Lessons for the Future of Affirmative Action from the past of the Religion Clauses?

Abstract

For both educational affirmative action and the use of race in districting, this essay pursues parallels with the Supreme Court's religion clause jurisprudence in aid of the argument that the approach mapped out by the Powell opinion in Bakke, the Michigan District Court in Gratz, and the Supreme Court dissenters in the Shaw v. Reno line of voting rights cases makes more sense as a part of our constitutional law than the sort of categorical opposition to the use of race in anything other than a strictly remedial context that is rapidly becoming its chief competition. My contention is that the Supreme Court's attitude toward race, at least in the two contexts of educational affirmative action and voting rights, should follow the same trajectory as its attitude toward religion already has. The trajectory I have in mind is the following: For a period of time, on Establishment Clause grounds, the exclusion of religion and the religious from otherwise generally available opportunities was endorsed, indeed was seen as constitutionally required. Then the Court came to realize that it worked a discrimination against those whose central organizing characteristic or salient trait was their religion to allow other such characteristics, but not religion, to form the basis for inclusion. Similarly, to allow every other basis for commonality or salience to count and not race may be seen to disadvantage those for whom race is a defining characteristic in a way that itself implicates the Equal Protection Clause. To put the argument in extremely compressed and referential form, if colorblindness is analogous to aggressive enforcement of the Establishment Clause, then, while the University of California's use of race in the plan struck down in Bakke may resemble the New York legislature's use of religion in the districting legislation struck down in Kiryas Joel, the inclusion of race in the Harvard admissions plan praised by Justice Powell more closely resembles the inclusion of religion mandated by the Supreme Court for the University of Virginia's funding scheme in Rosenberger. And, if the affirmative action claims of racial minorities are like the accommodation claims of religious minorities, then, while some voluntary pursuit of racial diversity by public educational institutions is like permissible accommodation, some majority minority districting under the Voting Rights Act is like required accommodation.