The Affirmative Action Decision, Part I: the majority opinions

 The Supreme Court decision and the dissents in Students for Fair Admissions vs. President and Fellows of Harvard College and Students for Fair Admissions, Inc. v. University of North Carolina et al are important milestones in the history of racial issues in the United States and how different people have come to view them.  They also invite an even broader discussion on the state of higher education in the United States and its role in our society.  Because of my lifelong interest in all of these questions, I am going to devote three relatively long posts to them.  The first, today's, will try to explain the majority opinion and the concurrences to it.  The second will analyze the dissents.  The third will deal with broader questions about higher education, the American public's views of affirmative action, and the political impact of this decision..  

In discussing to majority and minority opinions, I will try as hard as I can simply to explain them and where they come from, rather than to focus on what I think is right and wrong.  That is a very rare approach nowadays, and I doubt that I will be completely successful in sticking to it, but I regard my personal as an historian who has always enjoyed writing about legal issues to try to stick to this more traditional method.  The problem is more complicated even than that, because the majority opinions of Chief Justice Roberts and Clarence Thomas, in particular, spend a good deal of time critiquing the dissents of Justice Sotomayor and Justice Jackson.  I have decided to omit those criticisms from today's blog in order to give Sotomayor and Jackson a chance to speak for themselves first in the next one. Justice Jackson, by the way, recused herself from the Harvard case because she had previously served as a Harvard overseer, and her dissent refers specifically only to the North Carolina case.

I begin the discussion of Justice Roberts's majority opinion with some remarks about the  history of affirmative action in higher education admissions, because very few people understand the basis for the law as it was established in 1979 in the Bakke case opinion of Justice Lewis Powell and a subsequent opinion by Sandra Day O'Connor in Grutter vs. Bollinger (2003)  The Bakke case had been brought by Allan Bakke, who argued that the University of California at Davis Medical School had denied him admission because it had reserved a certain number of slots for less qualified black applicants.  The court divided three ways (and six different justices wrote opinions.)  Four justices, led by Thurgood Marshall, ruled for UC Davis on the grounds that the reserved spaces for black applicants represented an appropriate attempt to undo the effects of centuries of discrimination against black people in the US.  Four others rejected affirmative action in principle.  Powell, who wrote the controlling opinion, ruled the quota of black admissions unconstitutional and rejected the justification of redressing past grievances for such programs.  He accepted, however, the argument that all students would benefit from belonging to a racially diverse student body, and therefore authorized colleges and universities to take race into account in their admissions decisions for that purpose alone, provided that they regarded race as only one factor in admissions and did not establish quotas. 

Grutter vs. Bollinger was a parallel case brought by a white law student who claimed to have been denied admission while less qualified minority candidates had been admitted.  The University of Michigan defended its policies based on the need to create an undefined "critical mass" of minority students in its classes. Many expected the Rehnquist court--as it now was--to take this opportunity to throw out affirmative action in admissions altogether, and four justices--Rehnquist, Antonin Scalia, Anthony Kennedy, and Clarence Thomas--voted to do just that.  Sandra Day O'Connor, however, joined the more liberal members of the court--David Souter, Stephen Breyer, John Paul Stevens, and Ruth Bader Ginsburg--to reaffirm Powell's decision, allowing some consideration of race for the sole purpose of creating a more diverse educational environment. O'Connor added, however, that this goal should be regarded only as a temporary necessity, and suggested that preferences would no longer be necessary after another 25 years--that is, by 2028.  

In an essentially simultaneous case involving undergraduate admissions at the University of Michigan, Gratz v. Bollinger(2003), Judge Rehnquist led a 6-3 majority in ruling a points system for admission that added automatic points for black and Hispanic applicants as a violation of the clause of the 14th amendment promising "equal protection of the laws," and of Title VI of the Civil Rights Act of 1964, which prohibits any institution receiving federal funds (as nearly every college and university now does) from discriminating on the basis of race.  This, as we shall see, is part of the basis of the majority opinion in the current case.

