Education

The Supreme Court Gets Ready To End Affirmative Action


The Supreme Court has agreed to hear two cases seeking to end race-based affirmative action in higher education. The group Students for Fair Admissions (“SFFA”) is challenging the admissions programs at Harvard University and the University of North Carolina. Because Harvard is private, it isn’t governed by the rules of Constitution, so SFFA is suing the university under the federal civil rights statute Title VI. They are suing the University of North Carolina under both Title VI and the Equal Protection Clause of the United States Constitution. Previous posts have addressed the suit against Harvard so this post will focus on the suit against UNC.

Make no mistake, SFFA is going for the home run. They want the Court to rule that race-based affirmative action inherently violates the Equal Protection Clause. They are not merely asking for the Court to pare race-conscious admissions back. In a 2003 case called Grutter v. Bollinger, the Supreme Court reaffirmed that universities can use race as a factor in admissions as long as they don’t use racial quotas and have a good faith educational theory for why they take race into account. SFFA begins their petition to the Court by framing the issue as “Should this Court overrule Grutter v. Bollinger, and hold that institutions of higher education cannot use race as a factor in admissions?”

SFFA then lists a string of quotations by Supreme Court Justices in earlier cases strongly questioning the wisdom of race-conscious admissions. They quote Chief Justice Roberts as writing: “It is a sordid business, this divvying us up by race”. They quote the Court’s only African Justice, Clarence Thomas as writing: “[E]very time the government places citizens on racial registers and makes race relevant to the provision of burdens or benefits, it demeans us all.” And they quote the late Justice Antonin Scalia as writing: “[D]iscrimination on the basis of race is illegal, immoral, unconstitutional, inherently wrong, and destructive of democratic society.” So, there is no finesse here—this case is a frontal assault on the constitutional legitimacy of the use of race in university admissions.

University of North Carolina admissions officers have done themselves no favors in the way they discuss race among themselves. The SFFA petition is replete with quotations from on-line chats among admissions officers that would leave a bad taste in many people’s mouths. Among them are:

—“perfect 2400 SAT All 5 on AP one B in 11th”

—“Brown?!”

—“Heck no. Asian.”

—“Of course. Still impressive.”

Another quotation reads: “Still yes, give these brown babies a shot at these merit $$.”

Yet another reads: “with these [underrepresented minority] kids, I’m trying to at least give them the chance to compete even if the [extracurriculars] and essays are just average.

And another reads: “If its brown and above a 1300 [SAT] put them in for [the] merit/Excel [scholarship].”

There are plenty of reasonable arguments in favor of race-based affirmative action, but a common argument against them is that the preferences end up demeaning the very minorities they are supposed to be helping. Hearing the admissions officers chatting about “brown babies” and extra efforts to admit minorities with “just average” credentials, while referring to “brown” applicants as “it” may put the Court in a receptive mood for these arguments.

After displaying these quotations for the Justices, SFFA moves in for the fatal blow. They argue: “Grutter’s core holding—that universities can use race in admissions to pursue student-body diversity—is plainly wrong.”

SFFA takes an additional tack against affirmative action. In the Grutter case, the majority wrote that: “the Court expects that 25 years from now, the use of racial preferences will no longer be necessary.” Grutter is a 2003 case, so that would be 2028. SFFA uses this against UNC, writing: “UNC also disagrees that race-based admissions are ‘a temporary matter’ that should ‘terminate … as soon as practicable.’ Since Grutter, UNC has not decreased its use of race, and its racial preferences have no end in sight.” In other words, if the Court really wants universities to be winding down race-based affirmative action this decade, they will have to force the issue because universities show no sign of winding it down themselves.

So, the situation looks pretty bleak for the future of race-conscious admissions, especially with a conservative six-person majority. But there is some hope for it to continue. The Court may well overrule Roe v. Wade soon and it may be reluctant to overrule two major precedents in the same term. And some of the more moderate conservatives on the Court may balk at banning race-based admissions while allowing blatantly unfair practices like legacy preferences to continue. Nevertheless, there is a strong possibility that race-based affirmative action will be ruled unconstitutional very soon.



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