On Monday, the United States Supreme Court heard five hours of oral arguments on two cases that could decide whether affirmative action to achieve racial diversity in college admissions is legal.
The lawsuits now before the court were filed in 2014 by a group called Students for Fair Admissions. One lawsuit contends that Harvard College violates Title VI of the Civil Rights Act, which prohibits federal funding of entities that discriminate based on race, because Asian American applicants are less likely to be accepted to the university than similarly qualified applicants of other races. The other lawsuit challenges the University of North Carolina over its policy of considering race in admissions, asserting that the policy is not needed to achieve the goal of a diverse student body and therefore violates the Equal Protection Clause of the 14th Amendment.
Federal appeals courts in Boston and North Carolina sided with the schools and upheld the policies. The Supreme Court accepted the cases for review.
The conflicts in the law on the issue of racial preferences stem from the troubling history of racial discrimination that was legally enforced in the United States even after the 1868 ratification of the Fourteenth Amendment. With the landmark decision in Brown v. Board of Education in 1954, which held that racial segregation in public schools was “inherently unequal” and unconstitutional, decades of Supreme Court decisions interpreting the Fourteenth Amendment to permit racial discrimination were thrown out. A new body of law developed to establish that depending on the circumstances, racial discrimination would be prohibited, allowed or made mandatory.
The constitutionality of affirmative action for remedial purposes was established in the court’s 1978 decision in Regents of the University of California v. Bakke. In that case, the Supreme Court held that the use of racial “quotas” in admissions was unconstitutional, but a school could use “affirmative action” to increase minority admissions in some circumstances.
Nineteen years ago, Justice Sandra Day O’Connor wrote the majority opinion in another affirmative action case, Grutter v. Bollinger, holding that the University of Michigan Law School could consider race in its admissions decisions to achieve the goal of “diversity” in its student body. However, O’Connor made clear that this was temporary. In 25 years, she suggested, “the use of racial preferences will no longer be necessary to further the interest approved today.”
The Supreme Court is now considering whether that time has arrived. During Monday’s arguments, Justice Clarence Thomas, who dissented in the Grutter case, questioned whether the term “diversity” has any clear definition and what specific academic benefits stem from it. Justice Samuel Alito asked how a court can determine when the benefits of diversity have been achieved. Chief Justice John Roberts pointed to O’Connor’s majority opinion in Grutter. “She said race-conscious admissions programs must be limited in time. That was a requirement,” he told Solicitor General Elizabeth Prelogar, who was arguing in favor of the programs on behalf of the Biden administration.
The idea that “diversity” is a legally enforceable standard that justifies discriminating against some groups in favor of others has always been on shaky ground. For decades it has been used as a workaround to evade the modern meaning of the Constitution’s Equal Protection Clause. Today, Asian Americans are asking the Supreme Court why they should be denied admission to universities because of their race.
There’s no good answer to that question.