Enforcing the Coming Affirmative Action Bans: A Modest Proposal

In the wake of the recent opinions in Dobbs, BruenCarsonWest Virginia v. EPA, and Kennedy, there is no serious question that originalism is not only ascendant but firmly in control in the Supreme Court. As a result, most seasoned court watchers and constitutional law scholars agree that it is highly likely that SCOTUS is going to overrule GrutterFisher II, and perhaps even Bakke, and hold that racial discrimination in higher education admissions decisions violates both the Constitution and Title VI of the Civil Rights Act of 1964.

While such would be welcome and long overdue, it is highly unlikely that even a full-throated denunciation of affirmative action by the Supreme Court is going to cause most universities to suddenly abandon the discrimination that they not only practice but consider to be a moral imperative. As law professor and United States Commission on Civil Rights Commissioner Gail Heriot observes:

Many university officials consider their support for discriminatory standards to be a sacred duty. It would be naive to expect them to stop simply because the Supreme Court finally gets around to recognizing that this kind of race discrimination is illegal. They will either continue exactly as before or switch to an admissions policy that is facially race-neutral but in fact intricately engineered to produce their desired racial result.

Unfortunately, history shows that Prof. Heriot is almost certainly right. The Supreme Court declared almost four decades ago that while colleges had some leeway in admissions decisions, racial discrimination in employment decisions was illegal. In Wygant, the high court explicitly rejected arguments in favor of racial discrimination in educational employment decisions for the “right’ reasons—such as having “role models” for various demographic groups—and held that such practices violated the law, period. Yet today, such overt Kendian discrimination in employment is practically universal on college campuses, with university administrators freely and publicly admitting to practices that Wygant unambiguously declared illegal a generation ago.

Similarly, despite California voters passing a ban on racial preferences in university admissions in 1996 (and soundly defeating recent efforts to reverse such bans), no one seriously believes that California universities are not continuing to use racial preferences (as well as other illegal criteria) for not only admissions but also virtually every other aspect of campus life. Indeed, fealty to the creed of DEI—complete with its Kendian ethos that the solution for past discrimination is present and future discrimination—is effectively required for admissions, employment, promotion, and funding in California state universities (as well as those in many other states, blue, red, and purple). Failing to sufficiently support such principles is enough for the campus diversity commissars to try and get you canceled. Except for tenured professors at the top of the food chain, opposing discriminatory practices on moral or legal grounds all but guarantees cancellation of some form. In the case of Joshua Katz, even tenure wasn’t enough.

Given the near-monolithic acceptance of DEI as official university policy, it is all but certain that most will view a Supreme Court decision declaring affirmative action illegal to be apostasy. Like the diehard segregationists in the wake of Brown v. Board of Education, many university administrators (and probably all of their burgeoning DEI infrastructure) will consider it a moral duty to evade and resist that decision.

[Related: “Race Consciousness Hangs by a Thread”]

With these battle lines being drawn, what can be done? Certainly, test cases will be brought and litigated, and many practices may be enjoined. But litigation is extremely expensive and exceedingly slow, particularly if you have to sue a wealthy university on its home turf. Moreover, even defeat typically costs the individuals responsible for violating the law nothing (especially public institutions, where taxpayers foot the bill for the administration’s virtue-signaling).

Prof. Heriot has suggested some wise legislative fixes at the federal level, such as prohibiting university accreditors from mandating “diversity” and abolishing federal subsidies that encourage affirmative action programs.

I suggest that only much more severe consequences will bring universities to heel—ones that could make resisting the law an existential financial issue for many universities and individuals. While it cannot be adopted federally given current political realities, it very well could be in many red states, particularly ones where wokeism is especially unpopular. (These are broad principles that would have to be refined in legislative text to address the inevitable necessary exceptions, etc.)

A Modest Proposal

This law would apply to all institutions of higher education in the state. [Alternative: all such institutions with enrollment or endowments exceeding certain thresholds.]

First, for all covered institutions, preferential treatment based on race, ethnicity, national origin, gender, religion, age, disability, sexual preference, or political belief or affiliation in admissions, employment, promotion, tenure, awards, or funding decisions or practices are declared to be illegal. There are no exceptions for preferential treatment of “underrepresented,” “disfavored,” or “oppressed” groups.

Second, if an institution is shown to have exhibited a pattern of such discrimination (i.e., at least a certain threshold number of predicate acts, as opposed to an isolated individual incident) after the effective date of the law, then all students enrolled during the period when such a discriminatory pattern occurred (e.g., Fall Semester 2023) shall be entitled to recover fifty percent of all tuition and fees paid to the institution during that period.

