Doctrines of Delusion: Bakke, Fisher and the Case for a New Affirmative Action

Abstract

This Article provides an up-to-date analysis and critique of the intellectual foundations of the Supreme Court’s affirmative action jurisprudence based on evidence of our history of past societal discrimination. My analysis shows that the principal ideas underlying the Court’s affirmative action decisions are false or misleading and operate to protect only white interests. The Court’s decision last term in Fisher v. Texas renewed the Court’s commitments to Bakke and Grutter, with their focus on diversity rather than past societal discrimination. Yet remedying our history of past societal discrimination was the original motivation for affirmative action, and it remains the most important reason for affirmative action. The Court’s reasoning in these cases disconnects affirmative action from its historical and social context. In this Article, I situate the Court’s affirmative action jurisprudence within its historical context and test the validity of the Court’s premises against the background of history. This Article presents powerful historical evidence documenting the federal government’s intentional promotion and subsidization of race discrimination against African Americans in the design and implementation of the G.I. Bill. The educational and housing benefits of the G.I. Bill were, by design, enjoyed almost exclusively by whites, increasing significantly gaps in educational achievement and wealth between blacks and whites. This Article uses this history and the findings of the latest sociological research to analyze the main ideas under-girding the affirmative action decisions. I identify seven highly influential ideas that under-gird the Court’s affirmative action decisions. The first three ideas are assumptions about affirmative action generally: 1) an increase in the stigma borne by students of color is a proper argument for curtailing affirmative action; 2) affirmative action constitutes “racial preference” for blacks and “reverse discrimination” against whites; and 3) whites are innocent victims who should not bear the burdens of affirmative action. The next two ideas form the basis for applying strict scrutiny in affirmative action cases: 4) whites too have been victims of discrimination and there is no principled way of distinguishing between the discrimination experienced by whites and blacks; and 5) equal protection must mean the same thing when applied to whites and to blacks. Lastly, the Court has reached two important conclusions about what constitutes a compelling government interest: 6) remedying past societal discrimination is not a compelling government interest; 7) diversity is a compelling government interest. Upon close analysis, and using the historical context provided by the G.I. Bill, these principal ideas under-girding the Court’s affirmative action decisions turn out to be either false, misleading, or protective only of white interests. Despite their falsity, these ideas are widely believed. Because of both their falsity and widespread public belief in them, I call these the doctrines of delusion. I conclude that the Court’s reliance on these doctrines of delusion shows the Court to be a majoritarian institution intent on protecting the educational and economic interests of whites.