Affirmative Action Dodged a Bullet, But the Supreme Court is Still Loaded.

Background:

Leading up to the culmination of SCOTUS’s current term, Chief Justice John Roberts issued several rulings that seemed to indicate a sense of moderation to the court’s conservative reign. By aligning with the liberal consensus on issues surrounding voting rights, election law, and President Biden’s immigration policy, Roberts attempted to solidify his reputation as a pragmatic institutionalist and chip away at criticism concerning the high court’s politicization and ethics; except these seemingly ‘liberal’ decisions weren’t in fact liberal at all, but mere rejections of radical conservative theories. All these decisions did was continue to establish precedent and mask the court’s coming rulings with a translucent facade.

The clouds broke on June 29, 2023, when Roberts delivered a ruling on Students for Fair Admissions vs. Harvard College that intended to gut affirmative action from the college admissions process. The decision’s justification is rooted in the belief that race-based admission policies favoring Black and Latino applicants violate the equal protection clause of the Fourteenth Amendment due to their intrinsic discrimination against other races. Roberts did stop short of overturning the precedent set by Grutter v. Bollinger in 2003 that upheld the legality of considering race as a factor in the admissions process. Nonetheless, the 6-3 majority opinion was divided cleanly along ideological lines.

The ruling’s critics range from Supreme Court justices Sotomayor and Jackson to President Biden, left-leaning media personalities, the colleges themselves, and the general public alike. Although Biden refused to directly scrutinize the ruling for fear of undermining the court’s authority, he did declare the court ‘not normal’ in a recent interview, and pronounced that ‘we can not let the decision change what America stands for.’ The widespread notion is that racial diversity at many campuses across the nation will diminish as a result of the ruling and that the college admissions process will be profoundly altered. This perceived regression has caused paranoia and outrage, but I contend that the ruling’s implications are less significant for the college admissions process than in symbolizing SCOTUS’s current reign of imperial power. While aiming to kill, the majority opinion has instead mistakenly introduced a superior, more holistic rendition of affirmative action.

Opinion:

There is a famous Mark Twain quote: “Reports of my death are greatly exaggerated.” If affirmative action could speak, it would echo Twain's sentiment. Affirmative action is not dead and for more than one reason. However, the most concrete evidence pointing to the continued permissibility of racial consideration in college admissions can be found in the plain text of the opinion itself. Armed with an annotated paper copy of the court’s opinion from a practicing partner at a top-ranked global law firm, I present my legal interpretation of the affirmative action ruling:

Legal Analysis:

The ruling was reached based on a close inspection of Harvard and UNC admissions processes in comparison to race-based admissions precedents set by past rulings. The outlined issues with these systems that led Chief Justice Roberts to his opinion are explicit to Harvard and UNC, rendering the ruling quite narrow in scope.

The lack of measurable benefits of these affirmative action systems was one of the primary concerns. In Fisher v. University of Texas -- Austin (2016), the court ruled that “race-based admissions programs must be sufficiently measurable to permit judicial review.” Through the court’s evaluation based on data provided by the defendants, Harvard and UNC’s race-based admissions were deemed non-compliant with this ruling, with Roberts stating that “the question whether a particular mix of minority students produces ‘engaged and productive citizens,’ sufficiently ‘enhances appreciation, respect, and empathy,’ or effectively ‘trains future leaders’ is standardless. The interests that the respondents (Harvard and UNC) seek, though plainly worthy, are inescapably imponderable.” While acknowledging plausible intent, the court ruled that the benefits of Harvard and UNC’s programs are unquantifiable, and therefore, in violation of existing precedent. The opinion further stated that their “programs fail to articulate a meaningful connection between the means they employ and the goals they pursue.” This rationale theoretically leaves open the possibility that in a future case the “measurable benefits” could be shown.

