Supreme Court to Take Up Affirmative Action Monday

Steven D. Schwinn, University of Illinois Chicago School of Law

The Supreme Court will hear oral arguments in the affirmative action cases on Monday. The Court's expected to overturn its rulings allowing race-based affirmative action in higher education, or at least to limit them sharply.

Here's my oral argument preview, from the ABA Preview of United States Supreme Court Cases, with permission:

FACTS

This case involves two different university admissions policies, but they are very similar. Both policies assess each applicant based on a variety of factors, including race, as part of a holistic and individualized review in order to achieve the educational benefits that come from student-body diversity. Neither policy uses racial quotas or points or otherwise assigns a rigid or categorical benefit based on an applicant’s race. Both institutions continue to use race as one of many factors in admissions only after they examined whether they could achieve their desired student-body diversity without race, and determined that they could not. And both institutions engage in ongoing efforts to assess their affirmative-action programs and to determine whether race-neutral alternatives might achieve the broad diversity they seek.

That said, let’s look at each policy more carefully.

Under Harvard’s policy, the school first compiles an application file for each candidate that includes a transcript, standardized test scores, and recommendation letters; an overview of the applicant’s high school; information about the applicant’s extracurricular activities, athletic participation, honors, and prizes; the applicant’s essays; the applicant’s intended field of study; the applicant’s family and demographic information; and reports from alumni or staff interviews.

A “first reader” then makes a tentative assessment of each applicant in four areas: academic, extracurricular, athletic, and personal. These numerical ratings provide a “preliminary” “starting point” for the Admissions Committee’s later assessment. The school does not admit or deny students based on these ratings. And first readers do not consider race in assigning an initial rating.

Next, first readers assign a “school support rating” and an “overall” rating. In assigning the overall rating, first readers may give “tips” to qualities such as unusual intellectual ability; strong personal qualities; outstanding creative or athletic abilities; or backgrounds that expand the socioeconomic, geographic, racial, or ethnic diversity of the class. First readers can also give tips to recruited athletes, legacy applicants, applications on the Dean’s or Admissions Director’s interest lists, and children of faculty and staff.

First readers send the applications of competitive candidates to subcommittee chairs, who also assign preliminary ratings. Regional subcommittees meet to decide which candidates to recommend to the full Admissions Committee.

The full 40-member Admissions Committee then meets over several weeks to discuss candidates and make admissions decisions based on all the information in the applicants’ files. (At the full Committee stage, the earlier preliminary ratings “fade into the background” and the Committee focuses on the whole files.) During this process, the Dean and Director of Admissions periodically review one-page summaries of the applicant pool and the tentatively admitted class. These “one-pagers” include academic interests, geographic region, citizenship status, socioeconomic circumstances, gender, race, and legacy and recruited-athlete status. This information is used to forecast yield rates (which can vary across characteristics), “to evaluate the effectiveness of efforts to recruit diverse students,” and to “identify anomalies in the representation of students with certain characteristics, including race.” Based on this information, the Admissions Committee may “give additional attention to applicants” from an underrepresented racial group in order “to ensure any significant decline is not ‘due to inadvertence or lack of care.’” If the expected yield exceeds the available class slots (around 1,600), the Committee can reduce the admitted class based on one or more characteristics of each applicant, including race.

Harvard also uses several race-neutral programs to achieve diversity. For example, it engages in targeted outreach to encourage racial minority students to apply, and it offers generous financial support to make the costs of attendance more affordable for all students. In 2017, Harvard established a committee to evaluate race-neutral alternatives. But after considering 13 separate alternatives, “the committee concluded that none would currently allow Harvard to achieve the educational benefits of diversity while maintaining its standards of excellence.” The school now started a process to reevaluate that conclusion.

Under UNC’s policy, the school compiles an application file for each candidate, usually from the Common Application, a standard application used by hundreds of institutions. Students may indicate a range of characteristics and background information, including military service, foreign-language proficiency, career interests, and race.

Readers in UNC’s admissions office then read each file guided by a non-exhaustive list of more than forty criteria, including academic performance, athletic or artistic talents, and personal background. Readers then make a provisional decision. A second reader reviews a majority of the files. Senior admissions office personnel review a sample of files. And finally, a committee of veteran readers reviews provisional decisions from each high school.

