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The Supreme Court case that could end affirmative action, explained

A case challenging Harvard’s admissions policy gives a 6-3 conservative Supreme Court the vehicle it needs to end race-conscious admissions.

Harvard Students Go Home
Pedestrians are reflected in a window of a store selling Harvard paraphernalia in Cambridge, MA on March 11, 2020.
Photo by Jessica Rinaldi/The Boston Globe via Getty Images
Ian Millhiser is a senior correspondent at Vox, where he focuses on the Supreme Court, the Constitution, and the decline of liberal democracy in the United States. He received a JD from Duke University and is the author of two books on the Supreme Court.

Last week, a conservative group led by a prominent skeptic of laws seeking to cure racial injustice formally asked the Supreme Court to hear a challenge to Harvard’s race-conscious admissions policy for undergraduates.

The plaintiff in Students for Fair Admissions v. President & Fellows of Harvard College presents its lawsuit as a bid to vindicate the rights of Asian American applicants to Harvard — though Harvard rejects the overwhelming majority of undergraduate applicants, the rejection rate among Asian Americans is especially high. But the implications of this suit go far beyond Harvard or the lawsuit’s implications for people of Asian descent.

The Harvard case is the first major affirmative action suit to reach the Supreme Court since Republicans gained a 6-3 majority on that Court, and it’s the first such case to reach the justices since Anthony Kennedy’s retirement in 2018. Kennedy had unexpectedly cast the key vote to uphold an affirmative action program in Fisher v. University of Texas at Austin (2016).

Kennedy is gone now, as is Justice Ruth Bader Ginsburg, and the Court’s new majority can potentially use the Harvard case to end all race-conscious admissions programs altogether.

No one questions that race plays some role in Harvard’s admissions decisions. While Harvard only accepts a tiny fraction of its applicants — in 2019, it received 35,000 applications for about 1,600 slots in its freshman class — an extraordinary Black or Latino student is more likely to be accepted than an equally extraordinary white or Asian student.

But the case presents fundamental questions about what it means to live in a pluralistic society, and what role elite institutions should play in fostering such a society. Admission to Harvard is often a ticket to the highest echelons of an undergraduate’s chosen field. And a federal court found that forbidding Harvard from considering race in its admissions program could “reduce African American representation at Harvard from 14% to 6% and Hispanic representation from 14% to 9%.”

Without affirmative action, future generations of presidents, judges, CEOs, and scholars would likely be less Black and less Latino.

The men and women who do graduate from elite schools, moreover, would likely emerge more sheltered and less able to succeed in a diverse society, if affirmative action is struck down. As the Supreme Court explained in Grutter v. Bollinger (2003), “numerous studies show that student body diversity promotes learning outcomes, and ‘better prepares students for an increasingly diverse workforce and society, and better prepares them as professionals.’” A Harvard graduate is more likely to succeed in their chosen profession if they learned to interact with and appreciate people of diverse backgrounds while they were still in college.

The case against affirmative action is fairly straightforward. In the Supreme Court’s own words, racial classifications are “not consistent with respect based on the unique personality each of us possesses.” They necessarily cause individuals to be given or denied opportunities based on a trait that they cannot control, and that does not reflect their worthiness of something as precious as a seat in Harvard’s freshman class.

But the insight of cases like Grutter is that society as a whole benefits from greater diversity in elite institutions. The fundamental question in Harvard, in other words, is whether society’s collective interest in having a leadership class that respects and draws from all parts of the nation justifies giving a slight advantage to individual college applicants from certain racial backgrounds.

In the likely event that the Supreme Court agrees to hear this case (four justices must agree to place the case on the Court’s argument calendar), Harvard’s admissions program could well have a rough ride ahead.

The Supreme Court has surprised experts who predicted doom for affirmative action in the past — it did so most recently in the Fisher case. But the Court is also more conservative now than it’s been at any point since the 1930s. And the most moderate member of the Court’s conservative majority, Chief Justice John Roberts, is an outspoken opponent of race-conscious policies.

How affirmative action in university admissions works

For nearly half a century, the Supreme Court has placed tight limits on universities that wish to consider race when admitting students, and cases like Grutter and Fisher made those limits even tighter. Universities may not use quotas that set aside a certain number of seats for applicants of color, and they may not use formulas that grant a mathematical advantage to every applicant from a certain racial background.

In practice, affirmative action often functions as a tiebreaker when a university is trying to decide among multiple applicants, each of whom is likely to succeed at that institution.