The court also had issues with Harvard and UNC’s ‘check-the-box’ approach in utilizing race as a factor for admission. In Regents of the University of California v. Bakke (1978), the court ruled that while it’s invalid to use race as a standalone factor in admissions, it can still operate as a ‘plus factor,’ and could be considered. This was essentially the start of the affirmative action experiment, which from the beginning prohibited quota-based versions of affirmative action, back in 1978. Referencing a ‘Harvard Admits by Race’ data table detailing the percentages of incoming classes from 2009-2018 by racial group, the court found that the percentages of the incoming class for each group stayed consistent every year: African-Americans made up about 11% every year, Hispanics 10%, and Asian-Americans 19%. They concluded that this uniformity resulted from a racial quota system, which was deemed in violation of the Bakke ruling.

Revisiting the validity question of Harvard and UNC’s affirmative action systems, the court also had issues with the categories in which applicants were placed, further exacerbating their position on the systems’ immeasurability. According to Justice Roberts, the respondents were “seemingly uninterested” in the benefits of having specific ethnic groups due to arbitrarily defined and overbroad categories, which served the sole purpose of filling quotas. By failing to make distinctions between say East and South Asians, or Mexicans and Latin Americans, the goal of creating a campus filled with diverse opinions and experiences was undermined. This realization contributed to his stance on the impermissibility of these specific systems.

All of the aforementioned discrepancies play into Justice Roberts’s overarching ruling, and after 38 pages of explanation, he delivered the sauce on page 39: “Both programs lack sufficiently focused and measurable objectives warranting the use of race (Fisher v. UT), unavoidably employ race in a negative manner, involve racial stereotyping (overbroad categories), and lack meaningful endpoints (Grutter v Bollinger, 2003). We have never permitted admissions programs to work in that way, and we will not do so today.” For these utterly specific reasons which concern only the admissions processes employed by Harvard and UNC, the existing affirmative action programs at Harvard and UNC are dead.

The ruling clearly does not end racial consideration in college admissions generally. Cranking up the heat even further on page 39, in the following paragraph Chief Justice Roberts purposefully leaves the door open to continuously allow racial consideration in admissions by declaring that “nothing in this opinion should be construed as prohibiting universities from considering an applicant’s discussion of how race affected his or her life, be it through discrimination, inspiration or otherwise.”

One last time -- Harvard’s existing affirmative action program is over and so is UNC’s, but by purposefully not overturning precedents set by Bakke, Bollinger, or UT upholding affirmative action, only Harvard and UNC’s quota-based systems are immediately impacted. The opinion is intentionally narrow and permits the continuing usage of race as it pertains to an applicant's experiences in admissions, but has gutted the quota system approach employed by the defendants in alignment with the Bakke ruling from 1978.

Effects & Implications Analysis:

If the court’s words aren’t sufficiently convincing that racial consideration in college admissions is still alive, the colleges themselves will tell you how they’ll continue building diverse classes. As a rising senior in high school, I’ve received versions of the same email from countless universities all stating that their value of promoting diversity on their campuses remains unaltered by the affirmative action ruling; and that makes complete sense. Universities have general jurisdiction over their admission processes and will legally circumvent this attempt at undermining their institutional values with ease. Four of the sitting nine Supreme Court justices attended Harvard Law School themselves, so maintaining diversity while following the law will be a cakewalk for Harvard College, and all other universities just need to follow suit. In all seriousness, diversity will remain a staple of the admissions process for years to come, and its means of consideration may just be improved to favor those who truly need it by this ruling…

To be clear, this conservative court did not intend to make affirmative action ‘better’ through this ruling. Yet despite their attempt to create a ‘colorblind’ admissions process, as Justice Thomas called it in his concurring opinion, it may just have the opposite effect. In an optimistic view that I hold with distinguished UCLA law Professor Richard Sander, the court’s ruling may just initiate the start of ‘genuine affirmative action.’ Here’s how:

