In its 1978 Bakke case, the Supreme Court created and condoned racial preference—“affirmative action” and “diversity”—in university admissions. Now the Court is hearing a fundamental challenge to this widespread and now ever-increasing practice in education and in society.
As for the membership of the Court in what may turn out to be landmark decisions in the twin cases set for oral argument, it has not been otherwise noticed that only Justice Clarence Thomas continues on the Court from the 2003 Grutter v. Bollinger decision, which condoned a continuation of racial affirmative action in higher education. Added to that is the fact that the margin of victory in Grutter was razor thin, 5-4, and that the four dissenting justices each wrote separate dissenting opinions. The cases for argument are Students for Fair Admissions v. Harvard and Students for Fair Admissions v. University of North Carolina. The plaintiff, Students for Fair Admissions, which will be referred to herein as SFFA, is an organization representing Asian-Americans.
In Grutter, Justice Sandra Day O’Connor, writing for the Court, famously said the “Court expects that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.” In its brief in support of the two universities, Harvard and the University of North Carolina (UNC), whose admissions of Asian-Americans are at issue, the Biden administration, however, abandons such hopes and advocates a still more race-conscious higher education… and country.
The Court has split the two cases into separate oral argument sessions because new Justice Ketanji Brown Jackson recently completed a term on Harvard’s board of trustees. She will participate in oral argument and the decision in the North Carolina case only. So, could there be contradictory, contemporaneous Supreme Court rulings on race, an issue of the highest pre-eminence between the two cases? Three weeks ago, in the oral arguments in the Alabama voting rights and redistricting case of Merrill v. Milligan, Justice Jackson foreswore any strategy of a measured assimilation of herself into the practices and rhythms of oral argument of the Court. She dominated the proceedings from start to finish, as the argument transcript shows. At one point, she went well beyond questioning and engaged in an ad-hoc lecture, criticizing the “race-neutral or race-blind” construction of Equal Protection: “I don’t think that the historical record establishes that the founders believed that race neutrality or race blindness was required.” Such statements have obvious direct implications for the two university cases at issue here.
Bakke: A landmark ruling of one justice
In Regents of the University of California v Bakke, the Supreme Court ruled that a racial quota for minority students applying for admission to the University of California’s medical school at Davis violated the Equal Protection Clause and Title VI of the Civil Rights Act of 1964, which prohibits racial discrimination in state programs and institutions receiving federal funds. White applicant Allan Bakke alleged that he had been denied admission because of a racial set-aside of 16 places for minorities. What is still likely unprecedented in the history of the Court is that a single view, that of Justice Lewis F. Powell in Bakke, has governed a major institution of society, higher education, ever since. Writing for the Court, Powell, joined by Justices John Paul Stevens, Warren Burger, Potter Stewart, and William Rehnquist, rejected numerical quotas and ordered Bakke’s admission. Powell held that under both the Constitution and Title VI, “race or ethnic background” may be deemed a “plus” in a particular applicant’s file as “one” of the “pertinent elements of diversity.” But in their concurrences agreeing to the admittance of Bakke, those four “concurring” justices said only that racial discrimination of any kind was absolutely prohibited by Title VI and that therefore no constitutional ruling was necessary.
For the four other justices—William Brennan, Byron White, Thurgood Marshall, and Harry Blackmun—Justice Brennan wrote what can accurately be described as their 1978 version of what is today’s systemic-racism and reparations viewpoint. Reluctantly joining with Powell in order to have five votes establishing the constitutional basis for race-conscious admissions in higher education, Brennan, specifically referring to Powell’s language about the mere “plus” status of race, said that such a limitation “should not and must not mask the central meaning of today’s opinions: Government may take race into account when it acts not to demean or insult any racial group, but to remedy disadvantages cast on minorities by past racial prejudice, at least when appropriate findings have been made by judicial, legislative, or administrative bodies with competence to act in this area” (emphasis added).
In Supreme Court affirmative-action cases, the two most important of which are discussed below, in the forty-four years since Bakke, the question has always been and continues to be: How truly have the universities followed Powell’s limited use of race? Or have elaborate admission procedures successfully covered up what is in fact the alternative view of the four justices represented in the Brennan opinion?