The court, in short, had never suggested that the 14th Amendment to the Constitution or any subsequent legislation demanded the admission of a certain number of black and Hispanic minority students to any college or university for any purpose, including to reverse the effects of past discrimination.  It had indeed prohibited strict quotas for any purpose but simply allowed colleges and universities to make race one factor in their admissions to ensure a diverse student body.  Now Students for Fair Admissions--a small conservative organization headed by Edward Blum, who was associated with the American Enterprise Institute--decided to bring its cases against Harvard and UNC on quite narrow grounds.  Their attorneys did not explicitly reject the goal of diversity because the Supreme Court had endorsed it, but instead argued that these schools could insure an ample level of diversity by focusing on students' economic status and ignoring their race.   As we shall now see, however, the court majority went much further than that. SFFA also argued--and discovery yielded data supporting this claim--that Harvard was admitting black and Hispanic applicants with much weaker academic credentials than Asian candidates that it rejected, and was using personal evaluations of candidates to discriminate unfairly against Asians in the same way that it had discriminated against Jews from the late 1920s until sometime in the 1960s. 

Near the beginning of his opinion, Roberts presents statistics developed after discovery by Students for Fair Admissions showing that both Harvard and UNC favored equally qualified black applicants over white and Asian ones.  (This case provided far more data on the realities of admissions today than we have ever had before.)  “According to SFFA’s expert, over 80% of all black applicants in the top academic decile were admitted to UNC, while under 70% of white and Asian applicants in that decile were admitted. 3 App. in No. 21–707, at 1078–1083. In the second highest academic decile, the disparity is even starker: 83% of black ap­plicants were admitted, while 58% of white applicants and 47% of Asian applicants were admitted. Ibid. And in the third highest decile, 77% of black applicants were admitted, compared to 48% of white applicants and 34% of Asian applicants. Ibid.. . .The same is true at Harvard. See Brief for Petitioner 24 (“[A]n African American [student] in [the fourth lowest academic] decile has a higher chance of admission (12.8%) than an Asian American in the top decile (12.7%).”  He then turns to a long history of the 14th amendment and its application, noting that it began as an attempt to remove all racial discrimination from laws, only to have the Supreme Court allow for discrimination of various kinds in Plessy vs. Ferguson, which allowed for segregated railroad cars and, in effect for segregated schools.  Brown v. Board of Education, of course, unanimously overruled Plessy with regard to public education, and subsequent decisions banned discrimination in every area of life. (Oddly, while it is easy to see how the public University of North Carolina  could be found to be denying "equal protection of the laws" to its citizens by a discriminatory admissions policy, Roberts never stops to explain why that provision of the Constitution--as opposed to Title VI of the 1964 Civil Rights Act--would apply to a private university like Harvard.)  

Reviewing various other precedents, Roberts states that the Court has held that any violation of equal protection based on race, for any purpose, has to survive the legal test of "strict scrutiny."  That means, first, that the violation must "further compelling government interests," and second that it be "narrowly tailored" to achieve that interest.  The court has found only two compelling interests that justify race-based regulations or laws.  The first is to remedy "specified, identified instances of past discrimination that violated the Constitution or a statute," and the second is to avoid "imminent risks to human safety in prisons," specifically, it seems, to segregate prisoners by race to prevent a race riot.  Turning to the history of affirmative action decisions, Roberts notes that the Grutter decision had reaffirmed Bakke's prohibition of quotas or the use of separate applicant pools in order to avoid two dangers of "race-based government action." These limits, Grutter explained, were intended to guard against two dangers that all race-based government action portends. The first is the risk that the use of race will devolve into “illegitimate . . . stereotyp[ing].” Richmond v. J. A. Croson Co., 488 U. S. 469, 493 (1989) (plurality opinion).Universities were thus not permitted to operate their admissions programs on the “belief that minority students always (or even consistently) express some characteristic minority viewpoint on any issue.” Grutter, 539 U. S., at 333 (internal quotation marks omitted). The second risk is that race would be used not as a plus, but as a negative—to discriminate against those racial groups that were not the beneficiaries of the race-based preference. A university’s use of race, accordingly, could not occur in a manner that “unduly harm[ed] nonminority applicants.” Id., at 341.  And because, as the Grutter opinion observed, "racial classifications, however compelling their goals," were "dangerous," that opinion had added, “[A]ll race-conscious admissions programs [must] have a termination point”; they “must have reasonable durational limits”; they “must be limited in time”; they must have “sunset provisions”; they “must have a logical end point"; their “deviation from the norm of equal treatment” must be “a temporary matter.”  This leads Roberts to the first statement of his own conclusions.

