It’s almost a foregone conclusion that the Supreme Court will sound a death knell for race-conscious affirmative action when it soon hands down decisions in the cases involving Harvard and the University of North Carolina (UNC). Notably, these cases are not just the latest stop in the Supreme Court’s evolving opposition to affirmative action; rather, they represent a new frontier altogether: one in which the very notion of diversity as a positive societal value is under attack, even in our nation’s highest court.
Chief among the skeptics of diversity-as-good is the Court’s current longest-serving justice, Clarence Thomas, who in oral arguments stated, “I’ve heard the word diversity a few times, and I don’t have a clue what it means.” And while Justice Thomas’s position is quite predictable, what remains a mystery is just how far the other justices on the conservative court will go in prescribing how colleges and universities select their students.
No matter what the high court decides, its verdict will strike a sensitive nerve in the greatly divided American body politic—matters of race in this country always do. Yet for those Americans who believe that the health of our nation is inextricably linked with the social cohesion of its many constituent parts, we must go beyond emotional reactions to the decision and digest the legal implications of what is at stake, as well as what it means for the future composition of our schools and universities and educational opportunity in America.
The Gradual Neutering of Race-Conscious Affirmative Action
To be clear, although race conscious affirmative action will likely soon perish, it is already on life support. In case after case for the past forty-five years, the Supreme Court has increasingly limited the ability of colleges to take students’ race(s) into account during the admissions process.
The general parameters around what modern affirmative action programs are allowed to look like were set by the Supreme Court in 1978 in a case called Bakke v. California. The University of California Medical School at Davis had an admissions program at the time that reserved 16 of 100 spots for “qualified minorities” that the Court invalidated. The majority of justices determined that racial quotas were unconstitutional and that an admissions policy that gave preference to “victims of ‘societal discrimination’” was an impermissibly broad aim for a university’s admissions policy.
The court went even further in 2003, in Gratz v. Bollinger, invalidating any system that awarded predetermined “points” to racial minorities, such as the University of Michigan’s policy that awarded twenty additional points in their admissions matrix for candidates who were members of an “underrepresented minority.” The majority found that such an approach made race too decisive of a factor in determining admission.
Fast forward to today—there are no racial quotas on college campuses. No predetermined points or historical remedies for societal discrimination. In fact, universities must first demonstrate that they have exhausted all workable race-neutral alternatives before even considering the race of applicants at all. The goalposts have been so narrowed that the only way colleges can incorporate race into admissions decisions is “holistically,” like in UNC’s process, where race is considered as just one factor alongside forty others. According to UNC, using race in that way—the most liberally permissible way—made a difference in only 1.2 percent of admissions cases, among more than 57,000 applications, which is significantly lower than, say, the odds of missing the point-after kick in college football.
A Key Legal Precedent: “Compelling Interest in Diversity”
Even as the Court has steadily weakened race-conscious admissions policies, it has, at every turn, upheld the notion that there exists a “compelling interest” in diversity in institutions of higher education. That simple phrase might seem like a throwaway line, but for Constitutional scholars, it carries huge implications.
Dispensing with the “compelling interest” in diversity precedent in higher education would be highly consequential in legal terms, because once it’s gone, a governmental entity (or public/government-funded university) can no longer use racial classification when distributing any benefits, such as admissions spots. This is known as the “strict scrutiny standard,” which is the highest standard of judicial review and applies whenever race is used in this way.
Why does the Supreme Court treat racial classification so delicately? Chief Justice John Roberts illustrated this poignantly in oral arguments when Harvard’s attorney compared an applicant’s race to an applicant’s musical ability as factors with similar impact on their potential admission under Harvard’s current policy. Roberts rejected the comparison, stating, “We did not fight a civil war about oboe players. We did fight a civil war to eliminate racial discrimination. And that’s why it’s a matter of considerable concern.”
However, there are real reasons to believe this long-standing precedent will be overturned. Justices like Clarence Thomas have already explicitly disagreed with the notion of diversity as a compelling interest. In his opinion in Fisher v. UT, he wrote, “there is nothing ‘pressing’ or ‘necessary’ about obtaining whatever benefits may flow from racial diversity.” Even more “centrist” jurists like the Chief Justice are on record as opposing the concept.
There are two key reasons why the Court potentially declaring diversity no longer a compelling interest has such import for our nation’s schools and broader society.
First, the meaning of such action would speak volumes about the state of a bedrock principle of our modern, pluralistic democracy. For decades, the idea that our government has had a vested interest in colleges being diverse was neither partisan nor controversial. A wide body of research shows that young people of all backgrounds are smarter, stronger, and kinder when they learn in diverse, heterogeneous environments. A rapidly changing global economy requires a society in which people can work together across lines of racial, cultural, linguistic, and religious differences to solve problems. If the Supreme Court says diversity is no longer worth actively promoting, then what are ordinary Americans to think?
