discussion, see, for example, Kathleen M. Sullivan, The Supreme Court, 1986 Term - Comment: Sins of Discrimination: Last Term's Affirmative Action Cases, 100 HARV. L. REV. 78 (1986).
15. Grutter, 137 F. Supp.2d. at 825-36; Gratz v. Bollinger, 122 F. Supp.2d 811, 822 (E.D. Mich. 2000).
16. Gratz, 122 F. Supp.2d. at 822-23.
17. See Civil Rights Act of 1964, § 703(e), codified in 42 U.S.C. § 2000e-2 (1994) (allowing bona fide occupational qualifications for religion, sex and national origin). For my views, see RICHARD A. EPSTEIN, FORBIDDEN GROUNDS: THE CASE AGAINST EMPLOYMENT DISCRIMINATION LAWS 283-312 (1992) [hereinafter EPSTEIN, FORBIDDEN GROUNDS].
18. Id. (race not on list).
19. As stated in the Clark-Case memorandum in support of the Civil Rights Act. 110 CONG. REC. 7213 (1964).
20. See, e.g., Int'l Union, UAW v. Johnson Controls, Inc., 499 U.S. 187 (1991).
21. See, e.g., Torres v. Wisconsin Dep't of Health and Social Servs., 838 F.2d 944 (7th Cir. 1988) (rejecting practice), overturned en banc, 859 F.2d 1523 (7th Cir. 1988) (reversing decision below).
22. 78 F.3d 932 (5th Cir. 1996).
23. GLENN C. LOURY, THE ANATOMY OF RACIAL INEQUALITY 133 (2002).
24. See, e.g., McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) (setting out the various disparate treatment tests to smoke out cases in which neutral language was a pretext for discriminatory outcomes).
25. See, e.g., Griggs v. Duke Power, 401 U.S. 424 (1971).
26. Reitman v. Mulkey, 387 U.S. 369 (1967).
27. 323 U.S. 214 (1944).
28. Gerald Gunther, The Supreme Court, 1971 Term - Foreword: In Search of Evolving Doctrine on a Changing Court: A Model for a Newer Equal Protection, 86 HARV. L. REV. 1, 8 (1972).
29. See, e.g., Williamson v. Lee Optical, 348 U.S. 483 (1955); Ry. Express Agency v. New York, 336 U.S. 106 (1949) (upholding restrictions on advertising under due process).
30. 198 U.S. 45 (1905).
31. See, for example, the cases striking down wage and price regulations in those industries not "affected with the public interest." See, e.g., Wolff Packing Co. v. Court of Indus. Relations, 262 U.S. 522 (1923) (effectively overruled in Nebbia v. New York, 291 U.S. 502 (1934) (sustaining minimum prices for milk)); United States v. Cohen Grocery Co., 255 U.S. 81 (1921).
32. 315 U.S. 110 (1942).
33. 317 U.S. 111 (1942).
34. See, e.g., Parker v. Brown, 317 U.S. 341 (1943).
35. See Richard Stewart, The Reformation of American Administrative Law, 88 HARV. L. REV. 1669 (1975).
36. United States v. Carolene Products Co., 304 U.S. 144, 152-53, n.4 (1938).
37. See, e.g., Smith v. Allwright, 321 U.S. 649 (1944) (invalidating white primary); Grovey v. Townsend, 295 U.S. 45 (1935) (sustaining white primary).
38. 163 U.S. 537 (1896).
39. See, e.g., Gratz v. Bollinger, 122 F.2d 811, 822 n.11 (E.D. Mich. 2000). See also the corporations: General Motors, Abbott Laboratories, Bank One Corp., E.I. Dupont de Nemours Co., Dow Chemical Co., Eastman Kodak Col., General Mills, Inc. Intel Corp., Johnson and Johnson, Kellogg Co., KMPG Int'l, Lucent Technologies, Inc. Microsoft Corp., PPG Industries, Inc., Procter and Gamble Co., Sara Lee, Crop., Texaco, Inc., TRW, Inc. Id. at 813. See also, the ExxonMobil advertisement in the New York Times, March 7, 2002, at A31, "Laborious indeed at the first ascent," whose insert proclaims "Business support for women and minorities is growing." The ad is one of a series that proclaims all the race and sex-based programs that business supports, and praises per se violations of the color-blind, sex-blind standards of the Civil Rights Act of 1964.