"But we have permitted race-based admissions only within the confines of narrow restrictions. University programs must comply with strict scrutiny, they may never use race as a stereotype or negative, and—at some point—they must end. Respondents’ admissions systems—however well intentioned and implemented in good faith—fail each of these criteria. They must therefore be invalidated under the Equal Protection Clause of the Fourteenth Amendment."

To comply with strict scrutiny, Roberts argues, the universities must present compelling goals and prove that their policies achieve them.  He lists their goals and argues that there is no way to evaluate progress towards them.

"Harvard identifies the following educational benefits that it is pursuing: (1) “training future leaders in the public and private sectors”; (2) preparing graduates to “adapt to an increasingly pluralistic society”; (3) “better educating its students through diversity”; and (4) “producing new knowledge stemming from diverse outlooks.” 980 F. 3d, at 173–174. UNC points to similar benefits, namely, “(1) promoting the robust exchange of ideas; (2) broadening and refining understanding; (3) fostering innovation and problem-solving; (4) preparing engaged and productive citizens and leaders; [and] (5) enhancing appreciation, respect, and empathy, cross-racial understanding, and breaking down stereotypes.” "

"Although these are commendable goals, they are not sufficiently coherent for purposes of strict scrutiny. At the outset, it is unclear how courts are supposed to measure any of these goals. How is a court to know whether leaders have been adequately “train[ed]”; whether the exchange of ideas is “robust”; or whether “new knowledge” is being developed? Ibid.; 980 F. 3d, at 173–174. Even if these goals could somehow be measured, moreover, how is a court to know when they have been reached, and when the perilous remedy of racial preferences may cease?"

Those lists of objectives--another useful result of these lawsuits--tell us a lot about the state of higher education today, and I will return to them in a subsequent post.

Roberts then suggests that sorting applicants into the six categories recognized by the census--Asian, Native Hawaiian or Pacific Islander, Hispanic, White, African-American and Native American--is far from perfect means even to increase ethnic diversity, since "Asian" and "Hispanic," in particular, cover a multitude of different experiences. Moving forward, he asserts that college admissions are "a zero-sum game" and that it is impossible to give benefits to some groups without negative consequences for others--which the Court has supposedly prohibited. And then, citing the court's previous rejection of stereotypes, he attacks both defendants for arguing that "a black student can usually bring something that a white person cannot offer," or that race "says [something] about who you are." "We have time and again forcefully rejected the notionthat government actors may intentionally allocate preference to those “who may have little in common with one another but the color of their skin.” Shaw, 509 U. S., at 647. The entire point of the Equal Protection Clause is that treating someone differently because of their skin color is not like treating them differently because they are from a city or from a suburb, or because they play the violin poorly or well."  In the next post we shall see that two dissenters took a totally opposite view on these points.  And then, after noting that Harvard has no plans to abandon its racial preferences in five years or later, he presents evidence from the litigation that Harvard admissions officers monitor the racial makeup of every new class carefully during the process and adjust admissions to keep the ratios of different groups remarkably constant. I reproduce his table, supplied by SFFA and not disputed.

UNC, meanwhile, acknowledges that it wants to make its entering class match the demographic breakdown of the state as a whole, and that it has not managed to achieve that goal. 

