WASHINGTON – Following the cancellation of the last term of Roe v. Wade and the expansion of gun rights, Supreme Court conservatives are poised to sharply limit or nullify affirmative action at colleges and universities.
This is a fundamental question about the role of race and the meaning of equality before the law.
On Monday, the court will hear challenges to “race-conscious” admissions policies at Harvard, the nation’s oldest private college, and the University of North Carolina at Chapel Hill, the oldest state university.
And the outcome could affect not only higher education, but also potentially the workplace.
For more than 40 years, the court has ruled that universities have a “compelling interest” in creating a diverse student body, which justifies giving limited preference to well-qualified applicants who are black, Latino or Native American.
Civil rights advocates argue that this affirmative action is at best a modest step towards equality and redressing past injustices in a nation with a history of slavery, segregation and racism.
School officials say they use race as a deciding factor when choosing among qualified applicants, allowing them to create a more diverse student body, which benefits everyone.
But conservatives on the court, including Chief Justice John G. Roberts Jr., have argued in recent years that to comply with the Constitution and civil rights laws of the 1960s, admissions policies should be “colorblind” and “race-neutral”.
They quote the words of Judge John Marshall Harlan, the sole dissenter of the infamous 1896 decision in Plessy v. Ferguson who confirmed segregation.
“Our Constitution is color blind and does not recognize or tolerate class among citizens,” Harlan wrote. “In matters of civil rights, all citizens are equal before the law. »
The Conservatives also cite Brown v. Board of Education which relied on Harlan’s reasoning to overturn segregation in 1954. They argue that the time has come for government-funded universities to stop using applicants’ race as an admissions factor in any way whatever, even if the goal is to help underrepresented groups.
“The way to end discrimination on the basis of race is to stop discriminating on the basis of race,” Roberts wrote in a 2007 ruling that ended a diversity policy at Seattle high schools.
The affirmative action debate comes as the High Court has, for the first time, two black judges. They have already given contrary opinions.
Judge Clarence Thomas has been a vocal critic of affirmative action.
“The Constitution abhors classifications based on race because any time the government places citizens on racial registries and makes race relevant to the provision of offices or benefits, it demeans us all,” he said. wrote in dissent in a University of Texas case.
He derided the “fashionable theory that racial discrimination can produce educational advantages.”
Judge Ketanji Brown Jackson, on her second day in court, challenged the view that the Constitution requires “racially neutral” laws. She said the Post-Civil War Reconstruction Congress passed the 14th and 15th Amendments to authorize civil rights laws that operate “in a race-conscious manner.”
The purpose of these amendments, Jackson said, was “to ensure that people who had been discriminated against — freedmen during Reconstruction — were equal to all other members of society … to be equal to white citizens.” It “is not a neutral or race-blind idea,” she said.
Jackson will likely take an active role in Monday’s closing arguments, at least for the first hour. She recused herself from the Harvard case because she had served on the university’s board of supervisors, but she will help decide the UNC case.
Civil rights leaders said they fear the court will close the door on the next generation of students of color.
Maya Wiley, president of the Leadership Conference on Civil Rights, said the court cases “go straight to what it means to be a multiracial democracy.” She said most Americans think diverse college experiences are better.
“It’s important that we don’t let things go backwards,” said Damon T. Hewitt, chairman of the Lawyers Committee for Civil Rights Under Law. Black student life “is defined by race. Their world is not racially neutral,” he added.
Both universities were sued by Students For Fair Admissions, a group started by retired stockbroker Edward Blum. He has filed a series of lawsuits challenging the use of race in shaping electoral districts and in college admissions.
The group says its mission is “to restore the original principles of our nation’s civil rights movement: a student’s race and ethnicity should not be factors that hinder or help that student gain admission to a competitive university.
The SFFA says it has 20,000 members, many of whom said they had been turned down for admission to the two universities. The judges said the group had standing to sue because its members had an interest in the outcome.
A ruling against universities and their use of race would not prevent them from giving preference to students who had encountered difficulties, especially coming from a low-income family or neighborhood.
The two sides were split on whether focusing on “socio-economic” status could create diversity on campus without relying on race.
The lawsuit against Harvard said it should spend more time and money recruiting and admitting talented students from low-income families, including blacks and Latinos, and give less preference to children of Harvard alumni and donors, who tend to be white and well-to-do.
Harvard and UNC dismissed this idea as impractical. Both schools said they encourage black and Latino students to apply and offer generous financial aid, but said their data shows more preferences based on “socio-economic” status would lead to lower numbers. of black students as well as a decline in average test scores. .
Lawyers for both schools told the court they had “no viable, racially neutral alternative” to achieving diversity on campus without considering race as an admissions factor.
Harvard pointed out that it selects an incoming class of 1,600 per year from 35,000 highly qualified applicants.
In their lawsuit, the challengers alleged that Harvard systematically discriminates against Asian Americans, who tend to score high on academic measures but low on the school’s “personal grade,” which takes into account factors such as “leadership, integrity, self-confidence and sympathy”.
“Year after year, Harvard personal ratings reflect a clear racial hierarchy,” they told the court, “where African Americans receive the highest personal ratings, followed by Hispanics, followed by Whites, with Native Americans Asian in last place.” They compared Harvard’s current use of these “subjective” factors to its use of “character” and “fitness” measures to limit the number of Jewish students a century ago.
In response, Harvard said these personal grades are a “minor” factor and denied that it discriminates on the basis of race, although Asian American applicants with the highest grades and test scores are far less likely to be admitted than black, Latino, and white students with the same or lesser academic qualifications.
Boston-based judges who upheld Harvard’s admissions policy noted that the percentage of Asian American students had risen steadily, from 3.4% in 1980 to 20.6% in 2019. They said warned that “eliminating race as an admissions factor would reduce African American representation from 14% to 6% and Hispanic representation from 14% to 9%.”
UNC has a similar admissions policy that aims to overcome a history of racial exclusion. It did not admit its first black students until 1955, a year after the Supreme Court struck down state-imposed segregation. And even with its affirmative action policy, black students remain underrepresented at Chapel Hill.
About 8% of UNC students are black in a state with a black population of 21%.
Opinion polls show that most Americans support racial diversity in colleges, but oppose the use of race as an admissions factor. In a Pew college poll released in April, most Americans said admissions should be based on a student’s high school grades and test scores, while 74 percent said “race or ethnicity ethnic” should not be a factor.
Respondents differed based on their own race and ethnicity, however, with 79% of whites, 68% of Latinos, 63% of Asians and 59% of blacks saying they were opposed to the use of race or ethnicity in admissions.
In 1996, California voters passed an election measure that prohibits the University of California and other public schools from discriminating or giving preferential treatment on the basis of race, sex, color, ethnicity or national origin.
Since then, eight states have adopted similar policies, including Michigan, Washington, Florida and Arizona.
A ruling against Harvard could extend such a ban to private universities that receive federal funds, including Stanford and USC.
This aspect of the cases could prove significant far beyond higher education. In the late 1970s, the liberal majority on the court ruled that the Civil Rights Act of 1964 did not prevent universities or employers from using affirmative action that gave preference to underrepresented racial groups. In both cases, the court said the purpose of this landmark law was to overcome past discrimination.
However, the very words of the law prohibit discrimination on the “basis of race”. If the conservative court rules that civil rights law prohibits universities from using race in admissions, legal experts predict it would open the door to further legal challenges to affirmative action in the workplace.
A decision on these cases is expected early next year.