On Not Dreaming of Affirmative Action

Is there anything new to say about affirmative action? As a purely legal matter, the answer is probably “Not much.” The story of current doctrine and its evolution is widely known and obsessively recounted, and the commentary on that story is voluminous. The majority and dissenting opinions in the Fifth Circuit’s decision in Fisher v. University of Texas at Austin represent the latest attempt to apply a framework established by prior cases for affirmative action by public universities. If the Supreme Court chooses to review that decision again, the questions at issue will be whether the benefits are large enough, and the state interest compelling enough, to justify the continuing injection of race into the University of Texas undergraduate admissions process. But, for the reasons explained in this Article, whatever the Court decides—if it decides anything at all—will not matter much to the future of educational affirmative action. State law bans, such as those enacted in California and Michigan, although they might have more bite, will likewise not succeed in completely eliminating the use of racial affirmative action. Racial identity will continue to be a factor in university admissions and beyond. At this point, the law is virtually irrelevant to actual practice on the ground. How did we arrive at the present juncture? In decades past, the ambit of active controversy for race was wider, and the rationale broader. Affirmative action was proposed for employment, government contracting, and education, and the policy was subject to robust debate within and outside the courtroom. Initially, the principal question was whether affirmative action could be justified as a reme-