Admissions on Trial
Affirmative Action has been one of the most divisive issues in American law and politics for nearly half a century. Almost five hours of searching, sometimes cranky oral arguments at the Supreme Court on October 31 made clear why. They dealt with portentous appeals brought by Students for Fair Admissions (SFFA), following its earlier trial losses in lawsuits against 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.
This latest chapter in a series of cases that poses the most direct challenge to the College’s admissions practices since the 1970s had a new wrinkle. Because she was a Harvard Overseer, Associate Justice Ketanji Brown Jackson ’92, J.D. ’96, recused herself from the Harvard case; the cases were separated so she could participate in the UNC litigation.
Central to 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.”
At the heart of the challenge to the 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 SFFA, 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.”
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 learn from each other.
Facts in the Harvard case, the argument continues, make the legal challenge to the College’s practices even stronger. A black applicant in the fourth lowest of 10 academic groups, for example, has a better chance of admission (12.8 percent) than an Asian American (12.7 percent) in the top group. Race is not just a plus factor for blacks and Hispanics, in that view: it’s a minus factor for Asian Americans. 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.”
The argument about the meaning of Brown and Harlan’s dissenting language in Plessy v. Ferguson (the notorious case upholding racial segregation under the separate-but-equal doctrine) is not as cut-and-dried as SFFA and other advocates suggest. As retired Justice Stephen G. Breyer, LL.B. ’64, wrote in a 2007 dissent, the Court in Brown 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.” During a powerful moment in the Harvard case, 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…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.”
Beyond differences over this fundamental matter, the justices were interested in an almost technical-seeming issue (which could become the basis for a compromise ruling). In the seminal 1978 case, Regents of the University of California v. Bakke, Justice Lewis F. Powell Jr., LL.M. ’32, wrote in his controlling opinion that “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 his 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). But it allowed race-conscious policies in admissions programs seeking diversity, recognizing that academic freedom for a college or university “includes the selection of its student body.”
In 2003, the Court issued its major decision about diversity-based affirmative action in educational admissions, Grutter v. Bollinger—the main ruling SFFA seeks to overturn. The majority opinion in Grutter permitted race-conscious admissions policies, such as those used by Harvard and UNC, but directed that they “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.”
Questions about that deadline elicited this perspective from Prelogar: “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.” But in the SFFA cases, justices looking for an alternative to overturning a Court precedent might simply rule, likely this summer, that the clock will in any event run down five years hence.
Clearly, some justices do want to reverse the prior decisions. Justice Clarence Thomas, the Court’s senior member and a fierce opponent of affirmative action, repeatedly attacked its basic premise. “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.” (Chief Justice John G. Roberts Jr. ’76, J.D. ’79, and Justices Samuel A. Alito Jr. and Neil M. Gorsuch, J.D. ’91, are also thought to be sympathetic to SFFA’s arguments.) 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.”
In its brief, Harvard strenuously objected to SFFA’s characterization of its practices: “SFFA resorts to a false narrative.… 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.”
In their inquiries on October 31, the justices questioned 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.
Now the justices will draft opinions. Although the popular handicapping suggests that the Court will outlaw race-conscious admissions, other outcomes are possible. As noted, it could defer to the 25-year Grutter timeline. A surprise possibility, President Lawrence S. Bacow told the Faculty of Arts and Sciences on November 1, would be a split decision. Justices Elena Kagan, J.D. ’86, and Sonia Sotomayor are considered certain to side with Harvard and UNC. With Justice Jackson recused, two more votes (which would likely have to come from Justices Amy Coney Barrett and Brett M. Kavanaugh) would result in a tie—leaving in place the lower-court rulings in Harvard’s favor.
Whatever standard emerges, Bacow said, Harvard will comply with the law, remaining “true to our values as best we can.”
Read a full analysis of the oral arguments by contributing editor and legal journalist Lincoln Caplan 72, J.D. ’76, with links to prior Harvard Magazine coverage of the cases, at harvardmag.com/admissions-arguments-22.
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