Footnote 43: Recovering Justice Powell’s Anti-Preference Framing of Affirmative Action

For more than four decades, scholars have been debating the constitutional parameters of affirmative action. Central to this debate is Justice Powell’s opinion in Regents of the University of California v. Bakke. For good or bad, that opinion has set not only the doctrinal terms on which lawyers litigate and judges adjudicate the constitutionality of affirmative action, but the normative terms on which many in the public arena discuss the policy as well. However, in all the controversy and contestation over affirmative action, little attention has been paid to footnote forty-three of Justice Powell’s Bakke opinion. There, Justice Powell suggested that “[r]acial classifications in admissions conceivably could serve a fifth purpose . . . fair appraisal of each individual’s academic promise in the light of some cultural bias in grading or testing procedures.” While elsewhere in Bakke Justice Powell consistently described affirmative action as a “preference,” in footnote forty-three he maintained that if “race and ethnic background were considered only to the extent of curing established inaccuracies in predicting academic performance, it might be argued that [affirmative action is] no ‘preference’ at all.” For the most part, scholars have ignored this footnote. Moreover, no Supreme Court justice has ever referenced footnote forty-three, and only one judge has cited it. This neglect is unjustified. Footnote forty-three could be to affirmative action case law what United States v. Carolene Products Co.’s footnote four has been to debates over the remedial scope of equal protection jurisprudence more generally — an analytical, normative, and doctrinal anchor. More precisely, footnote forty-three could fundamentally shift the debate about affirmative action in important ways. For one thing, footnote forty-three provides doctrinal support for the reframing of affirmative action away from the misleading conceptualization of the policy as a preference to a more appropriate understanding of affirmative action as a countermeasure. Such a countermeasure conceptualization would make the application of strict scrutiny to affirmative action normatively and doctrinally suspect and would give proponents of affirmative action offensive, rather than merely defensive, arguments in support of the policy. Finally, taking the implications of footnote forty-three seriously could, and should, shape the next wave of affirmative action litigation, including the trajectory of the lawsuits against Harvard University and the University of North Carolina. Drawing on footnote forty-three, this Essay urges progressive scholars, lawyers, and judges to do what, for the past forty years, they have largely not done: force conservatives — on and off the courts — to affirmatively defend, rather than merely take for granted, their claim that affirmative action is a racial preference. That defensive posture would require conservatives to rebut an alternative claim — a claim with ever-growing empirical backing — that affirmative action should be understood as a countermeasure that mitigates the inequality problems Justice Powell articulated in footnote forty-three by improving the degree to which admissions regimes effectuate a “fair appraisal of each individual’s academic promise.”