Race-conscious university admissions hang by a legal thread

Oral questions posed this week by Republican-appointed justices of the Supreme Court of the United States suggest that five of the nine members of the bench are ready to overturn a decades-long precedent that will consign race-conscious university admissions to history.

The cases, one against Harvard University and one against the University of North Carolina at Chapel Hill (UNC), were brought in 2014 by a conservative organisation called Students for Fair Admissions.

It claimed that by taking the race of under-represented minorities into account in admissions, the universities discriminated against white and Asian Americans and thus contravened the “equal protection of the laws” clause in the 14th Amendment to the United States Constitution and Title VI of the Civil Rights Act of 1964.

“There are lots of tools being used by schools for outreach, appearing and being more welcoming and accessible, greater transparency regarding costs and financial aid, etc.

“But a really important tool continues to be letting the folks who evaluate applications take into consideration an applicant’s race or ethnicity, and inviting applicants to reveal their full selves in their applications,” says Peter McDonough, vice-president and general counsel of the American Council on Education, which filed an amicus curiae (friend of the court) brief in these cases.

Civil Rights Act of 1964

Although the Supreme Court ruled that primary and secondary schools must be desegregated in the famous 1954 ruling in the case of Brown v Board of Education of Topeka, Kansas, the US government’s main effort to improve under-represented minorities’ enrolment in colleges and universities dates to the Civil Rights Act of 1964, which authorised affirmative action programmes.

These were soon attacked as quotas, a position the Supreme Court took in 1978 in the case of Regents of the University of California v Bakke. The court struck down the medical school’s admissions, which set aside 16 (out of 100) seats for minority applicants. The court did, however, allow that colleges and universities could take race into account, though without such set-asides.

In the 2003 case of Gratz v Bollinger, the Supreme Court ruled that one of the ways colleges and universities had devised to take race into account – giving 20 points on the 150-point admissions scale to under-represented minorities – was unconstitutional.

In his majority decision on that case, Chief Justice William Rehnquist said that by awarding these points solely on the basis of race, black and other under-represented minority applicants were placed ahead of white applicants, essentially forming a quota system through the back door.

The system made “race a decisive factor for virtually every minimally qualified under-represented minority”, he wrote.

Also in 2003, in the case of Grutter v Bollinger, the Supreme Court ruled in favour of the University of Michigan Law School’s admissions process that used race in order to ensure a “critical mass” of under-represented minorities that, the university argued, “ensure that these minority students do not feel isolated or like spokespersons for their race; to provide adequate opportunities for the type of interaction upon which the educational benefits of diversity depend; and to challenge all students to think critically and re-examine stereotypes”.

Time limits

Writing for the majority in that case, however, Justice Sandra Day O’Connor stated an important caveat that several of the justices brought up during the oral arguments. Race-conscious admissions policies must be time limited, she argued.

“The court takes the law school at its word that it would like nothing better than to find a race-neutral admissions formula and will terminate its use of racial preferences as soon as practicable. 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.

During this week’s hearings, while there were some questions about whether O’Connor was using 25 years as a figure of speech or an aspirational goal, the issue at stake was how the colleges and universities would know when they would be able to stop taking account of race.

One of the lawyers who appeared to explain an amicus curiae brief in favour of the universities told the court that that point will be reached when “expert evidence pretty definitely shows that we are able to meet what we feel is an inclusive, diverse environment through minimal consideration of race. And I think that we will get there based on this qualitative process. But there is no strict numerical badge.”

He then referred to the University of Michigan system and the University of California, both of which are enjoined by their state constitutions from using race-based data in admissions, and told the court that they have major struggles, particularly concerning enrolling a sufficient number of African American students to reach their educational goals.

He further stated that the University of California, which has seen the number of African Americans drop since the state voted to ban race as a factor in admission, is experiencing “an inverse relationship between African American students and their sense of belonging and their sense of tokenism and isolation with how selective the university is”.

“And so, I think that’s why you’re seeing this wide spectrum of progress towards the day that we all are looking for – where you no longer have to consider race,” he told the court.

Justice Amy Coney Barrett stated plainly: “Grutter says this is dangerous and it has to have an end point” since classifying people by race is “risky and potentially poisonous”.

