A Time Limit on Affirmative Action?

On Monday, 44 years after racial affirmative action in American higher education was deemed constitutionally permissible in Regents of the University of California v. Bakke, the Supreme Court heard oral arguments in two cases seeking to reconsider that precedent.

In a 5-4 vote in the 1978 case, the Supreme Court essentially introduced “affirmative action” and racial “diversity” into equal protection and civil rights law. Though the Court rejected a racial quota in admissions that would have set 16 spaces aside for minority students, it ruled that race could be considered in admissions as a “plus” or one of the “pertinent elements” to achieve student diversity.

Twenty-five years later in the 2003 case Grutter v. Bollinger, by another 5-4 vote, the Court approved of “racial and ethnic diversity” as an independent and separate admissions consideration for applicants to the University of Michigan Law School. Writing for the majority, Justice O’Connor famously said that the “Court expects that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.”

As in Bakke, the margin of the Grutter decision was razor thin. In Fisher II (2016), another affirmative action case raised in Monday’s oral arguments on Monday, the margin was similarly thin at 4-3. What is more, the composition of the Court in the oral arguments Monday was largely new to the issues. Five of the current justices were not on the Court for the 2016 Fisher II case, and Justice Thomas is the only current justice who remains from the 2003 Grutter case.

Both cases heard on Monday were initiated by Students for Fair Admissions (SFFA), an organization representing Asian-Americans who claim that the university defendants, Harvard and the University of North Carolina, discriminate against Asian Americans in admissions.

Together, oral arguments in the two cases on Monday lasted five hours, and the transcripts from the two cases total 300 pages. This article does not evaluate the overall proceedings or attempt to predict the outcome. Instead, it delves into the seven primary issues in argument: Justice O’Connor’s 25-year time limit on race consciousness in higher education, counting by race, the meaning of “educational diversity,” “viewpoint” diversity, Harvard’s “personal rating” of applicants, the “new originalism,” and the positions taken by the Biden administration in the oral arguments.

No issue received more attention in oral arguments than Justice O’Connor’s famous statement writing for the Court in Grutter, that 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 Kavanaugh pointed out that next year’s matriculating class will graduate in 2028—that is, 25 years from Grutter. He also mentioned that O’Connor had prefaced the expectation by referring to the fact that Bakke had been handed down precisely 25 years before Grutter. Justice Barrett asserted that what the Grutter Court meant was that “we can’t imagine it’s to go on more than another 25 years.” Counsel for SFFA said that even if the time limit is regarded as only “aspirational,” Bakke wanted “colleges to be seriously looking at how to get away from race.”

But “that’s not actually happening,” he observed.

Counsel for UNC argued that “we don’t read the 25 years as some sort of strict expiration.” Justice Jackson argued that the 25-year deadline cannot be applied across the board because “we start in different places…in our various communities.” In response to Chief Justice Roberts asking her about her conception of when race may be eliminated, the U.S. solicitor general, arguing for the Biden administration, replied that “I can’t give you a precise number” in years but “our society has made some progress toward that goal.” Justice Roberts replied that Justice O’Connor had clearly said “that race conscious admissions programs must be limited in time.”

In the Harvard case, counsel for SFFA was not reticent about his view of the Court’s expectation concerning the next 25 years of racial preferences: “If we still need race, it’s not that you get another 25 years. It’s that we then declare racial preferences to be a failure and call it off and go to… race neutrality and try that instead.” Harvard’s counsel said that the university agrees in general with the goal of 25 years but “doesn’t have a date on it.” Likewise the solicitor general maintained that it was not “tenable” to regard the Bakke Court’s 25 years as a deadline. Instead, “being able to achieve the benefits of student body diversity without taking race into account” was contingent on the “rate of change in society.”

In the key exchange in the UNC case, Justice Gorsuch, obviously thinking of quotas and racial set-asides, pressed UNC’s counsel about “how you can do diversity… without taking account of numbers.” And “trying to get to the core of it rather than circling around,” Gorsuch rejected UNC’s answer that the university engages in an “individualized holistic review” or “the minimal consideration of race on a holistic basis.”

Justice Alito interjected: “What is your goal, and how will a court ever be able to determine whether your goal has been reached?” UNC replied that its goal was based on a “qualitative,” not a quantitative, standard that is “not susceptible to rigorous review.” 

Justice Barrett interjected that Grutter meant that “governmental use of race must have a logical end point” or else it is “dangerous.” She asked: “How do you know when you are done?” UNC’s counsel replied that the university does not need to reach a goal so long as it is “achieving the benefits of diversity” along the way; history shows that “these programs do end” on their own. Chief Justice Roberts interjected that “it’s not going to stop mattering at some particular point. You’re always going to have to look at race because you say race matters to give us the necessary diversity.” 

Justice Kavanaugh pointed out that there are today nine states that forbid race as a consideration in admissions, which on their own still “produce significant numbers of minority students on campuses.” Justice Sotomayor retorted that in some of those states minority admissions have declined.

In both cases, Justice Thomas challenged the principle of “educational diversity” as having any real constitutional or even educational meaning. He disputed that “race tells you something about a person” or necessarily leads to a “broader diversity of viewpoints.” Thomas held further that the idea that “race necessarily informs something about anyone’s qualifications is antithetical to this Court’s precedents and to our Constitution.” 

