The use of race as a factor in admissions has been a common controversy of the college admissions process for about fifty years now. The Supreme Court has just ruled in two linked cases against Harvard (6-2) and UNC (6-3) brought by Students for Fair Admissions (SFFA), stating that both schools unconstitutionally discriminated against Asian-American applicants. Justice Jackson recused herself from the Harvard case but wrote a dissent focused on the UNC case.
This is likely one of the most important Supreme Court cases to take place in the last twenty years. It marks a legal turning point, the first court case to say that race should not be be used as a factor in college admissions decisions. However, SFFA v. Harvard will not end the use of race as a factor in college admissions, much less affirmative action as a whole.1
The “Bakke” ground of modern affirmative action
In 1973, Allan Paul Bakke, an engineer working for NASA, applied to the UC-Davis medical school. Bakke was white, and was denied admission while less qualified applicants were admitted through a special program that reserved 16 out of 100 spots for minority applicants. This case went to the Supreme Court in 1978.
Justice Powell wrote the majority opinion alone, joined by five separate partially concurring opinions. In a complex decision, the court opined that some types of affirmative action were allowed, just not this particular type.2 Justice Blackmun, in his partial concurrence, described affirmative action programs such as UC-Davis’s as necessary but hopefully temporary, expressing a “slim hope” that they might be obsolete by 1988:
I would hope that we could reach this stage within a decade at the most. But the story of Brown v. Board of Education, 347 U. S. 483 (1954), decided almost a quarter of a century ago, suggests that that hope is a slim one.
The core problem faced by the Burger court was this: A majority of the justices believed that affirmative action was necessary to address the problem of their day, but it was crystal clear that Bakke had been harmed. The admissions process was systematic and logical enough to determine Bakke was one of the top-ranked non-admitted candidates.
The compromise of the court pointed towards the next fifty years of practice: Affirmative action would be allowed as long as the inner workings remained murky enough that specific harms to specific persons could not be identified. The courts ruled in Bakke’s favor, and Bakke was admitted in 1978.3
Grutter v. Bollinger: The ticking time bomb
In 1996, Barbara Grutter applied to the University of Michigan law school; like Bakke, she was white, and saw numerous less-qualified minority applicants admitted. However, unlike Bakke, she could not show that she had been excluded on the basis of race, because there had also been some significantly less qualified white applicants admitted.4
It was clear on a statistical level that affirmative action had a large impact on minority applicants, and it could be identified very clearly as a “plus” factor responsible for the admission of specific minority applicants. UM’s own expert, testifying on the success of holistic affirmative action, stated that roughly 10.5% of the pool of admitted applicants for the year 2000 were racial minority students who would not have otherwise been admitted.
However, the opacity of holistic admissions meant while it was clear how many white applicants were displaced by affirmative action, nobody could identify precisely which ones. The Supreme Court ruled against Grutter.5 Writing for the majority, Justice O’Connor cautioned that even artfully obscured affirmative action must be considered a strictly temporary measure:
We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.
In his dissent, Justice Thomas pointed out that black applicants’ LSAT scores had begun to plateau in the early 1990s, arguing that affirmative action had already reached a point of diminishing returns.
The slow explosion
It has now been half a century since affirmative action became broadly fashionable in university admissions programs. The beneficiaries of those earliest programs have reached retirement age, contemporary with the oldest three Supreme Court justices6 as well as typical living grandparents of current college applicants.7
Based on almost all available data, the gaps in academic achievement by race between black and white students has changed very little 1990 to the present. Some measures show modest closure of the gap, while others (such as NAEP long-term trend data) suggest it has increased recently. Meanwhile, Asian-Americans have become targets for admissions reductions due to their rapid gains in academic achievement. It is clear affirmative action will not complete its mission by Grutter'‘s implied 2028 deadline.
This reality was reflected on both sides of the recent Supreme Court decision. Writing for the majority, Roberts said there was “no end to race-based college admissions in sight.” In her dissent, Justice Sotomayor criticized “the fantasy that racial inequality will end at a predictable hour.”
