The US Supreme Court’s decision in Fisher v University of Texas, released on Monday, has received much international attention. As Claire Overman and Reva Siegel explain in their recent posts, the decision was not the end to race-based affirmative action in the US that many feared, nor was it the ringing endorsement of Grutter that many had hoped for. The case has been remanded to the Court of Appeals where it will resume its slow climb up the judicial ladder, generating even more attention along the way.
While lawyers outside the US have followed the case closely, the truth is that this decision and the decisions to come will have no real impact on discrimination law in other countries. The US Supreme Court’s approach to race-based affirmative action, and discrimination law more broadly, is already so far outside the international mainstream that few courts or legislators ever look to it as a source of inspiration. In this post I will explore the three features of the US approach, clearly revealed in Fisher, that separate it from this mainstream.
The first is the US courts’ obsession with the appearance of race-blindness and the belief, endorsed by the majority in Fisher, that all racially-based distinctions are inherently wrongful, requiring meticulous justification. In his concurring judgment, Justice Thomas went so far as to suggest that there was no meaningful difference between the University of Texas’ admission programme and 1950s-style school segregation.
These views are not widely shared by courts and law-makers outside the US. The International Convention on the Elimination of Racial Discrimination (CERD) provides that measures to advance disadvantaged racial groups are not discriminatory. In a similar vein, the South African, Indian (primarily in the context of caste) and Canadian constitutions, among others, expressly authorise affirmative action measures, recognising that equality requires concerted efforts to address existing patterns of racial disadvantage.
2) Strict scrutiny
The US Supreme Court subjects all racially-based distinctions to ‘strict scrutiny’, an intense form of judicial review, as a result of its belief that all of these distinctions are inherently wrongful. Only those racial distinctions that serve a ‘compelling’ purpose and are ‘narrowly tailored’ to this purpose are allowed. This is in contrast with jurisdictions such as Canada, South Africa, and India where courts have adopted far more deferential standards of review. For example, in Canada, racially-based distinctions are permissible so long as they are rationally connected to an ameliorative purpose and are targeted at disadvantaged groups (R v Kapp ). These deferential approaches are often based on the express constitutional authorisation of affirmative action, combined with courts’ aversion to interfering with such complex issues of social policy—an aversion that the US Supreme Court does not share.
3) Diversity as the be-all and end-all
Finally, the US Supreme Court has significantly narrowed the legal debate over racially based affirmative action by entrenching the ‘educational benefits of diversity’ as one of the only ‘compelling interests’ that can justify these measures. Many weighty reasons for affirmative action recognised by courts and law-makers around the world are banished from the legal debate in the US. The need to compensate for racial discrimination in society is, according to the majority in Grutter and Fisher, not a good reason, as are the needs to address existing racial inequalities, to promote role models, or to make state institutions representative of the communities they serve, among others. As one commentator describes it, ‘[t]he diversity rationale kept affirmative action afloat [in the US], but it sank any chance of an honest exploration of the reasons we might need it.’
As comparative law scholars will be quick to remind us, the mere fact that the US approach is outside the mainstream is not itself a reason to reject it. Nonetheless, the gulf between these approaches and their underlying assumptions means that, in reality, few lawyers, courts, or law-makers outside the US will seriously look to Fisher and the associated case law for guidance, apart from using it as a distancing device, showing that ‘this is not us’.
Given this lack of legal relevance, what accounts for non-US lawyers’ fascination with Fisher? One explanation is that the US Supreme Court’s warring factions of conservatives and liberals always provide good judicial drama, particularly on an issue as charged as affirmative action. Perhaps a deeper explanation is that we are all nostalgic for a time when US discrimination law actually had something to teach the rest of the world.
Chris McConnachie is a South African DPhil candidate at Lincoln College, University of Oxford. He is also an editor of the OxHRH Blog.
The International Convention on the Elimination of Racial Discrimination (CERD) provides that measures to advance disadvantaged racial groups are not discriminatory.
In which case, the CERD has redefined the meaning of the English word “discriminatory”.