Putting Affirmative Action to the Question

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Reprinted from Law & Liberty

For a couple of generations now, the Supreme Court’s position on affirmative action has been that “race consciousness” in university admissions is a constitutional means to achieve student body diversity. In two cases argued this term, SFFA v. UNC and SFFA v. Harvard, petitioners challenge the status quo, arguing affirmative action amounts to unconstitutional racial discrimination in violation of the 14th Amendment Equal Protection Clause and Title VI of the Civil Rights Act. Consequently, they call for overruling Grutter v. Bollinger, the 2003 case that upheld the practice. If the oral argument is any indication, the Court believes that the time has come to retire affirmative action in higher education.

In Grutter, Justice Sandra Day O’Connor judged that Michigan’s “limited” use of race in a holistic, individualized admissions process ensured that nonminority applicants were not harmed, but she also warned that the use of race in admissions was “potentially dangerous.” The practice was essentially out of sync with the core purpose of the 14th Amendment, which was to eliminate all government-imposed racial discrimination. It therefore was intrinsically time-limited, and universities were required to continually explore race-neutral alternatives to achieve diversity. O’Connor then declared the Court’s famous “expectation” that the use of race in university admissions had an expiration date of 25 years.

In the intervening nineteen years since Grutter, something materialized that we can assume O’Connor did not anticipate: under the guise of “diversity,” Harvard appeared to be systematically ranking Asian-American applicants lower than all rival applicants in their personal rating score, which is a significant factor in admission. This, the petitioners allege, is evidence that Harvard manipulated its so-called holistic admissions to put its thumb on the racial scales in order to design classes to be (what administrators took to be) a more desirable shade of color than would be achieved if admissions were driven primarily by academic merit. The weight of disparate personal ratings scores was such that an African American applicant in the third lowest decile of Harvard’s academic index (measuring test scores and GPA) had a greater chance (5.2%) than an Asian American applicant in the second highest decile (5.1%).

Last week, the justices put affirmative action to the question along the lines of When? How much? What? Who? Which?

When? How Much?

Both the defenders and opponents of “race consciousness” ostensibly accept the duration condition imposed by Grutter. So, when will courts know whether or not “adequate” or “sufficient” or “meaningful” diversity has been achieved such that the use of race is no longer required?

Justice Kavanaugh pushed counsel on both sides on the duration limitation, and suggested that, while the time limit was open to interpretation, it at least had a definite upper limit. Might the time limit imposed be upon us? By the time the Court rules on these cases, presumably in Summer 2023, universities will be recruiting the class of 2028, who will be the first graduating class twenty-five years after Grutter was decided. Meanwhile, Justice Barrett expressed skepticism that in 2022 we had reached the point that O’Connor forecasted. Counsel on both sides agreed that the twenty-five-year specification was more aspirational than a hard deadline. This isn’t surprising. SFFA seeks a ruling that overturns Grutter outright rather than an opinion that attempts to salvage its reasoning; meanwhile, Harvard and UNC desire an indefinite extension of the deadline.

So, if there is no bright line expiration date, several justices wondered, when will courts know that “adequate” or “sufficient” diversity has been achieved such that the use of race is no longer required? Closely related to this is the question of quantity. As Justice Gorsuch put it: “how can you do diversity without taking account of numbers?” Given that quotas were a death knell in Gratz v. Bollinger, UNC’s counsel smartly parried this question, insisting that UNC engages in individualized, holistic review—admissions officers are only race-conscious with the broad, numerically unspecified goal of “diversity” in mind.

Yet, eventually, the Chief Justice sharpened the screws of the question: doesn’t UNC’s position that racial diversity is essential to its educational mission imply that it will have to “check” on the numbers? UNC’s counsel conceded that, indeed, some attention would have to be paid to numbers, after all. Just when the race-conscious methods will have generated the adequate numbers was left mysterious, however.


This raises a conceptual problem that always riddled the diversity rationale. How can we tell whether we are “progressing” toward some more enlightened educational experience, or regressing, unless we know just what diversity is?

Justice Thomas asked the what question. Counsel’s initial response was to define diversity using the cognate term “diverse,” which was about as helpful as the definition of diversity that Ron Burgundy offered in Anchorman: “an old, old wooden ship that was used during the Civil War era.” Eventually, counsel seemed to settle on a very broad definition of diversity as a set of people of “all different kinds…and all the ways [they] differ in our society.”

Fair enough. But, as Justice Thomas intimated, very broad definitions of diversity may suggest that it means “everything to everyone.” Is that coherent? And, if not, one might wonder how an incoherent goal could be an interest compelling enough to warrant racial discrimination? Taking counsel’s answer as a starting point, diversity means difference. So a diverse student body is made up of different persons. That much is uncontroversial. But what does it mean to be a person?

In the nominalistic world of identity politics, persons are aggregates of various socially constructed identities, which are rank-ordered in terms of inherent guilt and innocence, according to the privilege and victimhood status associated with identity. But what if one affirmed, say, a Judeo-Christion notion of personhood, in which each individual person is an irrepeatably distinct creature of immeasurable dignity, made in the image of God? In that case, any plurality of persons would necessarily be “diverse” in a fundamental sense, for each individual person is endowed with and distinguished by his or her own proper perfections.

What this means from the perspective of traditional Christian philosophy is that any attempt to qualitatively assess a person or group as superior or inferior in terms of race would be inherently invidious, insofar as such assessments suggest some greater or lesser dignity of persons just in virtue of a characteristic that the Judeo-Christian tradition took to be accidental. In this spirit, it was Martin Luther King Jr.’s dream that one day such assessments would be consigned to the ash heap of history.