If the Supreme Court says diversity is no longer worth actively promoting, then what are ordinary Americans to think?
Second, overturning precedent could portend disaster for students and institutions who care about racial diversity. Some argue that when the court overturns race-conscious affirmative action, institutions will simply be able (and actively decide) to rely on alternative methods for fostering diversity, such as using preferences or priorities for socioeconomic status. But not only are these alternatives shown to be less effective in promoting racial diversity, the belief that these schemes won’t be attacked in the future is myopic. The fact is that the Harvard/UNC decision will set the stage for likely challenges in the future to even “facially race-neutral” policies—meaning policies that don’t consider an applicant’s race whatsoever—which a right wing court could find unconstitutional if one of the reasons why the policies were created was to increase racial diversity.
Take, for example, the “Texas Plan,” which was created in the late 1990s with the goal of increasing racial diversity among Texas colleges. Under the plan, which does not use race in admissions considerations whatsoever, the top 10 percent of students from every high school are automatically admitted to the state’s flagship universities. Would a future Supreme Court find that policy unconstitutional, since members of the legislature were openly motivated by a desire to see more Black and Hispanic students at the state’s top colleges?
Further, there is a risk that future challenges could target colleges that prioritize recruitment focused on communities of color. It could limit the availability of programs and scholarships designed specifically for students from disadvantaged backgrounds. And there is sure to be a “chilling effect,” wherein the fear of litigation scares institutions away from even mentioning racial diversity as a stated goal. Indeed, after a 2007 case on the use of race in K–12 admissions, many school districts opted not to take steps to address racial segregation because they were afraid of running afoul of the law.
A Warning from the Fourth Circuit: Thomas Jefferson High School
In a recent case before the Fourth Circuit Court of Appeals, a coalition represented by the conservative Pacific Legal Foundation sued a Northern Virginia school board for adopting an admissions policy for that district’s flagship magnet school that the plaintiffs argued purposely discriminates against Asian Americans. While the similarities to the Harvard and UNC cases may sound strikingly similar, there is at least one key difference: the policy that the plaintiff argues is racially discriminatory in this case is race-neutral. That means that the race of an applicant to this highly touted school (Thomas Jefferson High School for Science and Technology) is not taken into account in any way as an admissions factor.
In a rebuke to the plaintiffs and a win for diversity, the Fourth Circuit judges decided two-to-one in favor of the school board in May of this year. Thomas Jefferson’s admissions policy, which among other features, admits the top 1.5 percent of the graduating classes of all feeder middle schools, is constitutional (for now) and does not discriminate against Asian Americans.
Yet it is the dissent, written by Donald Trump–appointed federal Judge Allison Rushing, that is instructive, as it foreshadows the war against diversity that is on the horizon. In her dissent, Rushing casts aspersions on the board’s policy and claims that the Fourth Circuit majority “refuses to look past the [p]olicy’s neutral varnish.” The judge describes a number of elements of the case as evidence of discriminatory intent and worthy of invalidating the district’s race-neutral policy, including the fact that the school board wanted to take action to address the large disparity between the demographics of the high school and the demographics of the broader school district. The judge’s viewpoint begs the question as to whether any institution that seeks to improve representation for historically underrepresented groups will be suspect—a truly nightmarish possibility that would make it almost impossible for institutions to take steps to proactively increase diversity in places where historical discrimination has made them predominantly or exclusively white places.
The Next Chapter
Our nation has a long and fraught history with diversity—a constant struggle to live out the principle of e pluribus unum. But nearly seventy years ago, in Brown v. Board of Education, the Supreme Court took a step in the right direction when it reversed decades of sanctioned segregation and affirmed the value of diversity in education.
When the Supreme Court delivers its verdict this summer, there is little question that it will restrict universities’ ability to promote diversity on campus, even if questions remain as to how far the Court will go in its dictate. Indeed, institutions and leaders will need to scrutinize the ruling to understand exactly what is permissible, rather than react out of fear or assumption.
But whatever verdict the justices render, it will force the American people to look in the mirror and ask the question: Does diversity still matter?
The next chapter of this saga will be written in the court of public opinion, where diversity is already under attack by malign political actors who seek to sow fear and division. And yet there are reasons for hope. Even if some Americans are skeptical of race-conscious affirmative action, most Americans support efforts to increase diversity. A WaPo poll shows that 64 percent of Americans say that “programs designed to increase racial diversity of college students are a good thing.”
The majority of Americans who still believe in diversity will need to stand for its principles in the days ahead. For in a country made up of denizens of every hue, race, color, and creed, if democracy matters, then diversity matters. If social cohesion matters, then diversity matters. And if the next generation’s ability to solve the existential problems facing our country matters, then diversity definitely matters.