Third, any persons (including third-party consultants, administrators, and professors) shown to have been knowingly involved in the discriminatory acts or practices that formed the pattern are personally liable for statutory damages of the greater of $100,000 or their highest annual compensation from the institution, or five times such amounts if any portion of such liability is indemnified or covered by any contractual or other reimbursement obligation. For public employees, there is no sovereign or qualified immunity from such suits.

[Related: “Lowery v. Texas A&M University System: The Beginning of the End of DEI Discrimination?”]

Fourth, suits to enforce this law can be brought in any county in the state where such a beneficiary student resides (i.e., the institution need not be sued on its home turf). Such suits would have a statute of limitations of two years from when the discriminatory pattern was or could reasonably have been discovered and a ten-year statute of repose.

Fifth, such suits can be brought directly by the state attorney general, as a qui tam action by any student who would be a beneficiary of this law, or by any whistleblower inside the institution. If brought as a qui tam action against a non-state institution, the state attorney general would have 120 days to decide to assume the prosecution of the case, and if it elected to do so, the qui tam plaintiff would receive a finder’s fee of 10% of all amounts recovered (with the qui tam plaintiff retaining the right to intervene and object to any settlement proposed by the attorney general). If the attorney general declines to prosecute a suit against a non-state institution, or if a qui tam action is brought against a state institution, the qui tam plaintiff would be entitled to recover 30% of all funds recovered, with the recovery going to the state comptroller to distribute to the qui tam plaintiff and the balance distributed pro tanto to beneficiary students.

Sixth, to combat frivolous or abusive qui tam suits, such suits will be subject to a strict “loser pays” provision covering attorneys’ fees and costs of court, with provisions allowing the court to require the plaintiff to post a bond covering the estimated amount of such costs.

Obviously, these are just the broad strokes of this modest proposal, but the concept is simple. Currently, both universities (especially public ones) and woke administrators have little or no economic disincentive that would stop them from “resisting” anti–affirmative action law and engaging in sub rosa conduct that continues their desired DEI discrimination. This proposal creates such disincentives, a-la an Eastwoodian choice:

Yeah, you might be able to keep things secret. You might be able to stonewall things. You might even catch a break on the jury panel. But being that you are now facing the economic equivalent of a .44 magnum at point blank range, you have to ask yourself one question: “Do I feel lucky?”

Well, do ya, wokester?


Image: Adobe Stock

Louis K. Bonham

Louis K. Bonham is an intellectual property litigator. He is a graduate of the University of Texas (BA ’83, JD ’86), was an Articles Editor on the Texas Law Review, and served as a law clerk to the Hon. Edith H. Jones of the US Court of Appeals for the Fifth Circuit.

16 thoughts on “Enforcing the Coming Affirmative Action Bans: A Modest Proposal

  1. Many university officials consider their support for discriminatory standards to be a sacred duty…They will either continue exactly as before or switch to an admissions policy that is facially race-neutral but in fact intricately engineered to produce their desired racial result.”

    That would be the real Jim Crow 2.0. Oh, the irony!

  2. My first response is that the title is misleading. I would call it “A No Holds Barred” proposal.
    The issue of affirmative action, I have argued most of my 40 years in higher ed as a professor and dean, is affordability and access. Affirmative action attempts to even the playing field for those applicants who have been disadvantaged during their K-12 education. Its problems derive from the fact that most (all?) colleges have a certain number of slots for entering students, so if one slot goes to a student who comes from an impoverished socio-economic background gets admitted, one less student from a well-healed family with a similar SAT and GPR does not. This becomes a racial issue only because as we all know Black American Families have but a small fraction of wealth compared to white families and therefore do not have the ability to take SAT prep scores or focus on the SAT’s in school as part of their curriculum; i.e. SAT’s correlate best with household income.
    Other forms of affirmative action do not involve race as directly, such as student-athlete and legacy applicants.

    My real difficulty with those who cast affirmative action as discrimination against white or Asian applicants is that this is a distraction (intentional by some) from the real issue of providing affordable education on the basis of applicant talent and merit. The real issue is that talent and merit are difficult to measure so admissions officers take the lazy way around and use short-cut metrics like SAT (which long ago dropped its original name the Scholastic Aptitude Test because the only tangible aptitude it measures is that of test-taking and practice. ). GPR’s as well are difficult to compare between schools. However there is also a tell in the way admissions officers favor well-healed households and well-resources school districts: students can score 5 points out of 4 if they take AP or honors courses. Since schools are funded through local property taxes, it is obvious that school disctricts with average home value of $500k have twice the tax base of those that have average home values of $250k.