In Bakke, Powell coined the concept of “diversity” as a legal principle in higher education. Today, in 2022, “diversity,” and its offspring “diversity, equity, and inclusion” (DEI) is now mainstream and central in every public and private institution in the country, especially at the highest levels. On his first day in office, President Biden signed an executive order initiating several government-wide programs in equal opportunity based on “the diversity of the American people.” He issued an executive order in June 2021 to “strengthen the federal workforce” by promoting “diversity, equity, inclusion, and accessibility.” Two weeks ago, the Transportation Department released a 105 page blueprint emphasizing “diversity of thought” and “participant diversity” concerning public involvement in transportation decision making.
In his opinion, Powell, although stating that “racial and ethnic distinctions of any sort are inherently suspect,” concluded, on the other hand, that “the attainment of a diverse student body… clearly is a constitutionally permissible… goal for an institution of higher education.” Holding forth on education more generally, he continued: “The atmosphere of “speculation, experiment and creation”—so essential to the quality of higher education—is widely believed to be promoted by a diverse student body.” He did not explain—nor has any one ever explained—why race should produce a diversity of intellectual perspective.
Powell, however, did refer in passing to the principle of ‘no new discrimination’ as a remedy for past discrimination, which was the fundamental basis of the civil rights movement and the federal civil rights laws enacted in the 1960’s. He said that helping “victims of societal discrimination does not justify a classification that imposes disadvantages upon persons like [Bakke], who bear no responsibility for whatever harm the beneficiaries of the special admissions program are thought to have suffered.” Today, that principle, the protection and standing of contemporary people who are themselves personally innocent of any racial intent or harm, is, of course, now absolutely forbidden by the superseding principles of systemic racism, reparations, and racial preferences that rule today.
Bakke spawned a line of cases, the two most important of which, Grutter v. Bollinger (2003) and Fisher v. University of Texas (2016) (Fisher II), are explicitly at issue in oral arguments set for Monday.
Forever a race-based nation?
It was the Grutter case that finally brought the murky and contradictory constitutional pronouncements of Bakke into full consideration and argument—fifteen years after Bakke. In 2003’s Grutter v. Bollinger, the Court, by the narrowest vote of 5-4, endorsed the racial affirmative-action admissions policies of the admissions office of the University of Michigan Law School. The school had no quotas or set-asides, but the school did have a policy that its admitting class needed an unenumerated “critical mass” of minority students. Picking up on Bakke’s principle that diversity improves the educational project itself, the law school had a stated goal “to achieve that diversity which has the potential to enrich everyone’s education.” Writing for the Court, Justice O’Connor upheld the school’s “narrowly tailored use of race in admissions decisions to further a compelling interest in obtaining the educational benefits that flow from a diverse student body.” But she closed her opinion, the opinion for the Court, with the now-famous hope for the future: “We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.”
The dissents were sharp—all with the theme that the ball was being hidden. Justice Rehnquist, writing for himself, Antonin Scalia, Anthony Kennedy, and Clarence Thomas, stated: “The Court suggests a possible 25-year limitation on the La School’s current program…. In truth… the Law School’s use of racial preferences [will be] on a seemingly permanent basis. Thus, an important component of strict scrutiny—that a program be limited in time—is casually subverted.”
In his dissent, Scalia essentially predicted 2022’s realities when he forecast future cases concerning “those universities that talk the talk of multiculturalism and racial diversity in the courts but walk the walk of tribalism and racial segregation on their campuses through minority-only student organizations, separate minority housing opportunities, separate minority student centers, even separate minority-only graduation ceremonies.”
In his own dissent, Justice Kennedy, who was to write the seemingly-contradictory majority opinion endorsing affirmative action in the next case, concluded that the Court had not followed strict scrutiny and averred that “the concept of critical mass is a delusion used by the Law School to mask its attempt to make race an automatic factor in most instances and to achieve numerical goals indistinguishable from quotas.”
Judicial deference to educators on race
Ten years after Grutter, and just six years ago, the Court handed down Fisher v. University of Texas (Fisher II). Like Grutter, the vote in Fisher II in 2016 was razor-thin; except in Fisher it was also underpersoned. Justice Scalia had died, and Justice Elena Kagan took no part in the case because it had been filed when she was the Solicitor General at the Department of Justice. Justice Kennedy, a dissenter in Grutter, wrote the opinion for the 4-3 Court. He was joined by Justices Ruth Bader Ginsburg, Stephen Breyer, and Sonia Sotomayor. Thus, three-fourths of the Fisher II majority is no longer on the Court.
