Teresa Sullivan: Liberalism Then and Now

Lest it be thought that the principles Sullivan articulated in these articles were somehow limited to the arcana of annuities and pensions, her second article noted that “one of us” (her husband, Douglas Laycock) had discussed their belief in the “stringent prohibition on the use of race and sex” at length in another longer and more philosophical article, "Taking Constitutions Seriously: A Theory of Judicial Review," 59 Tex. L. Rev. (1981), a fifty-one page review of John Hart Ely's Democracy and Distrust. Endorsing “the individualistic equal protection that emerges from the constitutional text,” Laycock flatly rejected Ely’s view that the Equal Protection Clause “confers benefits on blacks and other suspect classes that it does not confer on whites and other non-suspect classes” and his corresponding conclusion “that Title VII of the Civil Rights Act of 1964 does not prohibit all reverse discrimination.” Ely’s fundamental error, Laycock argued, was his focus “on groups rather than individuals.”

Anticipating the reply that the colorblindness he endorsed would inhibit racial progress, Laycock argued:

It is no answer to say that Ely's construction is more likely to produce social and economic equality in the long run. That statement, which I do not concede, is comprehensible only in terms of equality for groups. But the constitutional command is equality for individuals. Moreover, it is the "protection of the laws" that must be equal, not social and economic statistics.

In her 1980 article discussed above, Sullivan cited, with unqualified approval, Sen. Hubert Humphrey’s insistence during the debate over the Civil Rights Act of 1964 that "the meaning of racial or religious discrimination is perfectly clear .... [I]t means a distinction in treatment given to different individuals because of their different race, religion, or national origin.” But by 2006, as provost at Michigan, in an affidavit challenging the Michigan Civil Rights Initiative, she professed confusion over the meaning of “shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity or national origin.” Sullivan found that requirement, according to a brief filed in the case, “simply too puzzling to be implemented.”

In short, the contradiction between her earlier and later view of civil rights could not be more stark. The essence of engineering “diversity,” after all, uses race and ethnicity “as cheap proxies for traits with which they are correlated,” regards individuals “as part of a racial, sexual, religious, or ethnic group,” requires treating them “differently because of [their] membership in such a group,” acts on the belief that “diversity” is “more important than nondiscrimination,” and thus violates what Sullivan repeatedly argued is the “most fundamental principle” of civil rights law and tradition.

Writing about Hopwood several years after it was decided (but before it was effectively overruled by the Supreme Court in Grutter in 2003), Laycock revealed how far he and Sullivan had traveled from their earlier views by arguing that affirmative action didn’t discriminate against very many people (an argument I’ve addressed here, here, and here). “With more than 4000 applicants a year,” he wrote, “affirmative action for a hundred or so of them has little effect on everybody else.”

Perhaps not, but it had a dramatically negative effect on those “hundred or so” Asian and white individuals every year who were “treated differently” because of their “group affiliation,” and would have been admitted but for their race, but were denied admission to make room for less qualified students whose race or ethnicity was used “as cheap proxies” for other qualities. Indeed, Laycock’s view that a policy’s racial discrimination doesn’t matter much (“has little effect”) if there are only “a hundred or so” victims of it a year “is comprehensible only in terms of equality for groups,” a position he so effectively criticized in his review of Ely.

Since the Supreme Court has held many times that race cannot be preferred “for its own sake,” if it chooses to rein in Grutter rather than throwing it out, one way it could do so would be to require universities to list with some specificity precisely the traits and characteristics for which they desire to use race and ethnicity as proxies. That would allow admissions officers, through the magic of “holistic review,” to inform candidates like Abigail Fisher exactly how and where they are “diversity” deficient. If the Court chooses to go that route, or even better, to reject “diversity”-justified discrimination altogether, it will find much useful supporting argument and evidence in the early writings of über diversicrat Teresa Sullivan.