    The answer simply lies in the complex problems of socio-economic inequity and the over-pricing of Higher education. (The latter is another problem I have written about, but simply put: since 1980 the federal and state governments have starved public education, and passed on the expense to the colleges, who in turn pass it onto families through over-selling usurious loans as part of Financial Aid).

    Finally, the author betrays any real interest in solving this problem by ending it with his “Wokester” quote. Students are People, too my friend.

    1. Where to begin . . .

      First, the comment asserts policy arguments for race-based affirmative action. The essay, on the other hand, is focused on how to compel obedience of the law if, as expected, SCOTUS overrules Grutter and Bakke and outlaws the practice. Those are two completely different issues. Indeed, the comment pretty nicely proves the need for something like the modest proposal — even if racial preferences are declared illegal, administrators like the commentator will assert that the court was just “wrong,” and justify continuing what they are doing. (The ghost of George Wallace smiles.) Sorry, but university administrators are not above the law.

      Second, so many unsupported assumptions. E.g., schools in affluent areas inherently have greater funding from their larger property tax base. Not necessarily. Look at Texas, where the state “Robin Hood” law means that affluent districts have to send a huge portion (often the majority) of their property tax receipts to the state for redistribution to poorer districts, and thus are indeed subsidizing those districts.

      Or his foundational assumption that all or even most beneficiaries of race-based preferences are from lower socioeconomic families. Any actual data on that? Isn’t equating lower socioeconomic standing with race rather, well, racist?

      If universities want to give preference for socioeconomically disadvantaged applicants, then just do that. Why should poor whites (yes, they exist, and actually the total number of poor whites exceed the number of poor Blacks in this country) and other truly socioeconomically disadvantaged applicants be passed over so that people like Obama and his children, or the children of wealthy recent immigrants from Africa, can receive racial preferences in admission?

      As for his last comment, the “wokester” facing the Eastwoodian choice would be the administrator (apparently like the commentator) who believes he is morally justified in “resisting” a SCOTUS decision on racial preferences he does not agree with. “Students” aren’t the ones making those admission decisions.

  3. “shall be entitled to recover fifty percent of all tuition and fees paid to the institution during that period.”

    Universities would shortly double the cost of tuition. Not a problem, as it’s mostly taxpayers who foot the bill.
    And so no punishment at all.

    How about we get back to universities as the primary lender? If they want to provide loans to students unlikely to pay them back, then they have that option.

    I suspect DEI will become much less sacred once it has an associated cost. When someone else is paying the tab, the Surf and Turf dinner becomes the only acceptable choice.

  4. > First, for all covered institutions, preferential treatment based on race, ethnicity, national origin, gender, religion, age, disability, sexual preference, or political belief or affiliation in admissions, employment, promotion, tenure, awards, or funding decisions or practices are declared to be illegal.

    I would remove “religion” from that list — keeping it there would give atheists a tremendous degree of leverage to attack religious schools, which is of particular concern if this is a proposal specifically for red states — and look very carefully at the wording of “age,” so that some smart aleck teenager doesn’t end up hauling a school into court over the eminently reasonable decision not to admit someone who’s too young to be at college yet.

    Otherwise, that looks like a pretty good idea.

  5. Not likely that refunds of tuition/fees will be considered sufficient penalty by the institutions. Instead, direct the penalty at institutional leadership and bureaucracy: 1) cut board member compensation by 75%; terminate all benefits for policy-setting leadership; cut the staffs of departments implementing the discrimination by 50%.

  6. We should have a process to revoke the tax exempt status of educational institutions found to have unconstitutionally discriminated.

    1. Just like we have actively support the practice of rescinding the tax exemptions of churches that actively endorse political parties, particular candidates and particular ballot initiatives? Oops my bad, we only want these policies to be enforced against our ideological enemies.

  7. Just deny federal money to institutions that don’t follow the constitution. No need for a Rube Goldberg contraption of a law.

    1. If that were doable anytime soon, sure. But do you think the Biden admin (or any Dem admit) is going to? And even when DeVos tried to start making some baby steps in that direction, look at the roadblocks that were created by DoEd fixtures, not to mention RINO squishes in Congress.