The issue in Fisher II was whether the University of Texas’ undergraduate admission procedures had complied with Grutter and could withstand strict scrutiny under the Equal Protection Clause. With Kennedy writing, the Court endorsed the University’s inclusion of race as one of the “special circumstances,” along with socio-economic status, family background, and test scores that admission officers can consider. Of great significance, Justice Kennedy quoted language of the earlier version of the case, Fisher I (2013), to the effect that the “educational benefits” of the use of race in admissions is an “academic judgment” coming from the University’s “experience and expertise,” that the Court will give substantial but not complete “judicial deference” to. Thus can be seen the addition of an another factor, judicial deference, to Justice Powell’s diversity in Bakke.
In his dissent, Justice Thomas said that the use of race in college admissions is “categorically prohibited” by the Equal Protection Clause and that Grutter should be overruled because of its “faddish theor[y] that racial discrimination may produce educational benefits.” As part of his lengthy dissent, Justice Samuel Alito maintained that the University’s “primary argument is that merely invoking ‘the educational benefits of diversity’ is sufficient and that it need not identify any metric that would allow a court to determine wither its plan is needed to serve, or is actually serving those interests.”
Affirmative action in a new Court
The current Court set to hear the two cases for oral argument on October 31 is made up of only four justices who took part in Fisher II. Of those four, Justices John Roberts, Alito, and Thomas were the three dissenters in the Court’s 4-3 decision.
What both Harvard and North Carolina have greatly in their favor are the rulings of the courts below. The federal district and appeals courts ruled in favor of Harvard, and the federal district court ruled in favor of North Carolina. Both cases involved a trial, and both universities enjoy the benefit of the finding of facts in their favor at those trials. All three courts below ruled that both universities had complied with the racial procedures set out in Grutter and Fisher II. As a consequence, then, with the unlikelihood that the Supreme Court would explicitly reject findings of fact from the lower courts, the twin cases herein are almost pure “constitutional” cases. Was especially Grutter correctly decided under the Equal Protection Clause?
As the legacy of Bakke, Grutter, and Fisher II, both universities—Harvard and the University of North Carolina—practice admissions policies in which race is of great significance. The question now is almost, how can racial preferences be done artfully so as to emphasize and understate race at the same time? In the Harvard case, Students for Fair Admissions, Inc. (SFFA) sued on behalf of Asian Americans who were denied admission to the undergraduate school. SFFA points out that Asian-Americans have the highest academic achievement, highest participation in extracurricular activities, and highest in-person interview ratings by alumni where the students live. SFFA is not shy about asserting that because of this superiority as applicants, Asian-Americans should be admitted “at a higher rate than whites.”
On what is described as “the personal rating,” which involves factors like “integrity, courage, kindness, and empathy,” however, Asian-Americans receive “by far the worst scores.” SFFA labels the personal rating element as “wholly subjective” and based on “the cold file,” with individual interviews rare. SFFA says that “the personal ratings assigned by Harvard reveal a clear racial hierarchy—with African-Americans consistently getting the best personal ratings and Asian Americans consistently getting the worst.”
As for the racial balancing at the end of the admissions process, SFFA uses a table depicting the percent of students in the years 2009 thru 2018, which table shows almost no variation in the percent of admittees who are African-American, Hispanic, and Asian-American over that ten-year period.
Harvard answers: “Race is one piece of Harvard’s interest in diversity…. [The] lower courts found that Harvard has identified concrete educational objectives to achieve by considering race as one factor among many in admissions.” And, “people learn better in a genuinely diverse environment.” In addition to academic records, extra-curricular activities, and personal recommendations, Harvard’s admission process is lengthy, multi-layered, and involves different persons at different levels. There are no quotas or numerical set-asides.
Harvard continues: “The personal rating reflects a preliminary “assessment of what kind of contribution the applicant would make to the Harvard community based on their personal qualities,” including “integrity, helpfulness, courage, kindness, fortitude, empathy, self-confidence, leadership ability, maturity, or grit.” “SFFA denigrates those qualities as “subjective,” Harvard contends, but SFFA “nowhere explains how an admissions program could evaluate an applicant as a whole person without accounting for them.”
SFFA charges that UNC has been using racial preferences as advantages for African-Americans, Hispanics, and Native Americans for three decades, but not for Asian-Americans. SSFA concedes that UNC has no quotas or numerical goals. SFFA heavily relies on statistical table concerning UNC’s admission rate of out-of-state students that shows consistent under-enrollment of Asian-Americans from the top to the bottom of students grouped by academic excellence. Thus, SFFA says, there is a “stark racial disparities in admission rates among similarly qualified applicants.”
