The Affirmative Action Cases
The end is nigh for affirmative action as we know it.
This week, the Supreme Court heard oral arguments in two affirmative action (AA) cases, one involving the University of North Carolina at Chapel Hill and the other, Harvard University.1 It is a virtual certainty that, sometime in the first half of 2023, the Court’s conservative majority will write an opinion that, once and for all, does away with affirmative action in its current form.
To put my cards on the table at the start, and to no one’s surprise, I am sure, I support AA generally, and specifically in the way it is used to guide admissions policy at places like UNC. For many years, critics of AA have decried it as “quotas,” and even neutral accounts sometimes slip into using that language. The Supreme Court’s 1978 Bakke case, in which a divided court said race could be a factor in admissions, specifically banned quotas in admissions settings, a ruling the 2003 Grutter case broadly affirmed. So, a holistic approach to admissions that includes race as a consideration has been in use at UNC, Harvard and elsewhere. The Supreme Court will say in the next few months that it is no longer allowable to do so.
A few notes on these cases and the larger issue:
1.A month into her tenure on the Supreme Court, Justice Ketanji Brown Jackson is emerging as an especially astute interrogator. At oral argument Monday, she challenged Patrick Strawbridge, the attorney for Students for Fair Admissions, which sued Harvard and UNC., on the consequences of barring the inclusion of race as a factor. From Eugene Robinson’s account yesterday, here’s the hypothetical Justice Jackson posed to Strawbridge:
One applicant writes in his essay that it is important to him that he be admitted because his family has lived in North Carolina since before the Civil War and he would be the fifth generation of his family to proudly attend UNC. Another applicant writes that his family, too, has lived in North Carolina since before the Civil War, and it is important to him that he attend UNC because he is the descendant of enslaved people and his ancestors were barred from attending the university. Was Strawbridge arguing that the university could give preference to the first candidate but not to the second?
After hemming and hawing, Strawbridge said that, yes, the first would be allowable, but the second would not, since the legacy of slavery could not fairly be applied to an evaluation of students born in 2003 (though apparently those same students born in 2003 can invoke the Civil War to make their admissions case).
As Jackson observed, this singling out of race as the only factor that *can’t* be considered might itself constitute a violation of the equal protection clause of the fourteenth amendment. We’ll come back to the fourteenth amendment below.
2. Writing in Slate, Dahlia Lithwick and Mark Joseph Stern dissected the flimsy legally reasoning of the conservative bloc this week. As the Slate authors note, the most straightforward ostensible justification the conservative justices provided for ending AA is that, at some point, by God, we just need to get over race. This is the logic that motivated Chief Justice John Roberts’ majority opinion gutting the Voting Rights Act (VRA) in the Court’s 2013 Shelby decision - there’s no further need to scrutinize voting laws in parts of the country that previously required it, because we’ve come so far since then. (And oh, well, too bad that literally within a day of that ruling, many of the formerly covered jurisdictions of the VRA started passing new laws to try to restrict voting rights).
When the Court upheld a version of AA in the 2003 Grutter case, then Justice Sandra Day O’Connor predicted that it wouldn’t be necessary twenty five years hence. But that was just a hope, a wish, a notion. O’Connor didn’t articulate any legal test by which we would know when, in 2028 or otherwise, we’d reached the point at which American society had sufficiently overcome its racial inequities to make AA unnecessary. Nevertheless, as Lithwick and Stern report, the conservative justices seized on that 2028 “sell-by” date this week as if it had legal force. That included Justice Amy Coney-Barrett who, according to Lithwick and Stern, “characterized O’Connor’s language as a ‘self-destruct mechanism’ that expires in 2028 but also - in the view of the court’s conservatives, has already run out today.”
This reliance on some clear end date, Lithwick and Stern argue, is premised on the idea that the fourteenth amendment itself was intended merely to ensure that race cease to be a factor at all in how government operates.