At any selective university there will be three kinds of applicants. The first consists of applicants who are so exceptional that they are all-but-certain to be admitted regardless of the nuances of the university’s admissions policy. The second consists of applicants who are so far below the university’s ordinary standards that they have little, if any, chance of being admitted.

Harvard has long denied that race plays much of a role in deciding the fates of these first two groups of applicants. But Harvard filed a brief in Regents of the University of California v. Bakke (1978), the first affirmative action in university admissions case to reach the Supreme Court, explaining that race does play a role in deciding whom to admit from a third group of applicants.

This third group, which Harvard described as “the large middle group of applicants who are ‘admissible’ and deemed capable of doing good work in their courses,” consists of applicants who are likely to thrive at an institution like Harvard but aren’t so exceptional as to be virtually guaranteed admission.

Universities unavoidably need to make choices among this third category of applicants that have nothing to do with a particular applicant’s worthiness to attend a particular school. Suppose, for example, that the tuba player in Harvard’s orchestra is graduating this spring. If two equally qualified applicants apply to Harvard’s incoming class, one of whom plays the tuba and the other plays the clarinet, Harvard might choose to admit only the tuba player because that applicant fills a particular need for the school.

That doesn’t mean that tuba players are inherently more valuable than other musicians, or that they are more deserving of admission to Harvard.

The theory underlying decisions like Grutter is that the racial demographics of a university class is much like an orchestra. Just as an orchestra made up of a diversity of instruments will produce richer, more nuanced symphonies than a band consisting entirely of woodwinds, a student body made up of students from diverse racial, economic, geographic, and other backgrounds will receive a superior education to students who spend their university years surrounded by people just like themselves.

As Grutter explained, “major American businesses have made clear that the skills needed in today’s increasingly global marketplace can only be developed through exposure to widely diverse people, cultures, ideas, and viewpoints.”

This vision of affirmative action as a tool to foster diversity that benefits white and nonwhite students alike emerged from the Supreme Court’s 1978 decision in Bakke.

Bakke involved a medical school that set aside 16 seats in its 100-person class for racial minorities. This, according to Justice Lewis Powell’s controlling opinion, was not allowed. Under this system, “white applicants could compete only for 84 seats in the entering class, rather than the 100 open to minority applicants,” and Bakke held that every applicant must be able to compete for every seat, regardless of their race.

Yet, while Bakke rejected quotas or other mathematical formulas that set applicants of color apart from white applicants, it also held that “race or ethnic background may be deemed a ‘plus’ in a particular applicant’s file.” As Powell wrote, “the file of a particular black applicant may be examined for his potential contribution to diversity without the factor of race being decisive when compared, for example, with that of an applicant identified as an Italian-American if the latter is thought to exhibit qualities more likely to promote beneficial educational pluralism.”

Indeed, Powell specifically praised Harvard’s then-existing admissions policy in his Bakke opinion. As Harvard described that policy at the time, “the Committee has not set target-quotas for the number of blacks, or of musicians, football players, physicists or Californians to be admitted in a given year,” but it does pay “some attention” to whether a particular applicant is likely to make the student body more diverse.

“A farm boy from Idaho can bring something to Harvard College that a Bostonian cannot offer,” Harvard explained in an amicus brief that was also joined by three other elite universities. “Similarly, a black student can usually bring something that a white person cannot offer.” And so, in deciding whom to admit from among the “large middle group of applicants,” Harvard gave a preference to applicants who would bring greater diversity to their student body.

It’s worth noting that past cases such as Bakke, Grutter, and Fisher all involved public universities, which are prohibited by the Constitution from engaging in certain forms of race discriminations. Harvard is a private institution and is thus unbound by the Constitution, but the Supreme Court has said that a federal civil rights law — Title VI of the Civil Rights Act of 1964 — imposes the same restrictions on private universities that the Constitution imposes on public institutions. So a decision to strike down Harvard’s affirmative action policy would have implications for all university admissions policies.

How Harvard’s admissions policy works now

The admissions policy at issue in the Harvard case resembles the policy that Powell praised in its broadest strokes. Harvard still views race as a “plus” factor that can benefit certain applicants, while shying away from mathematical formulas or quotas. But its admissions policy has been revised somewhat since the 1970s, in part to ensure that it complies with decisions like Grutter and Fisher.

As a federal appeals court explained in an opinion upholding Harvard’s admissions program, Harvard employs 40 admissions officers who read the tens of thousands of applications submitted by students hoping to join the school’s undergraduate class. (For the class of 2024, there were 40,248 applicants and 2,015 admissions.) At the first stage of the admissions process, each application is read by at least one admissions officer, who rates the students along six dimensions: “academic ratings, extracurricular ratings, athletic ratings, school support ratings, personal ratings, and overall ratings.”