40. For fuller statements of my position, see RICHARD A. EPSTEIN, PRINCIPLES FOR A FREE SOCIETY: RECONCILING INDIVIDUAL LIBERTY WITH THE COMMON GOOD (1998), and RICHARD A. EPSTEIN, SIMPLE RULES FOR A COMPLEX WORLD (1995). I shall not document the details of the argument here .
41. For fuller statements of my position, see RICHARD A. EPSTEIN, PRINCIPLES FOR A FREE SOCIETY: RECONCILING INDIVIDUAL LIBERTY WITH THE COMMON GOOD (1998), and RICHARD A. EPSTEIN, SIMPLE RULES FOR A COMPLEX WORLD (1995). I shall not document the details of the argument here .
42. See, e.g., ADAM SMITH, THE WEALTH OF NATIONS 777 (Mod. Lib. Ed. 1937) ("The subjects of every state ought to contribute toward the support of the government, as nearly as possible, in proportion to their respective abilities; that is, in proportion to the revenue which they respectively enjoy under the protection of the state.").
43. On this point, Adam Smith is most instructive: According to the system of natural liberty, the sovereign has only three duties to attend to: . . . . first the duty of protecting the society from the violence an invasion of other independent societies; secondly, the duty of protecting as far as possible every member of the society from the injustice or oppression of every other member of it, or the duty of establishing an exact administration of justice; and, thirdly, the duty of erecting and maintaining certain public works and certain public institutions, which it can never be for the interest of any individual, or small number of individuals to erect and maintain. Id. at 651. That this position does not contemplate the regulation of labor markets is seen by Smith's earlier observation: [T]he obvious and simple system of natural liberty establishes itself of its own accord. Every man, as long as he does not violate the laws of justice, is left perfectly free to pursue his own interest in his own way, and to bring both his industry and capital into competition with those of any other man, or order of men. Id.
44. Again, for the fuller elaboration, see EPSTEIN, FORBIDDEN GROUNDS, supra note 17.
45. Plessy v. Ferguson, 163 U.S. 537, 559 (18) (Harlan, J., dissenting): The white race deems itself to be the dominant race in this country. And so it is, in prestige, in achievements, in education, in wealth, and in power. So, I doubt not, it will continue to be for all time, if it remains true to its great heritage and holds fast to the principles of constitutional liberty. But in view of the Constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. Our constitution is color-blind.
46. See, e.g., United States v. Terminal R.R. Ass'n, 224 U.S. 383 (1912).
47. For discussion, see William N. Eskridge, Jr., Some Effects of Identity-Based Social Movements on Constitutional Law in the Twentieth Century, 100 MICH. L. REV. 2062 (2002) (this issue).
48. 443 U.S. 193 (1979).
49. See ROBERT NOZICK, ANARCHY, STATE, AND UTOPIA (1974), criticized in LOURY, supra note 23, at 128, 212 n.5 (2002). The gist of that criticism is that the theory does not explain what should be done when the transfer of resources in society does not follow the prescribed rules, which in Nozick's case are the rules of original acquisition by capture followed by voluntary' transfer thereafter - yet another variation on Smith's system of natural liberty. But no theory works well with restitution from admitted wrongs, especially those from systemic social causes. For different views on this subject, see Orlando Patterson, Beyond Compassion, DAEDALUS, Winter 2002, at 26, and Richard A. Epstein, Against Redress, DAEDALUS, Winter 2002, at 39.
50. See ROBERT NOZICK, ANARCHY, STATE, AND UTOPIA (1974), criticized in LOURY, supra note 23, at 128, 212 n.5 (2002). The gist of that criticism is that the theory does not explain what should be done when the transfer of resources in society does not follow the prescribed rules, which in Nozick's case are the rules of original acquisition by capture followed by voluntary' transfer thereafter - yet another variation on Smith's system of natural liberty. But no theory works well with restitution from admitted wrongs, especially those from systemic social causes. For different views on this subject, see Orlando Patterson, Beyond Compassion, DAEDALUS, Winter 2002, at 26, and Richard A. Epstein, Against Redress, DAEDALUS, Winter 2002, at 39.