But that’s simply “ahistorical nonsense,” Lithwick and Stern write, in describing both Jackson’s and Justice Sonia Sotomayor’s articulation of the meaning of the fourteenth amendment. Jackson and Sotomayor noted that its purpose was to provide a race-conscious remedy for the previous exclusion of Black Americans from the fundamental rights of American citizenship, an assertion Lithwick and Stern note Coney-Barrett herself did not dispute. But when it’s inconvenient for them, these frequent apostles of “original intent” don’t seem all that interested in what the weight of the evidence suggests about what the framers of the Civil War amendments, including the fourteenth, intended. So, instead, we get simplistic bromides like that asserted by Chief Justice Roberts in a 2007 AA case, that “the way to stop discriminating on the basis of race is to stop discriminating on the basis of race.” Roberts trotted out a version of that logic in an extraordinary exchange at oral argument this week with Seth Waxman, defending Harvard’s policy before the Court. When Waxman said that Harvard makes various exceptions in its admissions policy, including to oboe players. Roberts replied: “Yeah…we did not fight a civil war about oboe players. We fought a Civil War to end racial discrimination, and that’s why it’s a matter of considerable concern.”
As my buddy IY correctly put it to me in a text, in response to Roberts statement: “the Civil War wasn’t fought to end racial ‘discrimination’ but to eliminate racial oppression and subjugation.” In effectively denying that reality, the Chief Justice of the United States’ highest court professed to believe that efforts to somewhat increase the number of underrepresented minorities in institutions of higher education reflects the very mindset and legal framework that engendered slavery. It’s simply astonishing.
3. This is not to deny that, for many ordinary folks, AA *seems* unfair. Indeed, polling shows AA to be broadly unpopular, including among non-Whites. One reason for that, I think, is that many people simply don’t like the idea that someone alive today should be made to pay a price for past wrongs for which they have no personal responsibility. The highly individualistic nature of our political discourse reinforces that sense of injustice.
But once you dig into the reality of how an admissions office puts together a cohort of students, it becomes much harder to identify exactly who is being "punished" in the process of implementing AA. To illustrate what this looks like in practice, take the case of Abigail Fisher. Fisher was the Texas student who sued the University of Texas at Austin after they denied her admission in 2008, in a case in which the Supreme Court ultimately ruled against her in 2016.2
Fisher, who had a 3.59 high school GPA and scored an 1180 on her SATs, finished outside the top ten percent of her class at a Texas high school. Texas law has stipulated that the top ten percent of each high school class gets automatic admission to all publicly-funded Texas universities, including UT-Austin, the state’s flagship campus. That approach is meant to ensure diversity at UT-Austin by drawing its student body from schools around the state, including the more under-resourced ones in impoverished areas. Students like Fisher, who don’t make it in automatically are subject to a holistic review in which race is a factor. When Fisher failed to get in via that process, she blamed it on AA and sued. But was Fisher’s rejection a result of AA? As Nikole Hannah-Jones wrote in a 2013 article about the case, in the year that Fisher applied, forty-seven students with lower scores were admitted through holistic review to UT-Austin. Of those 47, 42 were White. And 168 Black and Latino students with the same or better scores than Fisher also didn’t get in that year by the same process. So, how did Fisher know that AA was the reason she was denied entry, or to put it more pointedly, how did she know the slot she believed she was entitled to was taken by a Black student? She didn’t know, because she couldn’t know.
Americans tend to think of admissions as a series of one-on-one mortal combat style decisions. But it doesn’t work that way. Admissions officers consider individual applicants, and they consider a cohort of students to admit each year as a whole. Americans generally have a hard time, at least in some contexts, with the idea that policies with broader social benefits involve necessary tradeoffs that might impact some people differently than others. So, reducing policies like AA to a series of individual decisions that are either fair or unfair to individual applicants makes such policies particularly susceptible to criticism since you can always find some head-to-head “matchup” that wrongs someone, if you pull it out of its broader context.
4.Once AA is gone, admissions offices will continue to try to find ways to construct broadly diverse classes of students. But the fact is that places like UNC are likely to admit fewer Black students in the years ahead. That’s because, incredibly, the Supreme Court’s conservative majority believes it’s the price such students must pay for the legacy of the Civil War and the long history of racial discrimination to which Black Americans are still uniquely subject, a legacy that those same students in particular may not invoke to explain how they came to be who they are.
The conservative Texas billionaire, Edward Blum, has been the driving force behind the Harvard and UNC cases, raising millions of dollars through the vehicle of an organization he created, Students for Fair Admissions. He also played a significant role in getting the Shelby case to the Supreme Court in the hopes of undermining the Voting Rights Act.
The information here about the Fisher case comes from this 2016 piece by Jia Tolentino.