Just as the two conceptions of diversity just outlined are at root incompatible, so Americans fundamentally disagree about the meaning of diversity. It is therefore not enough for universities to cry “diversity!” without specifying. But the more one specifies, the less plausibly can it serve as a coherent telos of the university, to say nothing of a “compelling” state interest.

The peculiar use of race might lead one to suspect that Harvard and UNC administrators’ affirmation of a broad definition of diversity is a pretense for an admissions policy driven by identity politics. The closest the justices came to voicing this suspicion was when Justice Kavanaugh asked if UNC included religion in its assessment of applicants’ contribution to diversity, to which counsel conceded that it did not (neither does Harvard). However, counsel pointed out that UNC does assess its religious climate and that it was pretty happy about the state of religious diversity—except for the challenge of making Jewish and Muslim students feel welcome.

The implication was clear: in the world of identity politics that the late modern university both built and perpetuates, religion is not as important as race unless the religion in question merits concern on the basis of the intersectional hierarchy of victimhood.

Given the conceptual challenges with “diversity,” perhaps a stronger case for racial preferences would be as remediation for past or present racial discrimination. While the Court’s precedents are more skeptical of such a rationale, the defendant in Grutter, President Lee Bollinger, suggested after his victory that his university adopted the diversity rationale as a forensic tactic, and that remediation was the true reason the Academy wanted to use racial preferences. In this vein, the liberal justices suggested that remediation of historic discrimination and exclusion, while perhaps not a standalone justification, supports an extension of the deadline in conjunction with the diversity rationale.

They did not say whether such a justification would imply that our current student bodies would thereby be constituted by debtor and creditor races. And this raises the question: who benefits from—and who is harmed by—the universities’ use of race?

Who? Which?

The liberal justices expressed skepticism of SFFA’s argument that Asian Americans are harmed by the universities’ policies. As Justice Jackson put it: Who is being injured in a particularized way such that they would have standing to bring suit? SFFA’s counsel responded that Gratz established that denial of equal opportunity for admission constitutes a redressable injury. Jackson’s reply was that in this case, unlike Gratz, race was not doing any real work apart from all the other factors used in a holistic analysis.

But Justice Jackson did not persuasively grapple with the findings from the lower court, namely, that race was a decisive factor in at least 1.2% of in-state applicants and 5.1% of out-of-state applicants to UNC—hundreds of applicants per year. Nor did Harvard’s counselors offer a reasonable, non-discriminatory justification for the wildly disparate personal rating scores Asian applicants received. If it is true that university admissions is a zero-sum game—someone’s ox always gets gored, as Justice Thomas has said—then, the conservative justices suggested, a substantial harm is being committed against applicants who lack the favored skin color.

The conservative and liberal justices expressed a common concern over another potential harm, should petitioners win: would retiring Grutter force universities to engage in a kind of racial erasure? Could universities not take into account the legitimate role that race played in a student’s personal story? Here SFFA’s tack was to emphasize that a student essay could speak to his or her culture and its role in the challenges a student encountered and overcame, whereas, Harvard automatically grants a boost for applicants who check the right box.

The liberal justices had fair follow-up questions here. Can we really prise out “race” from “culture”? And would a no-racial-classification rule imply that it would not matter if enrollment of underrepresented minorities plummeted? Counsel invoked examples of states like Florida which, it was argued, have achieved respectable levels of racial diversity through race-neutral means. And Justice Gorsuch chimed in to suggest that if universities want more racial diversity, they may have to pay a cost in fewer legacy and squash-team admissions.

Justice Alito pressed a more fundamental question about the nature of who was allegedly being harmed: who is an Asian American? As others have pointed out, the category is so vague that it includes ethnicities and nationalities as different as Afghans and Japanese, which seems arbitrary. The counsel’s reply, that universities rely on “self-reporting,” was not particularly reassuring, since he had no answer to the follow-up question of whether the applicants ought to be checking “Asian American,” and what information that box is meant to communicate to the admissions officer.

One of the most powerful lines of questioning stemmed from amicus briefs that detail how college admissions consultants have built an industry to help Asian American applicants appear less Asian and the psychological and dignitary harm this has caused. And all of this in a time when the Court has officially buried Korematsu for its racism.

In reply, the counselors declined to say aloud what seemed to be the quiet part: to be “Asian American” is, statistically speaking, to have outpaced all other racial categories in academic performance such that one’s claim to victimhood and innocence has expired. Therefore, not too many should be let in, since there are persons whose victimhood status is more urgent.

Surprisingly little was said about this question: Which legal provision should the Court decide, the constitutional or merely the statutory? On the constitutional question, there was some discussion of whether “race-consciousness” was compatible with the original meaning of the 14th amendment. Meanwhile, Justice Gorsuch seemed to be the justice most interested in Title VI, which expressly bans discrimination on the basis of “race, color, and national origin” to universities that receive public funds. He asked the solicitor general to weigh in on Justice Stevens’ “powerful” argument in Bakke that Title VI prohibited affirmative action.

In a testy exchange, the solicitor general replied that the term “discrimination” in Title VI is ambiguous. But, Justice Gorsuch snapped back, is that same term also ambiguous in Title VII, which prevents sex discrimination? Was Bostock wrongly decided? The solicitor general was quick to reply in the negative to the latter. As some suspected at the time, it seems that Gorsuch’s opinion in Bostock was indeed the beginning of a larger “textualist” project to reinterpret the Civil Rights Act.

In the end, perhaps the most telling exchange came after Harvard’s counsel opened his argument by channeling the various educational and societal benefits of diversity that Justice O’Connor had championed in Grutter. And, he continued, race remained essential to this goal. At the same time, counsel maintained that race only made a decisive difference in a relatively small percentage of cases. The Chief Justice’s query in response to this suggestion may presage where he and the Court will land next June: “[So] there is only a little racial discrimination in the case?”

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