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An Affirmative Action Endgame?

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An Affirmative Action Endgame?

The Supreme Court has a chance to end racial discrimination in university admissions. January 25, 2022
Education
Politics and law
The Social Order

The Supreme Court has agreed to hear two cases challenging racial preferences in university admissions. It’s an important move that could pave the way toward restoring the equality principles that our Constitution and laws afford. The Court granted petitions for writs of certiorari in lawsuits brought by the nonprofit Students for Fair Admissions against Harvard University and the University of North Carolina and consolidated the cases into one.

Lower courts had rejected both challenges, citing Supreme Court decisions that allow colleges and universities to consider race in a narrowly tailored way to promote diversity. The Trump administration had backed the Harvard plaintiffs and initiated a case alleging discrimination against Asian and white students at Yale. The Biden administration dropped the Yale lawsuit and filed a brief urging the Supreme Court not to take the Harvard case.

The Harvard case alleged that the school discriminated against Asian-Americans by accepting them at lower rates than any other racial group, while giving preference to black and Hispanic students with lower grades. Though Harvard is a private rather than state institution, it is barred from discriminating on the basis of race by Title VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d), which prohibits discrimination by “any program or activity receiving Federal financial assistance.” Harvard admissions officers consistently gave Asian-American applicants the lowest marks on a subjective “personal rating.” Nonetheless, the First Circuit Court of Appeals held that “Harvard’s limited use of race in its admissions process in order to achieve diversity . . . is consistent with the requirements of Supreme Court precedent.”

The North Carolina case claimed that the state-run university gave preferences to minority students to the detriment of Asian and white applicants. Three months ago, a federal District Court held that the school’s program was a legitimate attempt to produce a diverse student body. The plaintiffs appealed directly to the Supreme Court, hoping that the justices would hear the North Carolina case with the Harvard case.

The consolidated cases present an opportunity to reverse more than 40 years of state-sanctioned racial discrimination in higher education. The Supreme Court will have to narrow or reverse a long line of judicial precedents allowing universities to favor selected racial and ethnic groups over others in admissions policies by claiming that they are promoting diversity.

The precedents date back to the 1978 Supreme Court case of Regents of the University of California v. Bakke, in which an applicant to medical school claimed he was unfairly denied admission due to the medical school’s practice of reserving 16 of 100 seats for minority students, some of whom had lesser academic credentials than he did. The Court held that institutions could use race as a factor in admissions in pursuit of the purported educational benefits of having a diverse student body, but also that they could not employ a quota system.

Since then, universities have dropped affirmative-action programs with overt quota systems but continued programs that grant racial preferences. Several Supreme Court decisions have upheld such programs: Gratz v. Bollinger(2003), Fisher v. University of Texas (2013), and Fisher v. University of Texas, or “Fisher II” (2016) dealt with undergraduate programs; Grutter v. Bollinger (2003) looked at law school admissions.

The court decided the most recent case, Fisher II, by a 4-3 vote (Justice Elena Kagan was recused and Justice Antonin Scalia had recently died). Only two of the four-justice majority—Stephen Breyer and Sonia Sotomayor—remain on the Court. We can expect Justice Kagan to join them in upholding affirmative action. But the three dissenting justices in Fisher II—Samuel Alito and Clarence Thomas, along with Chief Justice John Roberts—joined by newer Justices Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett, comprise a majority that may cast a skeptical eye on racial preferences.

The time for a change in direction is long overdue. Both Justice Sandra Day O’Connor, writing for the majority in Grutter, and Justice Ruth Bader Ginsburg, writing in concurrence, respectively expressed a hope that affirmative action could end within 25 years or a generation. Grutter was decided 19 years ago. Since then, conscious, institutional bias against minorities has been largely eliminated, and most institutions are committed, perhaps excessively so, to eliminating even unconscious bias.

State-sponsored discrimination against any group in the name of diversity has become a less compelling interest than it was in the time of Grutter. We should reassert the precepts of the Equal Protection Clause to shield all races and ethnicities from unfairness. As Chief Justice Roberts wrote in 2007 in reviewing a Seattle school system affirmative-action plan, “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”

Photo by Jessica Rinaldi/The Boston Globe via Getty Images

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