Historian David Kaiser on the Affirmative Action Decision

Jul 05, 2023

The Supreme Court’s affirmative action decision is now on the books, but the conversation is not nearly over. You can look forward to much more discussion in this space regarding the decision, the justices’ opinions, and how the Court’s rejection of the status quo will affect race and education. For now, though, I’d like to direct your attention to an ongoing series on the decision by my friend, the historian David Kaiser. David has completed two of three long blog posts on the subject. The first focuses on the majority opinion and concurrences, the second on the dissents, and the forthcoming third will address “broader questions about higher education, the American public's views of affirmative action, and the political impact of this decision.”

I reproduce a few key paragraphs from David’s first post below, but I strongly encourage everyone to go read the first two in their entirety and the third when it’s available. They provide detailed but straightforward summaries of the opinions, along with David’s measured and perceptive commentary. I also invite you to check out my October 2021 TGS episode featuring David, “The Case against ‘The Case for Reparations’.”

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Affirmative action ruling leaves colleges looking for new ways to promote diversity

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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 dissemination. 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.

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Continue reading David Kaiser’s “The Affirmative Action Decision, Part I: The Majority Opinions”