The U.S. Supreme Court has begun its new term (it does so the first Monday of each October), and it soon will hear oral arguments in the case of Fisher v. University of Texas. The Court’s decision in the case could be a turning-point in its jurisprudence of affirmative action, and perhaps a political turning-point for the nation. At issue is the legality of using race as a basis for preferring one candidate over another in college and university admissions.
A great deal has and will be written about the doctrinal questions at issue Fisher, particularly how the case differs from those the justices have considered in previous disputes about racial preferences. I’d like to offer a global, comparative view.
The issue in Fisher, in essence, is whether from a constitutional perspective the United States ought to resemble India or France. For years, the United States has pursued a middle course between the two nations with regard to race-based preferences. The current Court is now likely to hold that the United States ought to resemble France—which will be something of an irony given the Court’s conservative majority (conservatives in the United States not being known for their Francophilia).
India and France represent two poles in the global constitutional debate about race-based preferences. The constitutions of both nations advance the principle of equality as a basic value—they assert that like persons ought to be treated alike. But the countries understand the meaning of equality in fundamentally different ways.
The Indian constitution presents what might seem like a contradiction. Article 15 ensures that the state “shall not discriminate against any citizen on grounds only of religion, race, caste, sex, [or] place of birth” (emphasis added). Article 14 more generally guarantees that the state “shall not deny to any person equality before the law or the equal protection of the laws”—thus echoing Amendment 14 of the U.S. Constitution, which guarantees that “no person” shall be denied “the equal protection of the laws.” These provisions might seem to suggest that the Indian government can never lawfully distinguish between people on the basis of race or caste.
But thanks to the constitution’s founding father, B. R. Ambedkar, the Indian constitution positively requires such discrimination in favor of traditionally subordinate groups (see Articles 330-42). In legislative representation, civil service employment, and university admissions, a significant percentage of positions are set aside for what in American terms would be deemed racial minorities. If the United States followed Indian principles in the realm of higher education, fifteen percent of spaces in public universities would be reserved for Latino applicants (the number would be much higher in western states if the policy were implemented on a state-by-state basis). Thirteen percent of spaces would be reserved for African-American applicants. If Germany followed the same path, five percent of its university positions would be reserved for Turks or Germans of Turkish descent.
France takes the opposite course. The principle that race should never be used as a basis for distinguishing between citizens is so strong that the nation doesn’t even keep official race-based statistics for demographic purposes. Want to know what percentage of the French prison population is of Algerian descent? Don’t ask the state. The use of race to distinguish one citizen from another is regarded as such a derogation of human dignity that such statistics aren’t gathered.
This thoroughgoing color-blindness has deep roots in French constitutionalism. The Declaration of the Rights of Man (1793) guarantees that all citizens are equal before the law, “equally admissible to all public dignities, public positions and occupations, according to their capacity and without distinction other than that of their virtues and of their talents.” The Constitution of the Fifth Republic ensures that citizens are equal before the law “without distinction based on origin, race, or religion.”
Although France recently explored the possibility of adopting American-style, race-based affirmative action programs in its elite universities (and explored the possibility, too, of amending its constitution to allow such preferences), the idea was rejected. The French state knows no distinction between persons based on race.
The United States has long taken a middle course between India and France with regard to race and race-based preferences. The Court has allowed preferences in some contexts and under certain circumstances but disallowed them in others. Within the narrow conditions sketched by the Court in its 2003 decisions in Grutter v. Bollinger and Gratz v. Bollinger, preferences have been permitted in higher education admissions, but with limits. Although quotas like those used in India are forbidden, university admissions officers can take race into account as a factor in an overall “holistic” evaluation of each individual applicant’s file.
As applied to the higher education context, the American constitution thus has been neither Indian nor French. The Fisher case will go a long way toward determining whether America will continue to plot this middle course, or whether—as is likely—it will pursue a course consistent the policies of a nation many conservatives regard as anathema. In this, Fisher will no doubt offer one of the many ironies that come into view when one regards constitutional law from a comparative perspective.