UNC’s individualized, holistic review “considers all aspects of an applicant’s background and values many kinds of diversity.” For example, UNC considers veteran status, geographic diversity, community service, socioeconomic status, work history, creativity, capacity for leadership, and more. When the school considers race, it does so alongside these other factors. “[A]n applicant’s race may occasionally tip the balance toward admission in an individual case, but almost always does not.”

Since 2004, UNC has also implemented several race-neutral efforts to achieve diversity. For example, the school provides resources to make the cost of attending affordable to all students. It “engages in significant recruiting efforts to encourage diverse students to apply and enroll.” It partners with underserved high schools in the state to increase applications from low-income, first-generation, and underrepresented applicants. And it “recruit[s] high-achieving community-college students.” More recently, UNC formed a working group and, separately, a committee on race-neutral alternatives in admissions. While the committee continues to study and analyze race-neutral alternatives (including expert analysis and the district court’s findings in this case), UNC has “not yet identified a workable race-neutral alternative,” although it “remains steadfastly committed to doing so.”

Students for Fair Admissions, Inc. (SFFA), a membership organization that spearheads challenges to affirmative-action programs, sued Harvard, arguing that the school impermissibly used race in its admissions decisions, to the detriment of Asian Americans. The district court rejected SFFA’s claim and upheld Harvard’s admissions program; the United States Court of Appeals affirmed; and the Court granted certiorari.

SFFA also sued UNC. The district court similarly rejected SFFA’s claims. Given that the Court had agreed to hear the Harvard case, SFFA asked the Court to bypass an appeal to the circuit court and grant “certiorari before judgment.” The Court agreed and consolidated the UNC case with the Harvard case.  

CASE ANALYSIS

Under Court precedent, a college or university can use race in its admissions policy so long as the use of race is narrowly tailored and necessary to achieve a compelling government interest. (This test, “strict scrutiny,” is the same test that the Court applies whenever the government uses race in whole or in part to identify individuals for any purpose.) This means that a college or university can use race as one factor among many in a holistic, individualized review of each applicant in order to achieve the educational benefits that come from student-body diversity. Grutter v. Bollinger, 539 U.S. 306 (2003); Fisher v. University of Texas, 136 S. Ct. 2198 (2016). But an institution cannot use racial quotas, assign points for race in the admissions process, or assign any other rigid, categorical benefit according to an applicant’s race. (The Court adopted these standards for public college and universities, like UNC, under the Equal Protection Clause. But they apply exactly the same to private institutions that receive federal funds, like Harvard, under Title VI.)

In challenging the Harvard and UNC policies, SFFA argues first that the Court should overturn Grutter and categorically prohibit any use of race in university admissions. It argues that under Brown v. Board of Education and its progeny, schools cannot use race “as a factor in affording educational opportunities.” And “[b]ecause Brown is our law, Grutter cannot be.” Moreover, SFFA says that the use of race in university admissions is based only on “stereotyping” (that applicants can contribute to ideological diversity because of their race), not evidence, and that Grutter wrongly gives universities more deference than other institutions (like the military) in their use of race. It claims that Grutter has led to all kinds of problems, including “anti-Asian stereotyping, race-obsessed campuses, declines in ideological diversity, and more.” And finally, SFFA contends that “Grutter cannot generate serious reliance interests,” because the ruling itself predicts that universities will no longer need affirmative-action programs by 2028.

SFFA argues next that even if the Court retains Grutter, both Harvard and UNC violate its standards. It says that both schools “award mammoth racial preferences to African Americans and Hispanics.” SFFA claims that neither institution plans to stop using race in its admissions policy. It contends that neither school seriously considered race-neutral alternatives to achieving diversity, at least “[u]ntil they were sued.” And SFFA says that Harvard actively uses race against Asian Americans.

The schools counter (separately, but raising similar arguments) that the Court should not overturn Grutter. They claim that the original understanding of the Fourteenth Amendment (and by extension Title VI) allows the government to use race far more expansively than Grutter in order to address racial inequalities, and that generations of legislators have done just that. They say, contrary to SFFA, that Grutter is true to Brown, because, unlike Brown, affirmative action doesn’t categorically exclude anyone, because affirmative action draws on Brown’s acknowledgment of the importance of education, and because affirmative action is designed to achieve broad diversity that benefits all students. They contend that affirmative action does not stereotype, as SFFA claims. Instead, they say that race indisputably informs perspectives and contributes to ideological diversity. And they assert that Grutter itself prohibits exactly the kind of harms that SFFA describes, like discrimination against Asian Americans.

