The U.S. Supreme Court returns to the question of affirmative action in higher education on Monday and court wags probably won't be able to resist noting that it's Halloween.
The justices are revisiting decades of precedent upheld over the years by narrow court majorities that included Republican-appointed justices. This time, however, there is every likelihood that the new conservative court will overrule some or all of those precedents.
The baseline for permissible affirmative action programs in higher education was established in 1978. Citing Harvard University as the model, Justice Lewis Powell said that in evaluating applicants for admission, race could not be the determinative factor, but the university could use race as one of many factors, just as it uses other traits — special talents in music, science or athletics, and even the fact that the applicant's parents attended the university.
In announcing his opinion from the bench, Powell stressed that "in choosing among thousands of academically qualified applicants," a university's admissions committee, may "with a number of criteria in mind," pay "some attention to distribution that should be made among many types and categories of students."
In a series of cases since then, the court has more or less stuck to that principle, adding that each applicant must be evaluated individually, in a holistic way.
But today Harvard's admission system, cited as a model by Powell, is itself under the judicial microscope, along with the system at the University of North Carolina. UNC, which until the 1950s refused to accept any black applicants, is now widely rated as one of the top three state colleges in the South, though like many other top universities, it struggles to have a genuinely diverse student population. Just 8% of the undergraduate student population is African American in a state that is 21% Black.
The two cases overlap. Because UNC is a state school, the question is whether its affirmative-action program violates the 14th Amendment's guarantee to equal protection of the law. And even though Harvard is a private institution, it still is covered by federal anti-discrimination laws because it accepts federal money for a wide variety of programs.
What constitutes racial discrimination?
Ultimately, at the heart of both cases is the same principle: what constitutes racial discrimination?
On one side is Students for Fair Admissions, an organization founded by legal activist Edward Blum, who for decades has fought what he sees as racial preferences in school admissions and in other spheres as well.
"What is happening on college campuses today is that applicants are treated differently because of their race and ethnicity," he says. "Some are given a thumbs up. Some are given a thumbs down."
On the other side, Harvard and UNC contend that in addition to academic excellence, they aim for a student body that is demographically diverse, and that in evaluating the strengths of each candidate, an admissions committee "need not ignore a candidate's race any more than it does a candidate's home state, national origin, family background, or special achievements."
This holistic approach to college admissions is used by a huge variety of colleges, large and small, including the U.S. military academies. Among the many academic institutions that have filed briefs supporting affirmative action are 57 Catholic colleges and universities, including Notre Dame, Georgetown, and Holy Cross. And there are more briefs filed by 68 of the largest corporations in the country, and a brief filed by a long list of retired three- and four-star generals and admirals attesting to the need for racial diversity in the upper echelons of the military. They say that the lack of racial diversity in the officer corps during the Vietnam War led to enormous tensions, and even violence between the largely white officer corps and the largely black and Hispanic enlisted men, sometimes compromising the war effort.
An uphill task at a conservative court
That said, the Supreme Court's new conservative super-majority presents a daunting legal mountain for UNC and Harvard to climb. Three of the more senior conservatives — Chief Justice John Roberts and Justices Clarence Thomas and Samuel Alito — have previously dissented when the court upheld affirmative-action programs, and they are now joined by three relatively new Trump appointees.
So, academic institutions are making, or at least emphasizing, some new arguments, focused on the conservative doctrine of "originalism" and what the "original intent" was of the men who wrote the Fourteenth Amendment and its guarantee to "equal protection of the laws."
The court's newest member and the first African American woman named to the court, Biden-appointee Ketanji Brown Jackson, pointed to that history during oral arguments in a different case about race earlier this month.
"When I drilled down to that level of analysis, it became clear to me that the Framers themselves adopted the equal protection clause...in a race-conscious way," she said. "I don't think that the historical record establishes that the founders believed that race neutrality or race blindness was required."
Indeed, Harvard and UNC point to colorblind language that was originally proposed for the Fourteenth Amendment, and rejected by Congress. And they note that the same Congress that passed the Fourteenth Amendment after the Civil War also adopted race-conscious laws giving special benefits to African Americans in areas from education to land distribution.
SFFA counters that the whole idea of the Fourteenth Amendment was colorblindness, and the organization repeatedly cites the Supreme Court's 1954 decision in Brown v. Board of Education, declaring racial segregation of public schools unconstitutional under the Fourteenth Amendment.
