By Matthew Vadum of Epoch Times
The Supreme Court may end the use of race-based so-called affirmative action in college admissions in cases later this year, legal experts told The Epoch Times.
Although left-wing activists such as advocates of Marxist-derived critical race theory say race-conscious government policies are essential to dismantle the systemic racism they say pervades the American experience, critics say using race in the college admissions process is both anachronistic and wrong.
Critics quote then-Supreme Court Justice Sandra Day O’Connor, who believed the policy was a necessary evil. In Grutter v. Bollinger (2003), she wrote: “We expect that 25 years from now the use of racial preferences will no longer be necessary to further the interest approved today.”
Making race-focused admissions decisions is “dangerous,” O’Connor wrote, calling it a “deviation from the norm of equal treatment.” Such programs must “be limited in time,” she stated, adding that “all governmental use of race must have a logical end point.”
Although 2028, the year O’Connor said the policy might no longer be needed, is still six years away, two lawyers interviewed by The Epoch Times said the use of race in admissions may come to an end sooner–if enough conservative justices on the nine-member Supreme Court are willing to show the courage needed to make history.
Some speculate that liberal Justice Stephen Breyer, who announced Jan. 27 he would retire at the end of the court’s current term, might have voted with a majority against affirmative action in the upcoming cases, but he almost certainly will not be a member of the court when the cases are heard, probably in the fall or winter.
Breyer voted with the 6-3 majority in Grutter’s companion case, Gratz v. Bollinger, to strike down the University of Michigan’s system, in which points were automatically distributed to every applicant from an underrepresented minority. That system ignored the individualized consideration requirement from Regents of the University of California v. Bakke (1978), the court found. In Bakke, the court struck down racial quotas, but found that a narrower use of race to bring in more minority students could be constitutional in some circumstances.
Justice Clarence Thomas was also on the court for the Michigan case. He, too, voted to find the system was unconstitutional.
President Joe Biden is under pressure from the base of the Democratic Party to replace Breyer with a justice who is significantly to his left, and who would presumably favor affirmative action.
On Jan. 24, the court agreed to hear Students for Fair Admissions Inc. (SFFA) v. President and Fellows of Harvard College, court file 20-1199, and SFFA v. University of North Carolina (UNC), court file 21-707. The cases were consolidated and will be heard together. Both of the federal judges who heard the cases at the trial court level were appointed by then-President Barack Obama.
Considered a conservative group, SFFA calls itself “a nonprofit membership group of more than 20,000 students, parents, and others, who believe that racial classifications and preferences in college admissions are unfair, unnecessary, and unconstitutional.”
Harvard and UNC are, respectively, the oldest private college and the oldest public college in the United States.
In the Harvard case, U.S. District Judge Allison Dale Burroughs found after a 15-day non-jury trial for Harvard, ruling its admission policy that was said to discriminate against Asian American applicants was not motivated by “racial animus … or intentional discrimination” and was “narrowly tailored to achieve diversity and the academic benefits that flow from diversity.” The U.S. Court of Appeals for the 2nd Circuit upheld the lower court’s decision, ruling against SFFA.
The Trump Department of Justice (DOJ) weighed in, siding with SFFA in an appeals court brief that stated the evidence at trial showed “Harvard actively engages in racial balancing that Supreme Court precedent flatly forbids.”
But the Biden administration is siding with the college.
In a brief (pdf) filed Dec. 8, 2021, U.S. Solicitor General Elizabeth Prelogar urged the Supreme Court to reject the case, arguing that overturning Grutter and “other precedents authorizing consideration of race in university admissions,” would cause upheaval among “colleges and universities around the Nation” that rely on those precedents.
In the North Carolina case, U.S. District Judge Loretta Copeland Biggs held an eight-day non-jury trial to determine if UNC was complying with existing precedent.
The court approved the school’s admissions policy because it uses race “flexibly as a ‘plus’ factor” and only as “one among many factors.” The court found UNC had no viable race-neutral alternatives to help it “achieve the educational benefits of diversity about as well as its current race-conscious policies and practices.”
The court stated that providing admissions preferences based on socioeconomic status instead of race would not work because “the majority of low-income students are white,” so the schools would just “be choosing more white students.” Race should be used by UNC indefinitely because it is “interwoven in every aspect of the lived experience.” Until the U.S. one day resolves its “struggle with racial inequality,” minority students would continue to be “less likely to be admitted in meaningful numbers on [race-neutral] criteria.”
SFFA promptly filed an appeal with the U.S. Court of Appeals for the 4th Circuit, but before that court could rule on the case, also sought review from the Supreme Court, which was granted.
SSFA President Edward Blum said in a statement that his group hopes “the justices will end the use of race as an admissions factor at Harvard, UNC, and all colleges and universities.”
Surveys from both Pew Research Center and Gallup show nearly 75 percent of Americans of all races “do not believe race or ethnicity should be a factor in college admissions.”
