What Bar Examinees Can Learn from Today's Affirmative Action SCOTUS Decision
I’ve been a beneficiary of affirmative action in higher education.
I went to a state law school that had allocated millions of dollars to fund an arrangement it described as a "nonresident student of color tuition waiver program." Under it, nonresident minorities who met a specified academic requirement and who attended any of the university’s undergraduate, graduate, or professional schools on any of its campuses automatically received the benefit of a substantially lower tuition equivalent to what in-state residents pay. (The university eventually modified its program.)
I wasn’t an in-state resident at the time, but I checked the minority status box on my law school application indicating my Asian background. As a result, I received in-state tuition from the university, received a law degree, passed the bar exam, became an attorney, and eventually became a law professor. Not bad for a son of two immigrant parents. But my life might have been quite different had it not been for that and other affirmative action programs, even if I did not appreciate those programs at the time.
Thus, I took great interest in today’s U.S. Supreme Court decision, in which SCOTUS ruled that colleges and universities can no longer take race into consideration as an express factor in admissions.
The six-justice majority opinion is just a few hours old, and I’m still wrapping my head around some of the language.
But as I do with many of my blog posts, I want to connect the current news and events of the day to studying and preparing for the bar exam.
I won’t get into substance of the decision. Reasonable minds will agree and disagree with the decision for a variety of reasons. What I do want to do, however, is to highlight two items that stood out in reading today’s opinion that I see examinees do incorrectly when they write responses to essay questions.
First, glaringly missing from Chief Justice Roberts’ 40-page majority opinion is the term “affirmative action.” The term “affirmative action” is used to describe government action that favors racial or ethnic minorities—which exactly describes Harvard’s and UNC’s admissions policies. On the other hand, a search of the term “affirmative action” found 54 instances of that term throughout Justice Thomas’ and Kavanugh’s concurring opinions and Justice Sotomayor’s and Jackson’s dissenting opinions. I’m sure the absence of the term in the majority opinion was done purposefully. But remember the saying—“If it looks like a duck, swims like a duck, and quacks like a duck, then it probably is a duck.” So, call it a “duck”!
What should bar examinees take away? Use buzz words, just like the majority should have done by incorporating the term “affirmative action” in its opinion. I would go one step further, too, and recommend that examinees bold and underline important buzz words in their resposnes if their testing software permits those features.
Use buzz words, just like the majority should have done by incorporating the term “affirmative action” in its opinion.
Bar exam graders review hundreds of responses to the same essay question, and they typically only spend two to three minutes to review a single response—and even that’s a generous calculation of time. This means the graders are likely looking for buzz words to make their reviews go faster.
Second, the Court appropriately relied on the strict scrutiny test in reaching today’s decision (although reasonable minds can argue whether the test was appropriately examined). I say “appropriately relied” because the strict scrutiny test was the relevant test used to examine race-based classifications prior to today's opinion. And it remains the relevant test to examine race-based classifications after today’s opinion—in higher education and elsewhere.
Under the strict scrutiny test, a law will be upheld only if the government can prove that it is narrowly tailored (sometimes referred to as “necessary”) to achieve a compelling government interest. Historically, as today’s decision confirms, most governmental action examined under the strict scrutiny test fails.
The strict scrutiny test requires an examination of two separate issues: (1) whether the government has identified a compelling government interest, and (2) whether the government’s use of race is narrowly tailored or necessary to achieve that identified interest.
What should bar examinees take away? In its opinion, the Court concluded the race-based classifications used at Harvard and UNC did not satisfy the strict scrutiny test. In doing so, the Court first explained that the institutions did not identify any compelling government interests. The Court then explained that even if the institutions had a compelling government interest to have race-based classifications, their admission policies were not narrowly tailored or necessary to meet those interests.
Notice the order in which the Court examined the two prongs of the strict scrutiny test. This is worth emphasizing. First, the Court examined whether the institutions identified a compelling government interest. Second, the Court examined whether the institutions’ admissions policies were narrowly tailored or necessary to achieve that interest.
The order in which the two prongs of the strict scrutiny test is important. Too many times have I read essay responses that examine these two prongs in the reverse order, which is nonsensical. One cannot logically examine whether a law is necessary to achieve a compelling government interest if one does not even identify what the compelling government interest is in the first place.
The order in which the two prongs of the strict scrutiny test is important. Too many times have I read essay responses that examine these two prongs in the reverse order, which is nonsensical.
The same is true for the other two standards of review.
For intermediate scrutiny, examine whether there is an important government interest before examining whether the law is substantially related to that important government interest.
Similarly, for rational basis, examine whether there is an legitimate government interest before examining whether the law is rationally related to that legitimate government interest.
Thus, bar examinees should keep these two items in mind: (1) use buzz words and (2) examine issues in a logical order. As for the outcome of this case, bar examinees won't need to know the Court's decision and the rationale it used in reaching its decision for the July 2023 bar exam. See my previous blog post, "SCOTUS Expected to Restrict Affirmative Action, But Your Bar Preparation May Not Be Affected."