"The Constitution and our civil rights laws forbid the consideration of race in higher education," says SFFA's Blum.
But Harvard co-counsel William Lee replies that SFFA's use of Brown turns the court's 1954 schools case "on its head." Brown, he says, dealt with the exclusion of students based solely on their race, not with actions aimed at bringing the races together.
The Harvard case will be the second one argued Monday, with one justice missing. Justice Jackson has recused herself because she sat on the Harvard Board of Overseers during part of this litigation. She is hardly the only justice with Harvard connections. Four of the justices — including Jackson and the chief justice, attended Harvard college or law school, or both. Justice Brett Kavanaugh taught there, as did Justice Elena Kagan, who in addition served as dean of the law school for six years. But none, except Jackson, has had anything to do with the Harvard case.
Harvard's Jewish quota
SFFA's lawsuit against Harvard is based in significant part on the challengers assertion that Harvard discriminates against Asian Americans, who have, on average, better standardized test scores and grades than any other ethnic group, including whites.
SFFA's Blum points to Harvard's history of limiting the number of Jews, by imposing a Jewish quota. "Today at Harvard," he maintains, "Asians are in effect the new Jews."
Blum's initial filings in the case relied heavily on the work of Berkeley professor Jerome Karabel, author of "The Chosen," about the Jewish quotas at Harvard, Yale and Princeton in the 1900s. But Karabel disputes Blum's thesis, and declined to work on the current case.
Karabel observes that there is a "critical difference" between the reviled Jewish quotas, which dramatically drove down the number of Jews on Ivy League campuses from the 1920's up to the early 1960's, and today's approach.
"Nothing like that has happened" with Asian Americans at Harvard, he says. In fact, Asian American enrollments "have consistently risen" — risen so much that the 28% of the entering class at Harvard this year self-identifies as Asian American, while the country's overall Asian population is 7.2%.
Consequences far beyond Harvard
Much of Harvard's argument on Monday will rest heavily on the fact that SFFA's charges of discrimination were tested in court during a 15-day trial during which Harvard's Dean of Admissions and members of the admissions committee were subjected to cross examination, and hundreds of thousands of emails were produced for examination.
Harvard says in its briefs that academic excellence, though "necessary," is "only one factor." Professor Karabel notes that Harvard's size is "almost exactly the size it was in the 1960s." But the number of applicants has mushroomed over and over again. Harvard's brief points out that of the 35,000 applicants competing for 1,600 slots in the class of 2019, 2,700 had perfect verbal SAT scores; 3,700 had perfect math SAT scores, and more than 8,000 had perfect Grade Point Averages.
Indeed, the trial judge in the case, Judge Allison Burroughs was, in her youth, a failed applicant to Harvard. But after the trial, her conclusion, upheld by the appeals court, was that there was "no evidence" of discrimination against Asian Americans. A federal judge in North Carolina reached a similar conclusion for UNC.
If the Supreme Court throws out its prior rulings on affirmative action, or in other ways further limits them, expect enormous ripple effects, well beyond the question of college admissions or admissions at selective primary and secondary public schools like Boston Latin or Bronx High School of Science.
Harvard co-counsel Lee says that if the court repudiates affirmative action in college admissions, race-conscious policies in other areas, including employment, could be challenged next.
"It's going to open up a Pandora's box across the country and across institutions and industries," Lee says.
That said, affirmative action policies are not like abortion; they do not have the same level of public support. Indeed, in 2020 liberal California, by a 57% majority, voted not to reinstate affirmative action in the state's public colleges and universities. Other polls indicate similar, though sometimes contradictory results. For instance, a recent Washington Post-Schar School poll found that 6 in 10 Americans say race shouldn't be considered in college admissions. But an equally robust majority endorsed programs to boost racial diversity on campuses.
For Blum, race-conscious policies are not a new question. Even as he brought a decades-long challenge to affirmative action in college admissions, he engineered a successful challenge to a key provision of the landmark 1965 Voting Rights Act. By a 5-to-4 vote the Supreme Court struck down the section of the law that had required areas with a history of race discrimination at the polls to pre-clear with the Justice Department any changes in voting procedures.
Asked what is next on his agenda, Blum is coy, declaring, "I don't have anything planned. I'm 70 years old...I'm getting near the end of my tether."
But last year he formed a new organization, which has already filed two lawsuits to challenge diversity goals on corporate boards.
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