51. See ROBERT NOZICK, ANARCHY, STATE, AND UTOPIA (1974), criticized in LOURY, supra note 23, at 128, 212 n.5 (2002). The gist of that criticism is that the theory does not explain what should be done when the transfer of resources in society does not follow the prescribed rules, which in Nozick's case are the rules of original acquisition by capture followed by voluntary' transfer thereafter - yet another variation on Smith's system of natural liberty. But no theory works well with restitution from admitted wrongs, especially those from systemic social causes. For different views on this subject, see Orlando Patterson, Beyond Compassion, DAEDALUS, Winter 2002, at 26, and Richard A. Epstein, Against Redress, DAEDALUS, Winter 2002, at 39.
52. See ROBERT NOZICK, ANARCHY, STATE, AND UTOPIA (1974), criticized in LOURY, supra note 23, at 128, 212 n.5 (2002). The gist of that criticism is that the theory does not explain what should be done when the transfer of resources in society does not follow the prescribed rules, which in Nozick's case are the rules of original acquisition by capture followed by voluntary' transfer thereafter - yet another variation on Smith's system of natural liberty. But no theory works well with restitution from admitted wrongs, especially those from systemic social causes. For different views on this subject, see Orlando Patterson, Beyond Compassion, DAEDALUS, Winter 2002, at 26, and Richard A. Epstein, Against Redress, DAEDALUS, Winter 2002, at 39.
53. 110 CONG. REC. 6548 (1964).
54. For my views, on the point, see Epstein, FORBIDDEN GROUNDS, supra note 17, at 163-65.
55. Adam Smith may have been a bit harsh when he wrote: "Were there no public institutions for education, no system, no science would be taught for which there was not some demand; or which the circumstances of the times did not render it either necessary, or convenient, or at least fashionable, to learn." SMITH, supra note 41, at 733.
56. 198 U.S. 45 (1905).
57. Kimberlé Williams Crenshaw, Address at the Michigan Law Review Centennial Celebration (Feb. 16, 2002).
58. 347 U.S. 483 (1954).
59. CAL. CONST. art. 1, § 31 (adopted 1996).
60. U.S. CONST. amend. I.
61. For discussion, see Michael McConnell, Accommodation of Religion, 1985 SUP. CT. REV. 1; Philip Kurland, Of Church and State and the Supreme Court, 29 U. CHI. L. REV. 1 (1961) (advocating strict neutrality), and Douglas Laycock, The Underlying Unity of Separation and Neutrality, 46 EMORY L.J. 43 (1997).
62. For discussion, see Michael McConnell, Accommodation of Religion, 1985 SUP. CT. REV. 1; Philip Kurland, Of Church and State and the Supreme Court, 29 U. CHI. L. REV. 1 (1961) (advocating strict neutrality), and Douglas Laycock, The Underlying Unity of Separation and Neutrality, 46 EMORY L.J. 43 (1997).
63. For discussion, see Michael McConnell, Accommodation of Religion, 1985 SUP. CT. REV. 1; Philip Kurland, Of Church and State and the Supreme Court, 29 U. CHI. L. REV. 1 (1961) (advocating strict neutrality), and Douglas Laycock, The Underlying Unity of Separation and Neutrality, 46 EMORY L.J. 43 (1997).
64. Rosenberger v. Rector, 515 U.S. 819 (1995).
65. 494 U.S. 872 (1990).
66. See City of Boerne v. Flores, 521 U.S. 507 (1997) (striking down the Religious Freedom Restoration Act, 42 U.S.C. §§ 2000bb-1 to - 4 (1994)). I think that Boerne was correctly decided insofar as it affirmed the dominance of the Court over Congress in setting constitutional standards. But that is only one reason why Smith should be overruled.
67. Thus the believer in strict neutrality would allow a prohibition on all headgear if done for nonreligious reasons. But surely an accommodation that allowed religious headgear should be allowed in classes absent some clear showing as to why it is inappropriate. But these details do not influence the general point here.
68. For typical examples, see Erwin Chemerinsky, The Rhetoric of Constitutional Law, 100 MICH. L. REV. 2008 (2002) (this issue).