Roberts then critiques at length the Sotomayor and Jackson dissents, arguing that they take a completely different view of the meaning of the Equal Protection Clause, and that they ignore most of the precedents and principles upon which he relies.  I shall return to those criticisms briefly next week while discussing those dissents.  Then, at the close of his 40+ page opinion, Roberts opens an escape hatch:

"At the same time, as all parties agree, nothing in this opinion should be construed as prohibiting universitiesfrom considering an applicant’s discussion of how race affected his or her life, be it through discrimination, inspiration, or otherwise. See, e.g., 4 App. in No. 21–707, at 1725–1726, 1741; Tr. of Oral Arg. in No. 20–1199, at 10. But, despite the dissent’s assertion to the contrary, universities may not simply establish through application essays or other means the regime we hold unlawful today. (A dissenting opinion is generally not the best source of legal adviceon how to comply with the majority opinion.) “[W]hat cannot be done directly cannot be done indirectly. The Constitution deals with substance, not shadows,” and the prohibition against racial discrimination is “levelled at the thing, not the name.” Cummings v. Missouri, 4 Wall. 277, 325 (1867). A benefit to a student who overcame racial discrimination, for example, must be tied to that student’s courageand determination. Or a benefit to a student whose heritage or culture motivated him or her to assume a leadership role or attain a particular goal must be tied to that student’s unique ability to contribute to the university. In other words, the student must be treated based on his or her experiences as an individual—not on the basis of race." These comments also go to the present and future of higher education and I shall take them up eventually.

Joining Roberts' opinion, Justice Thomas--the court's senior justice and, of course, its second black member--notes that he had dissented from Grutter in 2003 and has always opposed affirmative action. "Because the Court today applies genuine strict scrutinyto the race-conscious admissions policies employed at Harvard and the University of North Carolina (UNC) and finds that they fail that searching review, I join the majority opinion in full. I write separately to offer an originalist defense of the colorblind Constitution; to explain further the flaws of the Court’s Grutter jurisprudence; to clarify that allforms of discrimination based on race—including so-called affirmative action—are prohibited under the Constitution;and to emphasize the pernicious effects of all such discrimination," he says.

Thomas opens with his own lengthy history of the concept of equal rights.  Unfortunately, in my opinion, while Thomas notes that the 14th Amendment effectively reversed Justice Taney's Dred Scott ruling that black people had never had the rights of citizens, he does not present any of the evidence--and there is a great deal as I pointed out years ago--that Taney's decision was ludicrous as a matter of law and history even then.  After arguing at length that the 14th amendment and other Reconstruction legislation established the idea of a completely colorblind Constitution--an idea first articulated, sadly, in Justice Harlan's lone dissent in Plessy v. Ferguson in 1896--Thomas takes on Justice Sotomayor's and Justice Jackson's contrary position that the 14th Amendment allows race-based actions on behalf of disadvantaged groups.  Again I defer discussion of those arguments until next week. 

Justice Gorsuch's dissent focuses in my opinion on just one interesting issue.  The Court would have done better over the decades, he argues, to have avoided an equal protection argument under the 14th Amendment and stuck to the plain words of Title VI of the Civil Rights Act, which as we have seen bans any racial discrimination by any institution that receives federal funds.  

In sum, the majority opinions throw out these two admissions procedures (and, by implication, hundreds more besides) based on their failure, in their opinion, to follow the court's own precedents.  They could be read not to rule out any program designed to promote racial diversity if it could be shown to reflect a compelling interest by reaching measurable goals. It is not clear however how such a program could work.  

As I said at the beginning of this post, we must understand that the court never accepted the idea of racial preferences to correct for past discrimination.  Both Powell and O'Connor tried to justify them on other grounds, which, Roberts and his majority would argue, have been impossible to apply constitutionally.  We shall see next week that Sotomayor and Jackson--influenced by decades of hew thinking on historical, legal, and racial questions--take an exactly opposite point of view.