Tags: race, affirmative action, supreme court, higher education, race-conscious admissions
Affirmative Action Isn’t on Trial at the Supreme Court. Diversity Is.
It’s almost a foregone conclusion that the Supreme Court will sound a death knell for race-conscious affirmative action when it soon hands down decisions in the cases involving Harvard and the University of North Carolina (UNC). Notably, these cases are not just the latest stop in the Supreme Court’s evolving opposition to affirmative action; rather, they represent a new frontier altogether: one in which the very notion of diversity as a positive societal value is under attack, even in our nation’s highest court.
Chief among the skeptics of diversity-as-good is the Court’s current longest-serving justice, Clarence Thomas, who in oral arguments stated, “I’ve heard the word diversity a few times, and I don’t have a clue what it means.” And while Justice Thomas’s position is quite predictable, what remains a mystery is just how far the other justices on the conservative court will go in prescribing how colleges and universities select their students.
No matter what the high court decides, its verdict will strike a sensitive nerve in the greatly divided American body politic—matters of race in this country always do. Yet for those Americans who believe that the health of our nation is inextricably linked with the social cohesion of its many constituent parts, we must go beyond emotional reactions to the decision and digest the legal implications of what is at stake, as well as what it means for the future composition of our schools and universities and educational opportunity in America.
The Gradual Neutering of Race-Conscious Affirmative Action
To be clear, although race conscious affirmative action will likely soon perish, it is already on life support. In case after case for the past forty-five years, the Supreme Court has increasingly limited the ability of colleges to take students’ race(s) into account during the admissions process.
The general parameters around what modern affirmative action programs are allowed to look like were set by the Supreme Court in 1978 in a case called Bakke v. California. The University of California Medical School at Davis had an admissions program at the time that reserved 16 of 100 spots for “qualified minorities” that the Court invalidated. The majority of justices determined that racial quotas were unconstitutional and that an admissions policy that gave preference to “victims of ‘societal discrimination’” was an impermissibly broad aim for a university’s admissions policy.
The court went even further in 2003, in Gratz v. Bollinger, invalidating any system that awarded predetermined “points” to racial minorities, such as the University of Michigan’s policy that awarded twenty additional points in their admissions matrix for candidates who were members of an “underrepresented minority.” The majority found that such an approach made race too decisive of a factor in determining admission.
Fast forward to today—there are no racial quotas on college campuses. No predetermined points or historical remedies for societal discrimination. In fact, universities must first demonstrate that they have exhausted all workable race-neutral alternatives before even considering the race of applicants at all. The goalposts have been so narrowed that the only way colleges can incorporate race into admissions decisions is “holistically,” like in UNC’s process, where race is considered as just one factor alongside forty others. According to UNC, using race in that way—the most liberally permissible way—made a difference in only 1.2 percent of admissions cases, among more than 57,000 applications, which is significantly lower than, say, the odds of missing the point-after kick in college football.
A Key Legal Precedent: “Compelling Interest in Diversity”
Even as the Court has steadily weakened race-conscious admissions policies, it has, at every turn, upheld the notion that there exists a “compelling interest” in diversity in institutions of higher education. That simple phrase might seem like a throwaway line, but for Constitutional scholars, it carries huge implications.
Dispensing with the “compelling interest” in diversity precedent in higher education would be highly consequential in legal terms, because once it’s gone, a governmental entity (or public/government-funded university) can no longer use racial classification when distributing any benefits, such as admissions spots. This is known as the “strict scrutiny standard,” which is the highest standard of judicial review and applies whenever race is used in this way.
Why does the Supreme Court treat racial classification so delicately? Chief Justice John Roberts illustrated this poignantly in oral arguments when Harvard’s attorney compared an applicant’s race to an applicant’s musical ability as factors with similar impact on their potential admission under Harvard’s current policy. Roberts rejected the comparison, stating, “We did not fight a civil war about oboe players. We did fight a civil war to eliminate racial discrimination. And that’s why it’s a matter of considerable concern.”
However, there are real reasons to believe this long-standing precedent will be overturned. Justices like Clarence Thomas have already explicitly disagreed with the notion of diversity as a compelling interest. In his opinion in Fisher v. UT, he wrote, “there is nothing ‘pressing’ or ‘necessary’ about obtaining whatever benefits may flow from racial diversity.” Even more “centrist” jurists like the Chief Justice are on record as opposing the concept.
There are two key reasons why the Court potentially declaring diversity no longer a compelling interest has such import for our nation’s schools and broader society.
First, the meaning of such action would speak volumes about the state of a bedrock principle of our modern, pluralistic democracy. For decades, the idea that our government has had a vested interest in colleges being diverse was neither partisan nor controversial. A wide body of research shows that young people of all backgrounds are smarter, stronger, and kinder when they learn in diverse, heterogeneous environments. A rapidly changing global economy requires a society in which people can work together across lines of racial, cultural, linguistic, and religious differences to solve problems. If the Supreme Court says diversity is no longer worth actively promoting, then what are ordinary Americans to think?