Asserting that the Court should affirm “its longstanding precedents” in the use of race in admitting students, UNC answers that there is no race-neutral alternative to achieving a diverse student body. And the school strongly asserts, like Harvard, that its use of race cannot be tracked, statistically traced, or quantified; it is one of several factors in a prolonged multi-level evaluation and re-evaluation along the way to what ends up being the freshman class. UNC strongly avers that diversity is an “educational benefit” that it regards as “central” to its mission and that its uses race “flexibly” as one of several “factors” in a “holistic and individualized” admission procedure.
Race and diversity
With razor-thin votes in Grutter and Fisher II and with a Court comprising five Justices who are new to the issue, affirmative action in higher education and society is an open question. And the importance of these two cases is emphasized even more because Harvard and the University of North Carolina are the nation’s oldest private and public universities, respectively.
In Grutter, Justice O’Connor held forth about affirmative action in universities benefiting the country at large. For universities, including the military academies, she said, “represent the training ground for a large number of our Nation’s leaders.” Now, in the cases of Harvard and UNC, the Biden Administration has taken the next step in promoting affirmative action as necessary not just for our country’s leaders in general but for our national security. In its filing in support of the two universities, the Department of Justice spends about one-third of its brief going beyond the immediate issue of affirmative action in higher education to talk about its permanent effect in society at large. For, “the educational benefits of diversity remain a compelling interest of vital importance to the United States.” And, “the United States military depends on a well-qualified and diverse officer corps.” Thus, racial diversity as one factor in the evaluation of an individual’s university application becomes a general and pervasive characteristic in and of society. Furthermore, the brief gives examples of affirmative efforts in other areas of federal employment. All considerations of any time limits, including Justice O’Connor’s 25 years, are abandoned. Affirmative action goes beyond education and is permanent in society.
When this writer applied to college decades ago, he submitted his academic records, extracurricular activities, and personal recommendations. Such personal recommendations were primarily about a student’s diligence and general cooperativeness. He was then personally interviewed by colleges. When he sent his kids to college in the 1990’s and 2000’s, personal interviews had already been eliminated as a regular application requirement. In its case, Harvard points out the rarity of a personal interview. So, how does Harvard come up with a “personal rating”—a rating of a person, the “whole person,” not just a student? With its conclusions about an applicant’s “integrity, courage, kindness, and empathy,” for example, how did such ratings become what is in fact some kind of moral judging of an applicant? And this, as SFFA argues, is where Asian-Americans were rated low.
As if we do not have enough controversy, the well-known superior academic achievements of Asian students is obviously an implicit issue here. But SFFA makes it explicit by making a direct comparison in its brief to Harvard’s attempt in the 1920’s to limit the admission of Jews who were disproportionately excelling at Harvard’s entrance exam. And today this is not just a controversy in higher education. In 2020, Asian-American enrollment at Thomas Jefferson High School, an elite public school located in a Virginia suburb of Washington D.C. and nationally known for its superior academics, had an enrollment that was 70 percent Asian-American. In 2021, the school board approved new admission criteria for the purpose of increasing black and Hispanic enrollment. Upon the filing of a lawsuit alleging that Asian-Americans were the target of explicit racial engineering, a federal district court agreed, a decision that the appeals court has now stayed.
If since Bakke, diversity is not just racial diversity but is educational diversity, what about the faculty of the universities? Should affirmative action be extended there? And in light of the woke and canceling culture so pervasive in universities today, could those faculty members who have been canceled have grounds for suing? As for undergraduate admission, could a conservative Republican sue after his admission application based on his own kind of diversity has been rejected? For we know that the foundational elements of diversity are by definition unlimited.
For at least three-quarters of a century, Justice John Marshall Harlan’s dissent in the 1896 case of Plessy v. Ferguson was universally regarded as a statement of the best of American principles and aspirations. Today, is it still true that “the law regards man as man, and takes no account of his surroundings or of his color when his civil rights as guaranteed by the supreme law of the land are involved”?
The Imaginative Conservative applies the principle of appreciation to the discussion of culture and politics—we approach dialogue with magnanimity rather than with mere civility. Will you help us remain a refreshing oasis in the increasingly contentious arena of modern discourse? Please consider donating now.
The featured image is Pixabay.
Leave A Comment