Through the now-banned quota system, universities created ‘faux-diversity’ by separating applicants into race-based pools and then admitting a certain percentage of each pool. This process greatly advantaged minority applicants from privileged backgrounds since many in this category have similar resources as wealthy applicants from ‘non-disadvantaged’ groups but were competing against a larger proportion of disadvantaged students from their own pool. This system, which fails to support disadvantaged minorities while benefiting privileged minorities, is what the court has declared unconstitutional. Their proposed solution is for colleges to evaluate applicants based on their individual hardships and experiences; did they grow up in a poor or working-class environment, attend a school without college prep assistance, or suffer due to cultural barriers like language during their schooling? None of these questions, the important ones, can be answered by checking a box. Colleges have already discussed implementing a new supplemental essay to their applications that asks applicants something along the lines of how their identity has impacted their life experiences, and how that’s shaped them into who they are today. By providing this opportunity for disadvantaged applicants to talk about their race, ethnicity, and/or culture through the context of their life experiences, they have the chance to be evaluated by much more than the color of their skin. This system would also level the playing field for underprivileged applicants who aren’t Native American, Black, or Hispanic, and are typically grouped into the racial categories stereotyped as ‘overachieving’ or ‘privileged.’ Furthermore, because essays (and potentially activities) are the only way in which admissions officers can scan for diversity in an application, this heavily weighted category may just gain a few more pounds; yet another unintentional benefit created by the court.

To compensate for this imbalance, the weight of quantitative aspects of the application may be decreased even further. It’s been proven time and time again that standardized test scores are a direct reflection of socioeconomic status and good grades can often be attributed to stable home life and supportive resources. Armed with this understanding, admissions offices may choose to place even less importance on these aspects of the application in favor of delegating more significance to the experiences discussed in the essays portion.

In summary, the Supreme Court’s ruling has unintentionally caused an improved, more qualitative version of affirmative action; and it’s here to stay. Not only is this genuine affirmative action in compliance with the court’s ruling and all existing precedents, the only losers are those who were provided with an unfair advantage by the quota-system approach. Applicants from the ‘privileged’ groups without major hardships to discuss in regards to their identities’ merely won’t discuss identity-related hardships, just as they didn’t before. Applicants from disadvantaged groups will be provided with an even greater opportunity to leverage their identity as a factor for admission that includes their race and experiences. Even the greatest losers from the quota-based system, applicants from ‘privileged’ groups with identity-related struggles, will now receive appropriate evaluations based on the context of their situations, regardless of race. Only privileged minorities, who didn’t need the benefits of affirmative action as much as their less fortunate counterparts, should detest, but still accept, the ruling.

For all other groups, the conservative court has launched ‘genuine affirmative action,’ albeit, by mistake. The quota system that was killed by Bakke in 1978 has merely been put back into its grave today in 2023. So much for Justice Thomas’s colorblind admissions process; applicants will now be judged based on their true colors, rather than just what shows on the surface of their skin.

But as Justice Sonia Sotomayor dissented, the Supreme Court did attempt to “turn its back on 45 years of jurisprudence aimed at promoting more inclusive and equal schools: This court stands in the way and rolls back decades of precedent and momentous progress.” Despite its likely beneficial impacts, I agree with Sotomayor that this was an attempted killshot by the court. By default the court is the conservative branch of government, but how is it that they manage to (usually) successfully stand in the way of progress so often? In a matter of two days at the end of their 2022-2023 term, the court ruled against Biden’s student loan bailout, in favor of a graphic designer's right to refuse to create wedding websites for same-sex couples, and attempted to strike down affirmative action from higher education. Oh, and don’t forget the death of Roe v. Wade in June 2022, a moral and political victory for the right that produced nothing but practical complications for women seeking an abortion in America. This court hindered societal progression like no other, but this raises the question of when and how the court rose to this level of imperial power, to begin with. How and when was the imperial court as we know it today born?

