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The End of Affirmative Action Is Only the Beginning

Yet again, the Supreme Court’s conservatives just get rid of precedents that they don’t like.

Photo: Eric Lee/Bloomberg via Getty Images
Photo: Eric Lee/Bloomberg via Getty Images

The Supreme Court has made clear, once again, that conservatives control the Court, and that they will continue their movement’s decades-long project to reverse legal precedents that they simply do not like. Last year, it was the overruling of Roe v. Wade. On Thursday, the six conservative justices held that affirmative action programs in higher education are unlawful, and in particular, that they violate the Constitution’s Equal Protection Clause.

The court for decades, as recently as 2016, had upheld college admissions programs that take race into account as one factor among many. Why this sudden change? As a practical matter, two things happened. First, a conservative activist named Edward Blum, who had been trying and failing to engineer this outcome for decades, continued his effort, this time partially reframing his crusade as an effort to combat discrimination against Asian Americans in the admissions process. And second, the composition of the Court dramatically changed after Donald Trump got Justices Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett on the bench, resulting in the majority that issued Thursday’s ruling.

The decision technically involved two different cases — one involving Harvard College’s admissions program, and the other involving the program at the University of North Carolina. UNC is a public institution — the first in the nation, in fact — while Harvard is private but receives federal funding. Both schools have (or had) elaborate selection processes that took race into account as one factor among many, but in the end, any distinctions between the two appear to have been immaterial to the conservative justices.

The majority opinion, written by Chief Justice John Roberts, offers an ostensibly straightforward analysis. The Fourteenth Amendment, adopted after the Civil War, prevents the government from denying “to any person … the equal protection of the laws,” including discrimination on the basis of race. Even though the amendment was passed in an effort to rectify the historic subjugation of African Americans, including their government-sanctioned enslavement, in Roberts’s account the “core purpose” of the clause was to prevent any sort of racial discrimination, even if it is intended to benefit a group that was historically suppressed by the American government in ways so shameful and invidious that the effects remain potent and durable to this day. The result is a maddeningly simplistic analysis that is devoid of any serious review of American history or any recognition of the country’s actual, ongoing struggle with racial equality. “Eliminating racial discrimination,” Roberts writes, “means eliminating all of it.”

Though the conservative majority does not seem to care, the legal analysis is itself built on a series of missteps and concessions to conservatives in the Court’s jurisprudence in this area. The problems stretch back to 1978, when the Court considered the admissions program at the University of California and ultimately held in its Bakke decision that strict racial quotas were impermissible but that the use of race as a qualitative “plus factor” was acceptable. The Court splintered, failing to produce a majority opinion, but Justice Lewis Powell, who had been appointed by Richard Nixon, wrote a concurring opinion that ended up serving as the intellectual template for decades to come.

In that opinion, Powell rejected the goal of “remedying … the effects of ‘societal discrimination,’” which he called “an amorphous concept of injury that may be ageless in its reach into the past.” Instead, he concluded that the constitutionally permissible basis for race-based college admissions was, as Roberts writes, “obtaining the educational benefits that flow from a racially diverse student body.” In 2003, the Court issued two landmark decisions addressing the issue again. In a 5-4 decision written by Justice Sandra Day O’Connor (an appointee of Ronald Reagan), the Court upheld an admissions program at the University of Michigan using race as a “plus factor” in law school admissions. A separate decision struck down the undergraduate school’s use of a points-based admissions system. In her opinion upholding the law school’s program, O’Connor indicated that these programs should have temporal limits. “It has been 25 years since Justice Powell first approved the use of race to further an interest in student body diversity in the context of public higher education,” she wrote. “We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.”

That line has since been converted into something like an unalterable edict by conservatives who opposed the decision, and Roberts’s opinion relies crucially on it. “The importance of an end point was not just a matter of repetition,” he writes. “It was the reason the Court was willing to dispense temporarily with the Constitution’s unambiguous guarantee of equal protection.”

Thus, Roberts writes, “University programs must comply with [constitutional] strict scrutiny, they may never use race as a stereotype or negative, and — at some point — they must end.” Harvard and UNC’s systems, he writes, “however well intentioned and implemented in good faith — fail each of these criteria.”

Roberts proceeds to reject the idea that a racially mixed student body enhances American higher education and trains more effective and empathetic leaders in our society. Those interests, he writes, “though plainly worthy, are inescapably imponderable.”

