Harvard Defends Race-Conscious Admissions at the Supreme Court
Credit: Fred Schilling, Collection of the Supreme Court of the United States
Credit: Fred Schilling, Collection of the Supreme Court of the United States
Editor’s note. The magazine asked lawyer and legal analyst and journalist Lincoln Caplan, a contributing editor, to report on the presentation of the Students for Fair Admissions litigation before the Supreme Court on October 31, including both the day’s oral arguments and the briefs filed earlier. Justice Ketanji Brown Jackson ’92, J.D. ’96, appearing in her first term, recused herself from the Harvard case in light of her recent past service on the Board of Overseers, but participated in the University of North Carolina case.
Affirmative action has been one of the most divisive issues in American law and politics for almost half a century. Almost five hours of searching, high-quality, sometimes cranky oral arguments at the Supreme Court Monday morning and afternoon, October 31, made clear why. They dealt with portentous cases about admissions policies at Harvard and the University of North Carolina (UNC)—Harvard, as a private institution that receives federal support, under Title VI of the Civil Rights Act of 1964, and UNC, as a public institution under the Constitution. (Prior Harvard Magazine news coverage of the cases, at the federal district and appeals courts, is linked to here.)
The dispute is whether the law requires colleges and universities to be blind to race as a factor in making admissions decisions, or allows them to be conscious of color, because of what Solicitor General Elizabeth Barchas Prelogar, J.D. ’08, told the Court is “a simple but profound truth: When students of all races and backgrounds come to college and live together and learn together, they become better colleagues, better citizens, and better leaders.”
“Our Constitution Is Color-Blind”
At the heart of the challenge to the universities’ use of race in undergraduate admissions is the claim that “Our constitution is color-blind,” as a famous dissent by Justice John Marshall Harlan put it in 1896. The Court’s momentous 1954 ruling in Brown v. Board of Education, prohibiting segregation in public schools, turned that principle into national law, according to the claim. Patrick Strawbridge, a lawyer for Students for Fair Admissions (SFFA), which brought the lawsuits, argued, “this Court’s landmark decision in Brown finally and firmly rejected the view that racial classifications have any role to play in providing educational opportunities.” Fifteen years ago, to wide attention, Chief Justice John G. Roberts Jr. ’76, J.D. ’79, restated the claim like this: “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”
To examine a program where race is a factor, the Court uses a hard-to-meet standard of legal review called strict scrutiny. Under it, the only acceptable justification for the program is if it is narrowly tailored to serve a compelling government interest. According to SFFA’s claim, race-conscious admissions policies do not meet that test, even to make a student body more diverse racially and contribute to what students of different backgrounds can teach and learn from each other.
Facts in the Harvard case, the argument goes on, make the legal challenge to the College’s admissions practices even stronger. A black applicant in the fourth lowest of ten academic groups, for example, has a better chance of admission (12.8 percent) than an Asian American (12.7 percent) in the top group. A brief for SFFA says that Harvard “admits Asian Americans at lower rates than whites, even though Asian Americans receive higher academic scores, extracurricular scores, and alumni-interview scores.” Race is not just a plus factor for blacks and Hispanics, in that view: it’s a minus factor for Asian Americans—“an anvil on the scale that dominates the entire process.” Cameron T. Norris, who argued for SFFA against Harvard, told the Court, “What Harvard is doing to Asians, like what it was doing to Jews in the 1920s, is shameful, but it’s a predictable result of letting universities use race in highly subjective processes.”
“A Caste System Rooted in the Institutions of Slavery”
In the challenges to Harvard and UNC, the elementary problem with relying on the Harlan sentence as authority for the principle of colorblindness is the crucial caveat he emphasized before that sentence in his dissent in Plessy v. Ferguson (the notorious case upholding racial segregation under the separate-but-equal doctrine). Condemning the Black Codes of the 1860s, which limited the freedom of blacks and ensured their conscription in forced labor after slavery was abolished, the justice wrote that, “in the eye of the law, there is in this country no superior, dominant ruling class of citizens. There is no caste here.” Whites made up the nation’s dominant race in prestige and power, wealth, and education. But, Harlan stressed, they could not rely on the Constitution to justify those advantages. In Brown, retired Justice Stephen G. Breyer, LL.B. ’64, wrote in a potent 2007 dissent, the Court did not prohibit race-consciousness in law. Instead, it outlawed subordination based on race, the perpetuation of “a caste system rooted in the institutions of slavery.”