The center did not hold
Neither the majority nor the minority writing in SFFA v. UNC and SFFA v. Harvard embraced the fragile logic sketched out by the decisions in Grutter and Bakke. The majority drew from dissenting opinions in Grutter, while the minority drew from dissenting opinions in Bakke.8
Justice Roberts, writing for the majority, rejected the legal fiction that obscuring the mechanisms of affirmative action would alter the fact that “[a] benefit provided to some applicants but not to others necessarily advantages the former group at the expense of the latter.”
In a sharp contrast in terms of both tone and substance, Justice Jackson’s dissent broadly called for the courts to “get out of the way and let [universities] do their jobs” and for America to “do what evidence and experts tell us is required to level the playing field,” conspicuously not endorsing any limitations on affirmative action.9
What happens next?
In 1996, California voters passed Proposition 209, which strictly forbid the University of California system from using race as a factor in admissions. The result is that UC administrators who believe in affirmative action have spent the last 27 years trying to work around Proposition 209.10 Many people will work diligently and creatively to circumvent SFFA v. Harvard.
Many schools will still make race-based admissions decisions, courting additional lawsuits in the belief that this is morally correct and the hope that they will be able to develop a lawsuit-proof method sooner or later. Harvard has all but announced that they will actively pursue this route.
There will be a wave of lawsuits. Universities wishing to avoid becoming a target can do so by abandoning holistic admissions and using formulaic admissions processes that can easily be defended as race-neutral in court. This change in approach may also be mandated by state legislatures responding to the Supreme Court’s decision.
Definitional note: “Affirmative action” is generally used to refer to selection processes that actively create an advantage for applicants who belong to groups seen as underrepresented and therefore desirable by the decision-makers. This is known to occur in admissions, hiring, and promotion.
One this point, the US Supreme Court overruled the California Supreme Court, which had ordered UC-Davis to completely stop using race as a factor in admissions decisions.
Bakke went into practice as an anesthesiologist and led a private life, avoiding interviews or further controversy. In another tragic “where are they now” note, one of the students admitted in Bakke’s place in 1973, Patrick Chavis, became a public icon for the success of affirmative action in 1995; two years later, he became a public icon for the failures of affirmative action when his medical license was revoked for gross incompetence and insensitivity to patient pain, leading to the death of one patient and near-death experiences for others.
There are additional details, but it basically boils down to the fact that the holistic admissions process was opaque and included admissions decisions that were likely due to the personal whims of individual admissions officers.
On the same day, the Supreme Court also issued an opinion banning a points-based affirmative action system in Gratz v. Bollinger, affirming the other side of the de facto standard.
Sonia Sotomayor, the third-oldest justice, openly credits affirmative action for her admission to Princeton in 1972 and Yale Law School in 1976, citing low scores on standardized tests. Clarence Thomas, the oldest justice, contends he did not benefit from Yale Law School’s affirmative action program when admitted in 1971.
Average maternal age has increased from 24 to 27 in the relevant demographic period. Mothers tend to be younger than fathers, but add in early mortality for older grandparents and it pretty much balances out.
Both sides accuse the other of failing to respect stare decisis on this basis.
She quoted some of the more flowery language from Justice Marshall’s opinion in Bakke, but avoided any reference to the majority opinion and any substantive citations of Grutter. While the phrases “narrowly tailored” and “strict scrutiny” come up frequently in the three other opinions, they are absent in Jackson’s dissent.
The UC system uses facially race-neutral methods to determine whether or not most in-state undergraduate students are admitted to the system due to the requirements of California’s master plan for education.
Berkley and UCLA flagship schools use holistic admissions to put a racial thumb on the scale in determining which students are admitted to their specific campuses. Graduate-level admissions are more or less unconstrained and can be made similarly holistic or may include more creative scoring systems, such as a numeric “disadvantage score” compiled by an applications officer. These various workarounds via obscurity are likely to be revisited in lawsuits following SFFA v. Harvard.
The main techniques that the UC system has come up with for tweaking the demographics of the undergraduate students admitted to the system as a whole are (A) eliminating test scores and (B) adding “eligibility in the local context,” taking the top students from underperforming majority-minority schools. Essentially, local eligibility means the UC system admits the 9% of students with the best grades and the 9% of students with the highest class rank instead of the 12.5% best students by a composite of grades + test scores. This system is unlikely to be successfully challenged in court.