For the first five of these categories, race plays no direct role in determining an applicant’s rating — although it can play an indirect role in determining a student’s “personal rating” if, for example, a student of color tells a particularly compelling story about how they overcame racism to succeed academically. Race can play a role in a student’s overall rating, however, through a process Harvard refers to as “tips.”

As the appeals court described this process, “tips are plus factors that might tip an applicant into Harvard’s admitted class.” A student who would otherwise be rejected might be “tipped” into the pool of accepted applicants for myriad reasons, including “outstanding and unusual intellectual ability, unusually appealing personal qualities, outstanding capacity for leadership, creative ability, athletic ability, legacy status, and geographic, ethnic, or economic factors.”

Data suggests that a sizable percentage of Harvard’s Black and Latino undergraduates received an offer of admission because of this “tips” system. According to the Harvard plaintiff, if you group all Harvard undergraduate applicants into deciles based on their academic record, Harvard still rejects more than 85 percent of applicants in the top decile. But it accepts more than half of Black applicants in this elite decile and just under a third of the highest-performing Hispanic applicants.

Yet, according to the appeals court, Harvard’s admissions policy is consistent with decisions like Bakke and Grutter. Among other things, the Court explained, “Harvard’s admissions process is so competitive that race is not decisive for highly qualified candidates,” and its process “does not weigh race so heavily that it becomes mechanical and decisive in practice.”

The overwhelming majority of applicants to Harvard are rejected, regardless of their race. In Harvard’s system, race is one of many factors that can help the university choose among a pool of applicants that it’s already determined to be among the best students in the country.

The case against affirmative action

Though the Harvard plaintiff makes some arguments that Harvard’s system is inconsistent with Grutter, their primary argument is that Grutter is “grievously wrongand should be overruled.

Indeed, the Harvard plaintiff opens its petition asking the Supreme Court to hear this case with a quote from Chief Justice Roberts: “It is a sordid business, this divvying us up by race.” The Harvard plaintiffs would have the Court implement a view that Roberts has long advocated — that any consideration of race is odious, regardless of what a particular race-conscious policy seeks to accomplish.

Roberts articulated his approach to race very early in his tenure as chief justice, in his plurality opinion in Parents Involved in Community Schools v. Seattle School District No. 1 (2007). Parents Involved concerned two school districts’ attempt to desegregate their schools by giving small preferences to some students on the basis of race.

Instead of assigning all students to the public school closest to their home, for example, a Seattle school district allowed students to rank which schools they would prefer to attend. If too many students chose a particular school, students who would increase the racial diversity of that school were given a slight preference.

Roberts deemed this effort to foster diversity within public schools as akin to Jim Crow. “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race,” he proclaimed at the end of his opinion, after arguing that racial classifications are inherently poisonous, regardless of their intent:

If the need for the racial classifications embraced by the school districts is unclear, even on the districts’ own terms, the costs are undeniable. “[D]istinctions between citizens solely because of their ancestry are by their very nature odious to a free people whose institutions are founded upon the doctrine of equality.” Government action dividing us by race is inherently suspect because such classifications promote “notions of racial inferiority and lead to a politics of racial hostility,” “reinforce the belief, held by too many for too much of our history, that individuals should be judged by the color of their skin,” and “endorse race-based reasoning and the conception of a Nation divided into racial blocs, thus contributing to an escalation of racial hostility and conflict.” As the Court explained in Rice v. Cayetano, “[o]ne of the principal reasons race is treated as a forbidden classification is that it demeans the dignity and worth of a person to be judged by ancestry instead of by his or her own merit and essential qualities.”

If you read this paragraph, it’s not hard to see how Roberts may be sympathetic to the plaintiffs in Harvard. The premise of cases like Grutter is that the benefits of diversity within elite universities justify a departure from the ordinary rule against racial classifications. But the premise of Roberts’s opinion in Parents Involved is that such classifications are so inherently toxic that the benefits of race-conscious policies can never exceed the risks.

For the past 43 years, the Supreme Court has policed the bounds of university admissions, believing that those universities could help build a more diverse leadership class without opening up the Pandora’s box that Roberts is so afraid of. But when Roberts wrote his opinion in Parents Involved, the Supreme Court was still closely divided on questions of race. As it considers the Harvard case, it now has a 6-3 conservative majority.

The Supreme Court has surprised us before in its affirmative action decisions, and it may well do so again. But given what we know of Roberts’s views and the new majority he has to work with, affirmative action’s days in university admissions may be numbered.

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