Prelogar was asked her view of the claim that Brown requires ending race-conscious admissions in higher education. She did not mince words:
I think that argument is wrong in just about every respect. There is a world of difference between the situation this Court confronted in Brown, the separate-but-equal doctrine that was designed to exclude African Americans based on notions of racial inferiority and subjugate them, which, as this Court recognized, the school children affected their hearts and minds in a way unlikely ever to be undone, a world of difference between that and the university policies at issue in this case, which are not intended to exclude anyone on the basis of race or even to benefit particular racial groups on the basis of race but, rather, are designed to bring individuals of all races together so that they can all learn together and benefit from that diverse educational environment. And I think it is profoundly ahistorical to say, as Petitioners do, that those situations are precisely equivalent and it also trivializes the grievous moral and legal wrongs of state-sponsored segregation and the enormous harms that millions of Americans suffered under it.
The Court has long struck down programs taking race into account when they demean any individual or group. The civil-rights movement, a century after the Civil War ended slavery, finally secured that essential protection. But in a series of rulings, with the controlling opinions written by past conservative justices notably more moderate than those in the Court’s current super-majority of six Republican-appointed justices, the Court has allowed such programs for inclusive purposes—including racial diversity among students who are preparing to be leaders in a diverse society. The Constitution permits those measures under current case law.
From Bakke to Grutter: An Expiration Date for Race-Conscious Admissions?
As Justice Lewis F. Powell Jr., LL.M. ’32, wrote 44 years ago, in his controlling opinion in the landmark case of Regents of the University of California v. Bakke, “the path to leadership” must “be visibly open to talented and qualified individuals of every race and ethnicity.” He went on, “the ‘nation’s future depends upon leaders trained through wide exposure’ to the ideas and mores of students as diverse as this Nation of many peoples.”
Based on Powell’s opinion, the Court disallowed “racial balancing” (“reducing the historic deficit of traditionally disfavored minorities”) and “remedying societal discrimination” (President Lyndon B. Johnson’s basis for affirmative action in 1965). In allowing race-conscious policies in admissions programs seeking diversity, the Court recognized that academic freedom is “a special concern of the First Amendment” and that that freedom for a college or university “includes the selection of its student body.”
That commitment has arguably become even more important since 2003, when the Court issued its major decision about affirmative action in educational admissions, Grutter v. Bollinger—the main ruling SFFA seeks to overturn. A brief in the UNC and Harvard cases for 65 members of Congress said that “race-conscious admissions policies remain necessary” because since “Grutter, segregation in K-12 educational settings has increased, and, as a result, educational inequities have worsened.” A brief by the NAACP Legal Defense and Education Fund, which brought the Brown case to the Court, said, “Far from finding support in Brown, overruling Grutter would be at war with that decision” and “would reverse the progress toward racial integration and racial equality that have occurred in higher education in the years following Brown.”
The majority opinion in Grutter observed that race-conscious admissions policies “must be limited in time” and included this sentence: “We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.” Justin Driver, J.D. ’04, Slaughter professor of law at Yale, wrote in The New York Times that, for the sake of stability in American law, the Court has the option of treating that quarter-century limit as a sunset provision, so the Grutter precedent, in 2028, “will — on its own terms — expire in five years” from the time the Court is likely to decide the current cases, next year, and there is no need to overturn it.
Justices asked about that expiration date.