      OTOH, look at places like Texas. GOP is going to sweep all statewide races by double digits, and very likely will pad their already sizeable majorities in both houses of the state legislature. Wokeism is not polling well, especially with the Hispanic community, and sharp Texas GOP politicos realize that anti-wokeism is a winning issue for them. With the right Sherpas shepherding the legislation (by design, it’s hard to pass anything in Texas), something along these lines that creates private rights of action (and individual liability, as Texas *does* has the power to waive immunity for its own employees / agencies) against such scofflawery *is* doable. (Cutting off state funding doesn’t mean jack for non-state universities — they are not dependent on state funds like they are for federal funds / student loans. And the politicos aren’t gonna cut off state money that flows to state schools in their districts.)

      (The obvious way to solve it in Texas would be for the Texas Governor to appoint some serious reformers / overseers to the boards of regents of state schools, and have them crack the whip. Unfortunately, Greg Abbott has shown zero interest in doing so.)

      Start with something like this in red states like Texas, Florida, Tennessee, Georgia, and others, and watch what happens.

  8. Loser pays, even without having to post a bond, will nullify the law. It’s hard enough to sue a university as it is now.

    I prefer something along the lines of the Defense of Scouting Act — mandate that ED/OCR enforcement. That would require impeachment of the current head of OCR and possibly threatening to not fund the Higher Ed Act.

    I think the bigger issue will be the mob violence, it’s going to be like May of 1970.

    1. What are we going to do if mob violence and/or threats thereof are used to drive out cisgendered/heterosexual White males?

      Universities are very good at ignoring political violence and if the White students “choose” not to attend, then they can admit the wait-listed Black students.

      1. I know what the response would be in Texas (and likely Florida).

        In 2020, when the leftists that control the City of Austin were making noises that it might not prosecute or stop Antifa violence or shut down any CHAZ type “occupations,” Gov. Abbott quickly made it clear that the state police and if necessary the Texas National Guard **would** step in and maintain public order. And the Texas Legislature (with big GOP majorities in both houses) started talking up stripping Austin of the right to control its own police department, with it being put under the control of the state police (and the cost for Austin policing taken directly from Austin’s share of state sales tax revenues), if Austin carried out its threat to go all Portland/Seattle on the issue.

        And guess what? Austin quietly backed down, and Antifa decided to take their roadshow elsewhere. Were UT, for example, unwilling to stop actual mob violence on / around campus, you’d see the UT police force put under DPS control VERY quickly, and DPS troopers deployed if necessary.

        The kinds of sustained mob violence you envision occur only when the politicians are either afraid or unwilling to quell it. Down here (and in many other red states), that’s not the case. And that’s not even considering that in this part of the world, threating someone with deadly force runs a significant risk that your target will respond with deadly force and knows how to apply it — as one Antifa-type in Austin found out the hard way.

    2. Take it from someone who has worked on major business cases on a contingency fee basis for many years . . . .

      If there was a private right of action to bring qui tam suits for what could be *very* big bucks against universities with multibillion dollar endowments, and you did not have to sue on the university’s home turf, the plaintiff’s bar would be all over this in a heartbeat. You would see them lining up litigation finance syndicates (yup, they exist, and are largely funded by hedge funds) to front the money for the bond in the right cases. I also think you would see well-funded public interest groups (e.g., Ed Blum’s organization) also willing to do so (again, in the right cases).

      Part of the design of the “modest proposal” is that it also yokes one of the most potent forces in human behavior: greed. Say you are an insider at Enormous State University, and are privy to the secret machinations of the ESU diversicrats to evade the prohibitions of the law and continue their holy crusade of DEI. Before, blowing the whistle would just get you shunned and blacklisted; no real upside for you to do so. Under the modest proposal, you now have a *huge* financial incentive to do so: your share of a successful qui tam suit could well set you up for life financially.

      And the ESU diversicrats (who, under the modest proposal, would face massive **personal** liability for their “resistance” activities) would have to constantly worry that anyone who knows of their plans — including the other diversicrats in their ESU coven — may well sell them out. The paranoia that would engender by itself would likely cripple le resistance.

      The threat of personal liability / sellout by insiders also provides the university administration the excuse to finally say no to the wokesters . . . “look, we agree with you, but if we do what you ask / demand then ESU is at serious risk of getting creamed financially, and so we just can’t do it.”

      And that’s how you affect real change to their behavior: make the real costs of being “woke” outweigh the psychic benefits of virtue signalling.

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