Ironically, I point to the most liberal court in our nation’s history, the Warren Court, as the birthplace of imperial power the modern court so frequently abuses for the exact opposite purpose. Nicknamed the “Active Agent of Social Change,” the Warren Court played a chief role in realizing the goals of many of the Great Society’s social movements in the 1960s. This included civil rights, women’s health, lgbtq+ rights, and many others, but the power shift really began with the Brown v. Board of Education ruling in 1954, when we went to the Supreme Court to end segregation. Since then, we’ve abandoned the legislative process and instead deferred to the Supreme Court to solve our most contentious societal issues, which rules for both sides depending on the partisan balance of justices on the bench at any given time. That's counter-productive.

This brings up an important sub-point that even if voters dislike the presidential candidates, it’s integral that they vote in alignment with their party anyway since the president appoints supreme court justices in correspondence with their political affiliation. Trump’s presidency and appointment of three Supreme Court justices are the reason progressives are suffering the effects of one of the most conservative courts in our nation’s history, yet another reason why election outcomes have implications well beyond who sits in the Oval Office. Besides the president, the replacement of any government official should not be able to shift the course and destiny of our nation, yet in this day and age, with the Supreme Court’s imperial power, this is the danger we must consider when deciding whether or not to vote in general elections.

Back to the main point -- The court was originally empowered by the left to codify the goals of liberal social movements in the 1960s, but that same power has been carried over to all of the supreme courts and still many rulings are made outside of the legislative process. Due to its imperial power and increasingly broad interpretation of judicial review, the court now creates constitutional rights out of thin air. Judicial review was created for the court to rule on the constitutionality of existing laws, not to enable their creation of brand new ones, yet since the 1960s, this has been a common function of the Supreme Court. Using judicial review, new policies are imposed simply by redefining them as a ‘constitutional right,’ completely circumventing the legislative process.

Even though the Warren Court was an objective savior for our country due to the rights it secured for misrepresented groups, there is a very intentional reason for Congress’s existence: Both chambers are elected directly by the people through popular vote and therefore, they serve as the only direct voice of the people in the United States government. By granting the Supreme Court the chief policy-activist role, the reigns of our country are put in the hands of nine, deeply partisan figures. Allowing the Supreme Court to make legislative decisions is inherently anti-democratic in two ways: This goes against the separation of powers outlined in the Constitution and excludes the everyday people from our government by allowing the voice of nine, who have no fundamental advantage over any regular citizen in terms of rights and privileges, to take precedence over 330 million others who also call America their home.

This is the true danger of allowing the Supreme Court to exercise such boundless power, regardless of the party whose views it advocates. If, and BIG emphasis on IF, I was a racist fundamentalist during the 1960s, I’d probably feel the same as I do now about the Warren Court’s handing out of rights to perceived ‘lesser’ groups. Today there’s an additional layer of concern because not only does the voice of the nine justices trump all others in our country, but some of those nine voices -- Yes, I’m looking at YOU Justice Thomas -- are deeply influenced by the voices of our nation’s ultra-rich. Taking another stroll back through history, today’s court of unreported gifts and close ties with billionaire donors is eerily reminiscent of the “Billion Dollar Congress” from the Gilded Age, which was known for its corruption and willingness to allow the rich to buy their laws to fruition. With this in mind, it seems even more *convenient* that the court didn’t take any time to review legacy admissions while they tried reducing the scope of affirmative action…

That was a lot. The two main takeaways from the affirmative action ruling are as follows: Quota-based systems, which were deemed unconstitutional by Bakke v. Regents of the University of California in 1978 have once again been declared unconstitutional. Though unintentional, the removal of quota-based affirmative action will mark the beginning of ‘genuine affirmative action,’ where applicants currently receiving unfair advantages will no longer endure such unauthorized privileges and those truly in need will receive the evaluations they deserve. This dodged bullet symbolizes the danger of the Supreme Court’s imperial power. Taking the voice away from the people and replacing it with those of nine -- all partisan and some corrupt -- justices is severely anti-democratic. Affirmative action lives to see another day, but it’s only a matter of time before the Supreme Court lands its next kill shot.