“The cornerstone of our nation’s civil rights laws is the principle that an individual’s race should not be used to help or harm them in their life’s endeavors.”
Blum said his group hopes the court “will use these cases to begin the restoration of the colorblind legal covenant that holds together Americans of all races and ethnicities.”
Curt Levey is president of the Committee for Justice, a nonprofit that describes itself as “devoted to restoring the Founders’ vision of a federal judiciary governed by the rule of law and anchored by the Constitution.” Levey said he was part of the legal team for the plaintiffs who challenged affirmative action policies in the Grutter and Gratz cases.
Unlike in the past, the five votes needed on the nine-member Supreme Court to abolish affirmative action may finally be there, Levey told The Epoch Times in an interview.
Although Chief Justice John Roberts may be “a squish” on many issues important to conservatives, he has been “quite clear” on this issue, Levey said.
Levey was referring to Parents Involved in Community Schools v. Seattle School District No. 1 (2007), which Roberts wrote. Roberts said the court was rightly concerned “that racial balancing has no logical stopping point.”
“Racial balancing,” he wrote, “is not transformed from patently unconstitutional to a compelling state interest simply by relabeling it racial diversity.”
“The way to stop discrimination on the basis of race is to stop discriminating on the basis of race,” Roberts concluded.
Given the presence of the six-member conservative bloc, there appears to be majority support for ending the diversity rationale for racial preferences, Levey said.
“The question is, do they have the guts to do it?”
If they go against establishment thinking on affirmative action and banish race-based admissions, the justices will face “the ire of the elites” and minority enrollment at institutions of higher learning “would probably significantly fall,” Levey said.
This would prove “very embarrassing to all of these progressive university presidents,” he said. The justices are “under as much pressure to save affirmative action as they are to save the constitutional right to abortion, and only time will tell whether they have the courage to stick up for their principles.”
Levey said he was “hopeful” but also “a realist.”
Roberts is “very concerned with the legacy of the Roberts court and [Justice Brett] Kavanaugh is obviously worried about his reputation and [Justice Amy Coney] Barrett — we just don’t know.”
Striking down affirmative action “would be bold, [but] it would be the right thing to do.”
Wen Fa is an attorney at the Sacramento-based Pacific Legal Foundation, a national public interest law firm that filed friend-of-the-court briefs in the upcoming SFFA cases.
University admissions have been “plagued with racial preferences” since the Grutter ruling, Fa told The Epoch Times in an interview.
The decision, which “allowed for the use of racial preferences to further an amorphous interest in diversity,” was “wrongly decided.”
“We think that the principle of equality before the law prohibits racial discrimination, and just as the principle of equal protection prohibits the use of racial discrimination elsewhere, it should also prohibit racial discrimination in the context of college admissions,” Fa said.
“We hope that the Supreme Court took both of these cases to overrule the Grutter decision, and to say–once and for all–that racial preferences have no place in the context of university admissions,” he said.
“Schools should treat individuals as individuals and judge them based on their own individual abilities, achievements, and aspirations and not on the basis of their membership in a broad arbitrary racial group.”
Race-based discrimination hurts people and can lead to stereotyping, Fa said.
For example, college guidebooks counsel Asian American students “not to say that they want to be a doctor, or they want to major in math and sciences, because that would be a negative on their application.”
Asian American applicants generally have higher academic scores and higher extracurricular scores, so “to suppress the number of Asian American students at Harvard, and to get at Harvard’s desired racial balance, the admissions officers score Asian American applicants lower on these personal ratings, which is a subjective metric that purportedly judges students by likability, courage, kindness, [and] things like that.”
Fa said this leads to Asian American applicants being “stereotyped as unkind, cowardly, unfriendly, even though the alumni interviewers who actually meet these students routinely disagree, and that’s just one example of the type of pernicious stereotypes that racial preferences can lead to.”
Meanwhile, liberal supporters of affirmative action have considered the ideological inclinations of the justices and seem resigned to the fact that the Supreme Court is not going to do what they want. Some are already writing affirmative action’s epitaph.
Sherrilyn Ifill, president of the NAACP Legal Defense and Educational Fund, expressed alarm.
The court’s decision to hear the cases “seriously threatens the nation’s ideals of equality,” she said, and “comes amidst the backdrop of widespread efforts to erase and deny the experiences of people of color.”
“As our country experiences a resurgence of white supremacy, it is as important now as ever before that our future leaders be educated in a learning environment that exposes them to the rich diversity that our country has to offer, so they may be fully prepared for the many challenges ahead.”
Opting to hear the cases is in itself “a very, very significant threat to the continued constitutionality of affirmative action,” Tanya Washington, a law professor at Georgia State University, told ABC News.
“This is not just going to impact the elite,” she said.
“What we are going to see, what I predict, is a cataclysmic drop in the numbers of Latino, black and indigenous students attending institutions of higher ed.”
William Spriggs, a professor of economics at Howard University, lamented that the court will probably “by hook or by crook, find our way back to 1950. Whatever it takes. And that would be really unfortunate.”