The schools argue next that their admissions policies easily satisfy Grutter’s standards. They claim that their policies use race as one of many factors in a holistic, individualized review of each candidate in order to achieve the educational benefits that come from broad diversity. They contend that they have considered and used race-neutral alternatives, but that these are insufficient, and that they engage in ongoing efforts to assess their use of race and explore alternatives. They say that the lower courts in both cases came to these same conclusions, and that SFFA badly distorts the record by claiming otherwise.

The government weighs in as amicus in support of the schools, making largely the same arguments. The government adds that it benefits from diversity in higher education in its many institutions and functions. (Notably, the government’s brief is signed by the general counsels for the Department of Defense, the Department of homeland Security, the Department of Education, the Department of Health and Human Services, the Department of Commerce, and the Department of Labor, in addition to the Department of Justice.)

 

SIGNIFICANCE

This case tests the continuing vitality of Grutter and the Court’s approach to race-based affirmative action in higher education. The lower courts in both cases ruled, after exhaustive reviews, that both schools’ affirmative-action policies satisfied Grutter’s demands. They also ruled that both schools adequately explored race-neutral alternatives to achieve the kind of broad diversity they sought, but that the schools ultimately determined that race-neutral alternatives alone would not work. Finally, they found that the schools engage in ongoing efforts to assess their use of race and explore race-neutral alterantives. Given these comprehensive rulings that these policies so comfortably satisfy Grutter’s standards, there’s really no reason the Court would agree to hear these cases except to overturn Grutter, or at least to sharply limit affirmative action in higher education.

The impact could be dramatic. In those states that ban the use of race in higher-education admissions, racial minority enrollment in competitive institutions has plummeted, even when schools engage in aggressive race-neutral efforts to diversify. The University of Michigan and the President and Chancellors of the University of California drive this point home in their separate amicus briefs in support of the schools. These experiences tell us that if schools can’t use race at all, enrollment by racial minorities could similarly plummet across the board. This would obviously harm racial minorities. According to many amici, it would also harm the workforce, government operations at all levels, and society generally, as we’d all lose the benefits of diversity in our higher-education institutions.

In determining whether to overturn Grutter, look for the Court to wrestle with the meaning of Brown v. Board of Education. By one reckoning, Brown means that the government can’t use race to segregate schools, because, given systemic racism, racial segregation inevitably results in inequalities, even for otherwise “equal” schools. (“Separate is inherently unequal.”) In other words, the government can’t use race to harm children. This view supports affirmative action, because the purpose isn’t to harm applicants, but rather to benefit all students through broad diversity.

But by another reckoning, Brown means that the government can’t use race at all, for any purpose. In other words, Brown prohibits any racial labelling, irrespective of the purpose or effect, and irrespective of broader systemic racism that might result in racial inequalities even under race-neutral government actions. Chief Justice Roberts captured this reading of Brown when he wrote that “[t]he way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” Parents Involved in Community Schools v. Seattle School District No. 1, 551 U.S. 701 (2007). This view opposes affirmative action merely because affirmative action uses race at all, for any purpose.

This Court has already adopted the latter view of Brown in other contexts. It’s likely to adopt it here, too, to overrule Grutter or to sharply limit the use of race in university admissions.

Look, too, for the Court to wrestle with the original understanding of the Fourteenth Amendment. As Justice Ketanji Brown Jackson reminded us at oral argument earlier this month in Merrill v. Milligan, the Voting Rights Act case, the original understanding allowed the government to use race in order to redress racial inequalities. In other words, the Fourteenth Amendment wasn’t designed to ban racial labelling; instead, it was designed to remedy racial inequalities, and it allowed the government to use race to do so. This original understanding tends to support race-based affirmative action. (But remember: under Grutter, the purpose of affirmative action in higher education is to achieve the educational benefits that come from broad student-body diversity, not (necessarily) to remedy racial inequalities.)

Nevertheless, this is a Court that is not at all shy about overturning long-standing precedent, history notwithstanding. And all indications point to the Court overturning Grutter here.