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Harvard Admissions Case Tests O’Connor’s 2003 Call on Race Bias

Aug. 11, 2021, 8:45 AM

Former Supreme Court Justice Sandra Day O’Connor’s majority opinion preserving affirmative action in a 2003 case included some declarative wording that justices tend to avoid—and that the justice came to regret using.

“The Court expects that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today,” O’Connor wrote in Grutter v. Bollinger, a case involving the University of Michigan.

Eighteen years later, what the retired justice meant to convey in that statement could help form arguments at the Supreme Court if its conservative majority takes up a challenge to Harvard College’s race-conscious admissions system.

O’Connor subsequently walked back the line, and most constitutional law scholars consider it unduly optimistic rhetoric about the nation’s future rather than binding legal precedent. But they also say it could give the justices an opening to rule against Harvard and further pare back how schools can use race as a factor in admissions, or avoid ruling on affirmative action cases by seeing 2028 as a deadline.

Most law scholars “do expect it to have some influence or make an appearance in the Harvard case because we are getting so close to that 25 years,” said Devon Westhill, president and general counsel for the Center for Equal Opportunity.

Change of Mind

O’Connor has voiced regrets about her wording in Grutter as early as five years after the ruling, citing continued racial inequities and limited progress toward narrowing educational opportunity gaps.

“In today’s America, I’m inclined to think that race still matters in painful ways,” she said in a 2008 keynote address at Harvard Law School.

Evan Thomas, O’Connor’s biographer, wrote in the Atlantic that the justice told a close friend after her retirement that there was “no timetable” for predicting when affirmative action would no longer be necessary. “You just don’t know.”

Nearly two decades since Grutter, proponents and observers of race-conscious admissions say alternatives to race-neutral means of achieving student diversity, such as test-optional admissions, have had limited success. They also cite persistent lags in K-12 education investment and systemic inequality that’s been upheld rather than dismantled by government and legislative action.

“When I read the opinion back in 2003, I remember thinking that this was more optimistic than was deserved,” said Tillman Breckenridge, an appellate lawyer. “Those impediments are still here and they will probably be here for a very long time.”

A Consistent Presence

Still, justices have referenced O’Connor’s language in ways that suggest they see it as a deadline— or at least a reason to put off taking up affirmative action cases before 2028.

They’ve had two opportunities to do so—both the 2013 and 2016 iterations of the Fisher v. University of Texas case. Both centered on Abigail Fisher, a White woman who alleged that her rejection from UT Austin was due to racial preferences for minority students.

“I want to know whether you are asking us to overrule Grutter,” Justice Stephen Breyer questioned Bert Rein, who represented Fisher in the 2013 case. “Grutter said it would be good law for at least 25 years, and I know that time flies, but I think only nine of those years have passed.”

Chief Justice John Roberts asked Gregory Garre, who was defending UT Austin, a more speculative question during Fisher II oral arguments. “It was important in Grutter to say, look, this can’t go on forever, 25 years,” he said. “And when do you think your program will be done?”

Both lower courts that have heard the Harvard case so far have made reference to O’Connor’s 25 years language, although neither concluded it was an impediment to upholding the college’s admissions system.

Judge Allison Burroughs for the U.S. District of Massachusetts wrote in her 2019 opinion in favor of Harvard that the 25 years “might be optimistic and may need to change” amid remaining entrenched racism.

Judge Sandra Lynch of the U.S. Court of Appeals for the First Circuit wrote of the plaintiffs’ argument that Harvard had failed to identify a stopping point for its use of race, which she attributed in part, to the 25 year reference, that it was “not persuasive.” Lynch also noted the Supreme Court didn’t address O’Connor’s 25 year timeline in its Fisher opinions.

The state of Texas cited the 25 year timeline in its amicus brief asking the Supreme Court to take up the Harvard case, arguing that “anyone who assumed that Grutter would operate indefinitely did so at his own peril.”

Potential Pathway

Vikram Amar, dean of the University of Illinois College of Law, says the high court has set up paths to overrule its past rulings before, including in the Janus v. AFSCME case involving labor unions requiring non-members to pay dues.

“Justice Alito’s majority opinion talked a lot about how in the years leading up to Janus, the court had been sending signals that this case from the 1970s should no longer be relied upon and was based on a weak foundation,” Amar said.

“So there are instances where the court tries to provide a path for changing its past rulings, but nothing as explicit as the Grutter decision.”

An argument for ruling against Harvard and further paring back how schools use affirmative action is that “the passage of time gives people more and more ammunition to say, ‘we’ve got to move on because we’re moving further away from the era of explicit exclusion of people of color,” Amar said.

Melissa Murray, a New York University constitutional law professor, said it’s not a Supreme Court justice’s role to put a time limit on public policy.

“It’s been suggested that there was a temporal limit put on affirmative action without actually interrogating what would be necessary to have that kind of racial progress in that period of time,” she said.

Speculated motives

O’Connor’s motivations for inserting the language are still up for debate among legal scholars and practitioners.

O’Connor announced in 2018 that she was “no longer able to participate in public life” due to dementia. Her former clerks from the time of the Grutter decision declined or didn’t respond to multiple requests for comment.

Some believe O’Connor was following precedent for narrowly tailored affirmative action programs, which “had to have a stopping point,” said Evan Caminker, a law professor at the University of Michigan Law School.

“It had been 25 years since Regents of the University of California v. Bakke, so I don’t think there was anything legal or empirical about that stopping point other than her announcing that hopefully we’re halfway there,” Caminker said.

The Asian American plaintiffs alleging anti-Asian discrimination in the Harvard admissions case stand out from the White plaintiffs of past race-conscious admissions lawsuits.

Attorneys for Students for Fair Admissions say their suit targets the college’s alleged anti-Asian bias in admissions, not affirmative action. However, their appeal to the Supreme Court questions Harvard’s “racial balancing, overemphasizing of race, and rejecting workable race-neutral alternatives.”

Some view the line as O’Connor’s attempt to phase out affirmative action over time, which would be an uncommon move for a court. Doing so would mimic a traditional practice of legislative bodies.

“Congress is a more forward-looking institution—they can say we’re going to put in place a tax break program and phase it out over 10 years,” said Amar, who’s written about O’Connor’s Grutter language. “The court’s job is to say what the law is at a given moment, not what it’s going to be.”

To that end, some scholars have interpreted the line as a call to action for Congress, state legislatures, and other public institutions to address higher education access barriers, invest in public education, and chip away at other racial disparities in society.

“I do think she was trying to subtlety pressure government actors to get their act together and try to solve the problem in some alternative ways, as many people opposed affirmative action as the right solution,” Caminker said.

The last two decades’ limited progress in these areas may be a lesson for justices to avoid such temporal rhetoric.

“Be careful of opening Pandora’s box,” Westhill said.

To contact the reporter on this story: Tiana Headley at theadley@bloombergindustry.com

To contact the editors responsible for this story: Bernie Kohn at bkohn@bloomberglaw.com; Seth Stern at sstern@bloomberglaw.com