Prelogar said, “I just don’t think it’s a tenable way to read Grutter to say that the Court was suggesting that 25 years from now, poof, the interest in diversity and higher education is no longer compelling. That is and will remain a compelling interest. And Grutter observed that over time, it would be possible for schools and universities to achieve that interest without having to take race into account.” Noting in the argument about the Harvard case that “the arc of progress in society has perhaps been slower than the Grutter court imagined,” she observed that “if this Court has those concerns, it could emphasize that the narrow-tailoring requirement remains very strict in this case. Universities should be held to a high standard and a heavy burden to explore those alternatives, to put into practice the race-neutral alternatives that currently exist and to try to get to the point that the Grutter Court imagined and that we will eventually reach as a nation where it is no longer necessary to take race into account.”
Repeatedly, Justice Clarence Thomas, the Court’s senior member who is fiercely opposed to affirmative action, asked what diversity is and what benefit it has in the education of students. “I’ve heard the word diversity quite a few times, and I don’t have a clue what it means,” he said. “It seems to mean everything for everyone.”
Seth P. Waxman, ’73, solicitor general in the Clinton administration who represented Harvard, answered, “The evidence and findings in this case confirm what this Court has long recognized, that a university student body comprising a multiplicity of backgrounds, experiences, and interests vitally benefits our nation, stereotypes are broken down, prejudice is reduced, and critical thinking and problem-solving skills are improved.” Because colleges and universities are pipelines to all the major institutions in society, including the military—since ROTC programs send more officer candidates to the armed services than West Point and the other service academies combined—“Student body diversity makes our businesses more innovative and globally competitive, our scientists more creative, our medical professionals more effective, and our military more cohesive.”
Prelogar also answered the question:
I’d like to use the service academies as an example here and explain to you the concrete educational benefits that the service academies are seeking to obtain through their use of race-conscious admissions, and it really falls into two separate categories. One is the suite of benefits that the Court’s precedents have already recognized, things like increasing cross-racial understanding, which can have direct impacts on challenging stereotypes and assumptions and leading to positive developments with cognitive development that can be perceived as early as a student's second year in college. It can include things like reducing a sense of racial isolation and alienation, and that has proven educational benefits as well in terms of encouraging greater participation by minority students in a classroom environment.
And then the second category that I would point to, and this traces directly from Grutter as well, is the Court’s recognition that in order to train a set of leaders with legitimacy in the eyes of the public, it is necessary to have our leadership broadly reflect the diversity of our country. And that is a critically important interest in the military because we have had experiences in our past where the officer corps and its racial composition did not reflect the diversity in enlisted service members and that it caused tremendous racial tension and strife.
The Trial Record—and the History
In seeking to make inclusion and exclusion by race—benign as well as malign differentiation—look the same, Harvard argues, SFFA is grossly distorting the College’s affirmative-action practices. Its brief said:
SFFA resorts to a false narrative. To impugn Bakke, Grutter, and Fisher [the precedents controlling the workings of affirmative action at Harvard and elsewhere in higher education, which the organization seeks to overturn], SFFA misrepresents Harvard as obsessing over race to pursue racial balance, ignoring race-neutral alternatives, and intentionally discriminating against Asian-American applicants—discrimination that, if it occurred, Harvard would revile. But there was a trial in this case. SFFA’s allegations were resoundingly rejected.
Waxman told the Court, “Now SFFA attempts to use Harvard’s admissions program as some sort of proof that settled constitutional precedent is egregiously wrong, but while SFFA is fully entitled to its own legal arguments, it is not entitled to its own facts.”
The federal trial court in the Harvard case found that, as the University’s brief said, the College’s “admissions process survives strict scrutiny” because it is “narrowly tailored” to achieve “the academic benefits that flow from diversity,” as the law has required since 1978 (when Bakke was decided). The court also found “no evidence of any racial animus whatsoever or intentional discrimination on the part of Harvard beyond its use of a race conscious admissions policy,” which sometimes treats an applicant’s race as a plus factor, never as a negative. Contrary to SFFA’s insinuations, the court found that Harvard did not intentionally discriminate against Asian-American applicants—though, as Watson professor of law Jeannie Suk Gersen wrote in The New Yorker, “some of the evidence was troubling, suggesting at least implicit bias against Asian applicants relative to white ones.”
