Affirmative Action on the Rocks
The Supreme Court heard oral arguments this week on the role that race plays in college admissions. The organization Students for Fair Admissions sued Harvard College and the University of North Carolina (UNC) claiming that these schools discriminate against certain groups of people based on race. Both schools give preference to applicants that are African American, Native American, and Hispanic, but not to White or Asian students. The two cases, Students for Fair Admissions v. Harvard and Students for Fair Admissions v. University of North Carolina were heard separately due to one school being private and the other public.
These cases have the potential to overrule the court’s 2003 decision in Grutter v. Bollinger that allowed higher education institutions to consider race for the sake of ‘diversity’. Grutter determined that considering race in admissions did not violate the Fourteenth Amendment’s Equal Protection Clause because race was not the sole determiner colleges were using – other factors like test scores, extracurricular activities, etc. would be part of the evaluation to accept an applicant. In the majority opinion, Justice Sandra Day O’Connor asserted that this ruling should be looked at through the lens of time. She stated:
…[the] Court expects that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.
Justice Clarence Thomas dissented in Grutter v. Bollinger eighteen years ago and has signaled this week that he may be willing to overturn it. When hearing the arguments based on the UNC case, North Carolina’s Solicitor General Ryan Park made an argument asserting that diverse groups have higher levels of thinking. He stated:
The mechanism there is that it reduces groupthink and that people have longer and more sustained disagreement, and that leads to a more efficient outcome.
Justice Thomas did not entertain this idea though responding with:
I guess I don’t put much stock in that because I’ve heard similar arguments in favor of segregation, too.
Justice Thomas then pointed out the hypocrisy of the proponents of affirmative action by highlighting the fact that discrimination is still a factor when giving extra credence to those of different races. Throughout his past rulings, he has never wavered on his belief that the Equal Protection Clause does not allow for race-based admissions.
Other cases have come before the Supreme Court to test the legitimacy of racial discrimination. Grutter’s sister case, Gratz v. Bollinger challenged the University of Michigan’s point system which gave “underrepresented minorities” twenty extra points which resulted in qualifying each person who checked that box for admittance. The court ruled against the school. Then, in 2016, the court ruled on Fisher v. University of Texas which challenged their race-preference admissions. The court ruled in this case that the school’s policy was constitutional because of how narrowly tailored the process was. Both of these cases involved public schools so their rulings will be considered when making a determination on the UNC case.
The Wall Street Journal, in an editorial about this week’s cases, summed them up this way, “It also became clear during the four hours that “diversity” is an all-purpose word intended to skirt the “strict scrutiny” that courts must use when assessing racial preferences. Diversity seems to be whatever the schools say it is for their purposes, and in many cases, it is a subterfuge for race. If the diversity standard is allowed to continue to justify discrimination, as a practical matter the lower courts will be obliged to defer to colleges nearly all the time. This will essentially put schools beyond the reach of judicial review on race in admissions.”
These decisions are not expected to be handed down until next year. The newest member of the court, Judge Kentanji Brown Jackson recused herself from the Harvard case due to her past involvement as a Harvard board member but will still rule on the UNC case.