Ending affirmative action?

Like the debate over abortion rights, affirmative action in college admissions procedures is one of the most controversial political and cultural issues in the U.S. today. Most observers believe that the current super-majority of conservative Supreme Court justices now reviewing two cases will end the practice. They involve a private institution, Harvard University, and a public one, the University of North Carolina, Chapel Hill. We can expect a decision by June 2023.

Critics claim that the use of race in college admissions amounts to reverse discrimination. It penalizes mostly qualified white students because it allows members of other races to win seats at the expense of white applicants. 

Advocates respond that affirmative action for white students, especially white males, is not new. It has been around for generations, at the exclusion of minorities and women. Affirmative action, they argue, is inclusive, not exclusive. 

Early on, affirmative action was designed to overcome the remnants and effects of past discrimination. It was supposed to level the playing field by ending racial inequality, racial exclusion, and systemic bias in American society. Today, the focus is on diversity.

Learning in a classroom with people from diverse backgrounds teaches everyone how best to conduct their future personal and professional lives, whether it is in business, the military, education, or government. Besides, admissions officers do not admit any unqualified applicants. Aside from members of the majority white community, diversity includes representatives of underrepresented minority students, such as African Americans, Hispanic Americans, and Native Americans. For some, it also includes Asian Americans.

Funded by Edward Blum and wealthy sponsors he recruited, the cases were taken to the court by his Students for Fair Admissions: they claim that Harvard discriminates against Asian Americans, while UNC does so against white and Asian Americans.

Blum is no stranger to the court. In the 1990s, he lost a congressional race in a majority-minority district, and then successfully challenged the district, claiming it was racially gerrymandered. In 2013, he funded a successful challenge to the Voting Rights Act of 1965. In Shelby County v. Holder, the court’s conservative majority ruled that several states (mainly Southern) and subdivisions with histories of voter discrimination no longer had to seek Department of Justice permission to change their election laws. The result has been the implementation of several voting restrictions in the formerly covered jurisdictions.

Blum also challenged a Texas college admission program, allowing all high school graduates in the top 10 percent of their class to attend the University of Texas in Fisher v. University Texas at Austin. One seat on the court was vacant because of the death of Justice Antonin Scalia, and Justice Elena Kagan recused herself after having worked on the case in the U.S. Justice Department. By a narrow four-to-three vote, the justices ruled in 2016 that the program did not violate the 14th Amendment’s equal protection clause.

But now, with three new justices, all nominated by former President Donald J. Trump, joining three others who oppose affirmative action, the court may well end the practice.

Justice Lewis F. Powell first affirmed the use of race in college admissions in the 1978 Bakke decision. The case concerned a numerical set-aside admissions program at a California medical school. Powell deemed the use of race as one characteristic among many others permissible to create a racially diverse student body. He wrote that “the nation’s future leaders should be trained through wide exposure to the ideas and mores of students as diverse as this Nation of many peoples.”

Twenty-five years later, another challenge to an admissions program appeared at the court. In 2003, Justice Sandra Day O’Connor ruled that the University of Michigan School of Law developed a program along the lines envisioned by Justice Powell: Race may be used as one factor among many others (Grutter v. Bollinger), such as grades, standardized test scores, teacher recommendations, work experience, rural versus urban living, and so on. O’Connor noted that there is “a “compelling interest in obtaining the educational benefits that flow from a diverse student body.”

But all six conservative justices engaged in harsh questioning of the lawyers representing Harvard and UNC during oral argument on Oct. 31. Clearly, there is a six-justice majority to end the practice, with one slight exception. In her Grutter ruling, O’Connor noted that it had been 25 years since Bakke was decided. Now, 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.”

Yale Law Professor Justin Driver claims that Chief Justice John G. Roberts Jr. will persuade a bare majority of the court conservatives to rule that the use of race in college admissions must end that year. If Driver is correct, it does not matter whether affirmative action ends in 2023 or 2028. In both instances, college and university admission officers will have to seek alternative methods to achieve a diverse student body. Currently, nine states, including Florida and California, have laws prohibiting the use of race in college admissions, and try to use other measures to achieve diversity.

None of them successful.

Jack Fruchtman, who lives in Aquinnah and taught constitutional law and politics for over 40 years, in 1991 wrote an op-ed piece for the Baltimore Sun titled, “The liberal case against affirmative action,” which focused on quota systems.