Second, overturning precedent could portend disaster for students and institutions who care about racial diversity. Some argue that when the court overturns race-conscious affirmative action, institutions will simply be able (and actively decide) to rely on alternative methods for fostering diversity, such as using preferences or priorities for socioeconomic status. But not only are these alternatives shown to be less effective in promoting racial diversity, the belief that these schemes won’t be attacked in the future is myopic. The fact is that the Harvard/UNC decision will set the stage for likely challenges in the future to even “facially race-neutral” policies—meaning policies that don’t consider an applicant’s race whatsoever—which a right wing court could find unconstitutional if one of the reasons why the policies were created was to increase racial diversity.
Take, for example, the “Texas Plan,” which was created in the late 1990s with the goal of increasing racial diversity among Texas colleges. Under the plan, which does not use race in admissions considerations whatsoever, the top 10 percent of students from every high school are automatically admitted to the state’s flagship universities. Would a future Supreme Court find that policy unconstitutional, since members of the legislature were openly motivated by a desire to see more Black and Hispanic students at the state’s top colleges?
Further, there is a risk that future challenges could target colleges that prioritize recruitment focused on communities of color. It could limit the availability of programs and scholarships designed specifically for students from disadvantaged backgrounds. And there is sure to be a “chilling effect,” wherein the fear of litigation scares institutions away from even mentioning racial diversity as a stated goal. Indeed, after a 2007 case on the use of race in K–12 admissions, many school districts opted not to take steps to address racial segregation because they were afraid of running afoul of the law.
A Warning from the Fourth Circuit: Thomas Jefferson High School
In a recent case before the Fourth Circuit Court of Appeals, a coalition represented by the conservative Pacific Legal Foundation sued a Northern Virginia school board for adopting an admissions policy for that district’s flagship magnet school that the plaintiffs argued purposely discriminates against Asian Americans. While the similarities to the Harvard and UNC cases may sound strikingly similar, there is at least one key difference: the policy that the plaintiff argues is racially discriminatory in this case is race-neutral. That means that the race of an applicant to this highly touted school (Thomas Jefferson High School for Science and Technology) is not taken into account in any way as an admissions factor.
In a rebuke to the plaintiffs and a win for diversity, the Fourth Circuit judges decided two-to-one in favor of the school board in May of this year. Thomas Jefferson’s admissions policy, which among other features, admits the top 1.5 percent of the graduating classes of all feeder middle schools, is constitutional (for now) and does not discriminate against Asian Americans.
Yet it is the dissent, written by Donald Trump–appointed federal Judge Allison Rushing, that is instructive, as it foreshadows the war against diversity that is on the horizon. In her dissent, Rushing casts aspersions on the board’s policy and claims that the Fourth Circuit majority “refuses to look past the [p]olicy’s neutral varnish.” The judge describes a number of elements of the case as evidence of discriminatory intent and worthy of invalidating the district’s race-neutral policy, including the fact that the school board wanted to take action to address the large disparity between the demographics of the high school and the demographics of the broader school district. The judge’s viewpoint begs the question as to whether any institution that seeks to improve representation for historically underrepresented groups will be suspect—a truly nightmarish possibility that would make it almost impossible for institutions to take steps to proactively increase diversity in places where historical discrimination has made them predominantly or exclusively white places.
The Next Chapter
Our nation has a long and fraught history with diversity—a constant struggle to live out the principle of e pluribus unum. But nearly seventy years ago, in Brown v. Board of Education, the Supreme Court took a step in the right direction when it reversed decades of sanctioned segregation and affirmed the value of diversity in education.
When the Supreme Court delivers its verdict this summer, there is little question that it will restrict universities’ ability to promote diversity on campus, even if questions remain as to how far the Court will go in its dictate. Indeed, institutions and leaders will need to scrutinize the ruling to understand exactly what is permissible, rather than react out of fear or assumption.
But whatever verdict the justices render, it will force the American people to look in the mirror and ask the question: Does diversity still matter?
The next chapter of this saga will be written in the court of public opinion, where diversity is already under attack by malign political actors who seek to sow fear and division. And yet there are reasons for hope. Even if some Americans are skeptical of race-conscious affirmative action, most Americans support efforts to increase diversity. A WaPo poll shows that 64 percent of Americans say that “programs designed to increase racial diversity of college students are a good thing.”
The majority of Americans who still believe in diversity will need to stand for its principles in the days ahead. For in a country made up of denizens of every hue, race, color, and creed, if democracy matters, then diversity matters. If social cohesion matters, then diversity matters. And if the next generation’s ability to solve the existential problems facing our country matters, then diversity definitely matters.
Tags: race, affirmative action, supreme court, higher education, race-conscious admissions