The United States Court of Appeals for the First Circuit, in Boston, upheld those findings. It also held that Harvard does not engage in racial balancing or use race mechanically, but instead “considers race as part of a holistic review” of a candidate’s application for admissions. The appeals court judged that Harvard “carefully considered” race-neutral alternatives and properly “concluded that they are not workable and would undercut its educational objectives.” The court wrote that “increasing the weight it places on socioeconomic background in admissions would not further Harvard’s diversity goals.” And: “[a] focus on socioeconomic circumstances that outweighed all other factors could equally reduce the depth and breadth of the Harvard class as well as its excellence in many dimensions.”
A recurring question of justices during the oral arguments on October 31 was the extent to which Harvard has used race-neutral practices to expand the diversity of the College’s students. The answer is: Extensively. But to reach a level of racial diversity similar to what it now achieves, the appeals court summarized, “Harvard would need to give applicants from lower socioeconomic backgrounds such an extreme tip,” or plus in the admissions process, “that it would ‘overwhelm other considerations in the admissions process’ and result in ‘significant changes in the composition of the admitted class.’ Harvard would admit substantially fewer students with the highest academic, extracurricular, personal, and athletic ratings.” If the Supreme Court strikes down Harvard’s use of race as a plus factor in admissions, both lower courts found, it will be hard for the College to maintain the breadth and depth of diversity it now enjoys in its student body.
Justice Neil M. Gorsuch, J.D. ’91, asked about the history of Harvard’s use of holistic admissions practices and whether, when the College “wanted to impose a quota on Jewish applicants,” it had “used diversity as a subterfuge for racial quotas.” Waxman replied, “Harvard acknowledges and is ashamed, that in 1920, one of its presidents, President Lowell, decided that there were too many Jews and that they were then going to start asking questions on the application that would allow them to take into effect character. The notion that that bears at all on the way that Harvard’s current admissions process, which uses a 40-person admissions committee that meets and decides each application en banc, in discussion, has any resemblance whatsoever to the racist anti-Semitic policy of a single Harvard president is insubstantial, as the courts found.”
What Society Has at Stake
A brief in the UNC and Harvard cases for historically black colleges and universities (HBCUs) said: “Contrary to Petitioners’ [SFFA’s] suggestion, the fact that HBCUs provide a high-quality education to many Black students is no reason to conclude that race-conscious admissions policies are no longer needed at institutions like Harvard and UNC. HBCUs are selective and cannot accept every student that will be excluded from other universities if race is no longer considered as part of a holistic admission process. Petitioners’ suggestion that HBCUs can do so is, in essence, a call for re-segregation in higher education.”
In 2015, the last year the Supreme Court heard argument about affirmative action in higher education before reaffirming it, then-Harvard President Drew Gilpin Faust wrote in the New York Review of Books that many Americans “seem to be taking an unprecedented look at the nation’s past, at the legacy of slavery and race that has made us anything but a colorblind society.” She alluded to a theme of Justice Thurgood Marshall’s opinion in the 1978 Bakke case: “Measured by any benchmark of comfort or achievement, meaningful equality remains a distant dream for the Negro.” He wrote, “For it must be remembered that, during most of the past 200 years, the Constitution as interpreted by this Court did not prohibit the most ingenious and pervasive forms of discrimination against the Negro. Now, when a state acts to remedy the effects of that legacy of discrimination,” or a university contributes to its diversity and to the development of future leaders through race-conscious admissions, “I cannot believe that this same Constitution stands as a barrier.”
Striking down race-conscious affirmative action in admissions would boost that barrier enormously, by reading regressive meaning back into the Constitution. It would require turning a blind eye to the blunt reality that the United States remains “anything but a colorblind society.” Elizabeth Prelogar told the Court:
For the United States military, as I’ve explained, having a diverse officer corps is a critical national security imperative. For corporate America, diversity is essential to business solutions. For the medical community and scientific researchers, diversity is an essential element of innovation and delivering better health outcomes. Overruling Grutter would have devastating effects on our nation’s efforts to move ever closer to a more perfect union where our nation’s diversity is a source of its greatest strength.
She said, “So I think it’s absolutely the case that the business community, that every aspect of society, would feel the shockwaves if this Court were to retreat from Grutter now.”