He also takes issue with the racial classifications themselves, observing that they are “imprecise in many ways.” For instance, he argues that “by grouping together all Asian students,” the schools are “apparently uninterested in whether South Asian or East Asian students are adequately represented, so long as there is enough of one to compensate for a lack of the other.”

The purported experience of Asian American applicants figures prominently in the decision. The race-based admissions systems, he writes, also run afoul of the Equal Protection Clause because “race may never be used as a ‘negative’” and “may not operate as a stereotype,” but according to the appellate court’s ruling in the Harvard case, the college’s consideration of race “led to an 11.1% decrease in the number of Asian-Americans admitted” to the school. “College admissions are zero-sum,” he writes. “A benefit provided to some applicants but not to others necessarily advantages the former group at the expense of the latter.”

It is worth noting here that this was heavily contested by groups devoted to representing the interests of Asian Americans. In an amicus brief submitted to the Court, the Asian American Legal Defense and Education Fund wrote that Blum’s group had “not brought this case to achieve equity for Asian Americans” but instead “brought this case to make it easier for white students to get into the college of their choice,” with the lawsuit representing “a transparent effort to cling to the advantages that whites have maintained since the nation’s inception.” Blum’s group, they charged, “deploys harmful stereotypes of the Asian American community in service of eliminating policies that benefit Asian Americans and proposes a ‘race-neutral’ admissions policy that ultimately benefits white applicants.” Needless to say, the conservative justices’ opinion today does not meaningfully grapple with any of this, choosing instead to pit this group against Black applicants — the very thing that Blum hoped to achieve in framing his legal attack.

In the end, Roberts’s majority opinion concludes that both the Harvard and UNC admissions programs “lack sufficiently focused and measurable objectives warranting the use of race, unavoidably employ race in a negative manner, involve racial stereotyping, and lack meaningful end points.” “We have never permitted admissions programs to work in that way,” Roberts writes, “and we will not do so today.”

The decision closes with a final effort to make this look less dramatic than it is, with Roberts writing that “nothing in this opinion should be construed as prohibiting universities from considering an applicant’s discussion of how race affected his or her life, be it through discrimination, inspiration, or otherwise.” The connection, however, must be specific: “A benefit to a student who overcame racial discrimination, for example, must be tied to that student’s courage and determination.” It therefore appears that if you are a minority applicant, you will need to be able to demonstrate that you, in particular, were the victim of racial discrimination, which is of course a super-easy thing to do.

Make no mistake: The implications here, upending nearly 50 years of jurisprudence, will be dramatic, and will extend beyond college admissions. Nine states already prohibited affirmative action in admissions, including California, Michigan, and Florida, and schools in those states have since struggled to maintain a diverse student body without programs that take race into account.

Some schools in those states have instead relied on race-neutral criteria, including family income and whether applicants would be the first in their families to attend college, but progress has been slow. A dean at Michigan Law School recently told Reuters that the prohibition on affirmative action in the state had “dealt us a powerful blow” and that in the intervening 16 years since the state’s ban, they had “been slowly, slowly trying to come back to where we were before we had to go race blind.”

Thursday’s opinion will also surely spawn more challenges to race-based programs designed to increase racial and ethnic diversity in areas entirely distinct from the context of college admissions. The Wall Street Journal recently reported that Blum already has one pending lawsuit that “aims to end diversity requirements on corporate boards in California” and that he plans to file another soon that “seeks to stop corporations from limiting internships to specific minorities.” We should expect many more lawsuits in all sorts of settings, from Blum and others. We should also anticipate that their odds of success will be significantly higher given the sweeping language in Roberts’s decision, which could be mapped onto all sorts of other legal and social contexts.

As with the overruling of Roe, we are now sure to see a nationwide scramble to adjust to — and mitigate the fallout from — the ruling. A lot could be gained by schools ending legacy admissions either voluntarily or in response to a federal ban, but do not hold your breath: Legislative efforts in this area have recently been tried and failed, though perhaps renewed public and political attention in the wake of the Supreme Court’s decision might shift the dynamics.

In the meantime, brace yourself for the aftershocks of another legal earthquake courtesy of the Court’s conservative majority.

The End of Affirmative Action Is Only the Beginning