Bloomberg Law
Free Newsletter Sign Up
Bloomberg Law
Advanced Search Go
Free Newsletter Sign Up

Killing Affirmative Action Is the Easy Part

Nov. 2, 2022, 3:32 PM

After the demise of Roe v. Wade, I can’t get all worked up about the two major affirmative action cases—one involving Harvard College, the other University of North Carolina—that were argued before the US Supreme Court on Monday. Compared to eviscerating a woman’s right to abortion, eliminating race as a consideration for college admissions might seem like small fry.

The conservative justices questioned the value of diversity on campuses and, arguably, American society writ large. They seemed eager to kill affirmative action, but don’t appear to consider any next-generation solutions to the ongoing problem of racial inequality in higher education.

We know the drill. Now liberated from the quaint idea that precedent should be respected, the Supreme Court will take a sledgehammer to affirmative action. The question is whether anything viable will be left in the debris, and what comes next.

If recent past is prologue, expect obliteration. With conservatives outnumbering liberals on the court six to three, there’s little reason to expect a different outcome. With the possible exception of Amy Coney Barrett (and maybe Brett Kavanaugh and Neil Gorsuch) who, at least, asked more thoughtful questions, the conservatives barely bothered to hide their contempt for the whole concept of affirmative action.

Most contemptuous of all was Clarence Thomas. After being famously silent during oral arguments for most of his 30 years on the high court, Thomas has become quite loquacious.

“I’ve heard the word ‘diversity’ quite a few times, and I don’t have a clue what it means,” he lectured Ryan Park, the lawyer for UNC. “It seems to mean everything for everyone.” Parents, he quipped, don’t expect their kids “to have fun or feel good” in college but to “learn physics or chemistry.” And to show his total disdain for diversity, Thomas added, “I guess I don’t put much stock in that because I’ve heard similar arguments in favor of segregation too.”

Segregationists and diversity advocates are in cahoots? Huh?

Debating Brown’s Legacy

As flippant and mind-boggling as Thomas’s statements are, he wasn’t the only justice to question policies and laws that aim to improve inequalities.

The conservative justices seem to embrace the argument put forward by Students for Fair Admissions, the group challenging Harvard and UNC, that Brown v. Board of Education prohibits consideration of race in admissions.

Though that seminal 1954 decision aimed to correct educational inequities faced by Black children, some of the justices are suggesting that Brown also prohibits any policy that gives disadvantaged minorities a leg up.

In fact, Chief Justice John Roberts practically went ballistic at the suggestion that race might be used as a tiebreaker in admissions. When Harvard’s lawyer Seth Waxman mentioned that an applicant’s race might be considered to bring more diversity to a class, just as an oboe player might be if there’s a need on the Harvard orchestra, Roberts barked, “We did not fight a civil war about oboe players!”

“Students for Fair Admissions argued that it’s no longer 1870, but we all know slavery didn’t end in 1865,” Robert Cottrol, a professor at George Washington Law School, told me in an interview after the arguments. “Brown said no more racial discrimination. Now this court says you can’t have measure to address discrimination.”

Where Will It End?

Also weird is the conservative majority’s focus on an end date for diversity policies, as if they feared affirmative action would be a bottomless pit. “I don’t see how you can say that the program will ever end,” Roberts fretted.

“What is your goal? And how do you know it’s been reached?” Samuel Alito asked.

In the background was Justice Sandra Day O’Connor’s 2003 majority opinion in Grutter v. Bollinger, where the first female justice predicted (or hoped) that affirmative action would no longer be necessary in 25 years.

Barrett called O’Connor’s prediction a “self-destruct mechanism” that expires in 2028. Though Barrett noted that achieving diversity in universities has been “difficult,” she also pressed UNC’s lawyer for a timeline, asking, “Would you defend this indefinitely?”

“Justice O’Connor’s majority opinion was concerned about indefinite extension,” Kavanaugh added. “How will we know when the time has come?”

It’s hard to make sense of what the justices were trying to convey. Were they suggesting that O’Connor’s prophecy has come true and that corrective measures are unnecessary? Or that we gave affirmative action a shot and it’s now time to pull the plug, even though the results have been disappointing?

The conservative wing threw out various reasons why diversity is a sham—Kavanaugh lamented that religion wasn’t considered for diversity and Gorsuch painted Harvard as a rich kids haven. The three liberal justices—Elena Kagan, Sonia Sotomayor, and Ketanji Brown Jackson, who recused herself from the Harvard case—tried valiantly to bring historical context and reality into the discussion.

Jackson posed a sharp question: Why is it permissible for a White applicant to boast to the admissions committee that she’d be a fifth-generation member to attend UNC while a Black applicant can’t mention he’s a descendant of slaves?

That would result in “a dramatically different opportunity to tell their family stories and to have them count,” she added. And while “pluses” can be allotted to applicants who are parents, veterans, and disabled, race is prohibited from consideration. “Isn’t that creating more equal protection problems?” Jackson asked.

‘Very Tough to Draw’ Line

Listening to the exchange between the liberal and conservative justices, it’s hard to believe the court will find a middle ground. So will the conservatives slash and burn affirmative action the way they did abortion rights?

“I think Amy Coney Barrett opened the door a crack when she asked Patrick Strawbridge [lawyer for SFFA] whether race could be part of the personal essay, and whether colleges could take that into account,” said Cottrol of GW. “She was making a subtle distinction that you won’t get an automatic check because of race but that you can write about it. She raised an issue that went beyond a simple yes or no answer.”

Less sanguine about the prospect of maintaining affirmative action is Thomas Lee, a professor at Fordham Law School and former clerk for Justice David Souter: “I think the Supreme Court will overrule Grutter and hold that racial diversity is not a compelling interest to justify an admissions regime to a highly selective university that uses race as a significant positive factor, even in a ‘holistic’ process.”

But Lee added, “The line between impermissible race-based and permissible race-conscious processes will be very tough to draw.”

The conservative justices will likely overturn affirmative action. But if they think this will make race considerations disappear from universities or anywhere else, they’re dreaming.

To contact the reporter on this story: Vivia Chen in New York at