Stare decisis and equal protection

I attended the lunchtime talk of the 2018 U. C. Davis Law Review Symposium “Bakke at 40.” The subject of the symposium was a review of affirmative action in higher education over the 40 years since the germinal affirmative action case Regents of the University of California v. Bakke was decided. One of the outcomes of that case was to hold that universities may only consider race explicitly in their admissions (that is, they may only have affirmative action policies) when the purpose of those policies is to ensure the diversity of the classroom. This can be a contentious issue, especially for working-class whites who experience the disadvantages of class in a way that greatly weakens the ways in which they experience race privilege

I was especially caught by what Michal Kurlaender, Professor of Education Policy, had to say about the social science research that has been done about the effects of diversity on education and the interactions between race and education outcomes. At the time that Bakke was argued, Kurlaender said, social scientists had very little data to show that diversity does indeed have an effect on education. Since Bakke, however, a significant body of research has been developed. Studies now show the educational benefits of many types of diversity. Additionally, social science has shown significant differences in educational outcomes correlated to race, strongly suggesting that remediating past and current discrimination should be a compelling state interest that justifies the use of race.  (The Court has judged remedying the effects of discrimination not to be a compelling state interest except where there was de jure past discrimination in a district which has not reached unitary status.)

Furthermore, research has also shown that “race-neutral alternatives” such as the Texas ten percent plan, although better than nothing, are not as effective at increasing racial diversity as race-conscious policies. Using class instead of race can have positive outcomes but also is not a wholly satisfactory replacement for racially conscious admissions decisions. The effects of race and the effects of class are complex, and though they may interact, neither one can fully address all of the issues covered by the other. (For a few examples of race privilege not related to class, see the list in Unpacking the Invisible Knapsack by Peggy McIntosh.)

What do we do when research shows that the equal protection decisions which were made in the past were made on the basis of incomplete or inaccurate information? The point of equal protection is to treat like things alike. The research now shows that like people are not being treated alike in education; the disparities in outcomes on the basis of race show that systematic, and ongoing discrimination still operates to disadvantage non-whites. It seems that we should revisit some of the earlier decisions and reconsider, now that we have new information, whether remedial action for past and current discrimination can be considered a compelling state interest.

This, of course, runs counter to another legal principle: stare decisis. Once a court has made a rule, that rule is to be applied to all similar cases which come before the court. Interestingly, stare decisis is also designed to uphold the principle that like things should be treated alike. Its purpose is to ensure consistency over time. It seems unjust, however, to continue to perpetuate past decisions made using incomplete information which do not equally protect classes. It is futile to pursue justice by treating like situations alike across time when that precedent does not treat like persons alike across contemporaneous groups.

Would working-class white people be willing to accept that? It would probably be hard. Working-class white people may see stare decisis as protecting their interests in this situation. Perhaps underscoring the ways in which the principle of fairness between groups (equal protection) is similar to the principle of fairness across time (stare decisis) can help justify such a decision to constituencies who might feel threatened by such a change. Also important is to apply both fairness principles to all groups, requiring fairness also for those disadvantaged by class.