He said that he did not “have a clue what [educational diversity] means.” He challenged UNC’s counsel to “give a specific definition of diversity” and describe “the educational benefits of diversity.” Counsel replied that diversity means “a diverse set of criteria that extends to all different backgrounds and perspectives and not solely limited to race,” asserting in reply to Thomas that there was an “actual truth-seeking function of learning in a different environment.”

Along similar lines, Chief Justice Roberts inquired why, between two applicants of the same “viewpoint,” one white and the other African-American, the African American can get a “benefit” because of his race alone, and whether that involved something “very stereotypical.” Harvard’s counsel avoided the question, so Roberts turned to an opposite scenario. He proposed two African-American applicants who have “entirely different views” whom Harvard regards as “eligible for the same increase in the opportunities for admission based solely on their skin color” regardless of whether their views contribute to diversity or not.

Counsel tried to avoid that question as well by saying that, with so many hyperqualified applicants to Harvard, some may get an extra racial “tip”—to which Roberts replied that counsel was conceding that “in some cases,” race “will be determinative” of admission to Harvard. Counsel conceded that point but immediately attempted to justify it by making a comparison to a year when the Harvard orchestra needs an oboe player; an oboe-playing applicant might get a “tip” in admission.

Roberts responded: “We did not fight a Civil War about oboe players.”

Harvard awards a “personal rating” to each applicant in its admissions process. That rating, distinct from the traditional personal recommendations by guidance counselors and others, is an evaluation of certain factors like “integrity, courage, kindness, and empathy.” When compared to others, Asian Americans received “by far the worst scores,” SFFA pointed out in its brief, and argued that the rating was “wholly subjective.” In fact, Asian Americans ranked below African Americans and Hispanics. This was a major point of contention at oral arguments.

Counsel for Harvard defended the district court’s finding that there was no racial discrimination in the comparing of personal ratings. Challenged by Justice Alito, who specifically asked whether Asian Americans “lack integrity, courage, kindness, and empathy to the same degree as students of other races” and whether there is “any explanation for the disparity between the personal scores that are given to Asians,” Harvard’s counsel contended that the disparity was “slight.” But he added, changing the subject, that the academic and extracurricular rankings of Asian Americans were higher than those of other groups.

Overall, counsel fell back on referring to the trial court’s findings in Harvard’s favor on this issue. When Justice Alito persisted that the trial court had found the personal rating of Asian Americans to be “statistically significant and negative,” Justice Sotomayor rallied to Harvard’s defense by averring that discrimination by personal rating is different from discrimination by race. Counsel for SFFA retorted that the personal rating was definitive of discrimination against Asian Americans because “when you take the personal rating out of an admissions model, it shows a statistically significant disparity against Asian Americans in admissions decisions.”

In advocating that Grutter not be overturned, Justices Kagan, Sotomayor, and Jackson relied heavily on the rulings and findings of fact in both cases in the lower federal courts, where both universities prevailed. So, unless the Supreme Court would decide that the findings of fact by the trial courts were “clearly erroneous”—a highly unlikely scenario—the only possible resolution of the two cases is for the Court to specifically vindicate or overturn the constitutionality of Grutter.

Justice Sotomayor countered that race can be used as a stand-in or surrogate for other factors, such as having attended an “under-resourced school” or “socio-economic” status. She turned to what appears to be a newly formulated theory about the “originalism” of the 14^th Amendment, namely, that after its ratification in 1868, it allowed for the race-conscious policies of the Reconstruction era, such as the Freedmen’s Bureau. As was widely reported, Justice Jackson invoked this “new originalism” three weeks ago in the oral arguments in the Alabama voting rights and redistricting case of Merrill v. Milligan.

SFFA’s counsel disputed the basis of the new originalism, arguing that the policies of the post-Civil War era were “remedial measures” as a “response to the end of slavery,” completely different from the question at hand today, which is the use of “race to achieve the educational benefits of diversity.”

Jackson praised UNC’s “holistic review process” with “40 factors” considered, and criticized SFFA’s counsel for seeming to argue that “all they look at is race.” Counsel responded that consideration of race is barred by the Constitution, and the other 39 factors are not.

Justice Kagan added that “race is part of the culture and the culture part of the race” and accused SFFA of being indifferent to whether institutions of higher education “look like America.”

The Biden administration filed briefs in support of both Harvard and UNC, arguing that “the educational benefits of diversity remain a compelling interest of vital importance to the United States.” The Court granted the solicitor general oral argument time in both cases.

In the UNC case, she argued that “student body diversity” produces “better colleagues, better citizens, and better leaders,” including in “our nation’s military.” Justice Thomas asked her “what is included in diversity,” and she replied that diversity was valuable in the military service academies, and added that the interest of the United States government in diversity is extended “to other federal agencies, to the federal government’s employment practices itself, and to having a set of leaders in our country who are trained to succeed in diverse environments.”

In response to a question from Chief Justice Roberts, the solicitor general, whose basic position was that Grutter should be upheld, rejected Justice O’Connor’s 25-year expectation. Roberts rejoined that Justice O’Connor “said race-conscious admissions programs must be limited in time. That was a requirement.” The chief justice then asked, “So that part of Grutter should be disregarded?” The solicitor answered that what was being denied was only that part of Grutter that “set a firm expiration date.”

Overall, then, when next year’s matriculating freshman class graduates in 2028, it will be 50 years since racial affirmative action was formulated as a constitutional doctrine in Bakke and 25 years since Justice O’Connor said in Grutter that she expected it to end in 25 years. It is entirely possible that the two cases could be decided on whether that expectation was an inherent and necessary part of the Grutter holding or whether it was merely a hopeful dictum.

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