Solicitor General Elizabeth Prelogar’s admission that at some point racial classification would end gave Chief Justice John Roberts the opportunity to press Prelogar to name the year and say “Grutter gave us a number”.

When Prelogar demurred, he asked again: “Do you want to give a number [year]?”, before adding: “I don’t see how you can say that the programme will ever end.”

“Your position is that race matters because it’s necessary for diversity, which is necessary for the sort of education you want,” Roberts said. “It’s not going to stop mattering at some particular point; you’re always going to have to look at race because you say race matters to give us the necessary diversity.”

Justice Brett Kavanaugh picked up on Roberts’ attack. “If you don’t have a number, and I understand why it’s difficult … but if you don’t have something measurable, it’s going to be very hard for this court [to sustain the programmes],” he said.

The value of diversity

Justice Clarence Thomas, who had dissented against Justice O’Connor’s decision in Grutter, was predictably sceptical about the link between education and diversity. “I’ve heard the word diversity quite a few times, and I don’t have a clue what it means. It seems to mean everything for everyone.”

The lawyer representing UNC responded: “First, and I think most pertinent to the question that you asked, is the actual truth-seeking function of learning in a diverse environment. I would direct the court to the major American businesses brief, which discusses a whole extensive, rigorous, peer reviewed literature that diverse groups of people actually perform at a higher level.

“So, the most concrete possible scenario is stock trading. And there are studies that find that racially diverse groups of people making trading decisions perform at a higher level [and] make more efficient trading decisions, and the mechanism there is that it reduces groupthink, and people have longer and more sustained disagreement, and that leads to a more efficient outcome.”

Thomas responded: “Well, I guess I don’t put much stock in that because I’ve heard similar arguments in favour of segregation too.”

Justice Samuel Alito asked a number of questions about discrimination against Asian students. Harvard’s application process, he noted, awarded them lower “personal scores”.

“The record shows that Asian student applicants get the lowest scores of any other group. What accounts for that? It has to be one of two things: that they really do lack integrity, courage, kindness and empathy to the same degree as other races. Or there has to be something wrong with this personal score.”

Decline in minority admissions

The questions asked by the three justices appointed by Democrats indicated that they sided with Harvard and UNC. Justice Sonia Sotomayor noted that since some colleges and universities require personal essays, it is impossible to write one without indicating your race and culture.

In its amicus curiae submission, the American Council on Education noted that three-quarters of black adults reported that their racial identity is extremely (52%) or very (22%) important to how they think about themselves, making them “more likely than any other racial group to see their race or ethnicity as ‘central to their identity’”. (By contrast the figures for whites was 5% or 10%.)

Justice Elena Kagan addressed the decline in black and under-represented minorities in universities and colleges that are banned from taking race into account in admissions decisions.

“But in your view,” she asked the lawyer representing Students for Fair Admissions, “it really wouldn’t matter if there is a precipitous decline in minority admissions, African American, Hispanic, one or the other … if it just fell through the floor. Would it be just, you know, too bad?”

Justice Ketanji Brown Jackson, the court’s newest justice, pushed Sotomayor’s inquiry further. In a tweet about her questions, Harvard Law Professor Laurence Tribe, one of the nation’s foremost constitutional lawyers, wrote: “Justice Ketanji Jackson’s two hypothetical applicants, both seeking to honour their family legacy as fifth-generation North Carolinians, but one descending from slaves and the other from slaveowners, were an eye-opener for the ages.”

Jackson also asked a question that must have seemed either cheeky or cutting to the conservative members of the court who, like Thomas and Alito, count themselves as “originalists”, in other words, the Constitution means what it meant at the time it was written. Her question dealt with the 14th Amendment, which was adopted in 1868.

According to Jackson, at the time, there were federal and state laws that took race into account in order “to achieve the central premise of the 14th Amendment: to bring African Americans [most of whom were the slaves freed three years earlier at the end of the Civil War] to a point of equality in our society. And I think what’s so notable, if the court is focused on history here, is that the petitioner [Students for Fair Admissions] has come forward with essentially no history to support this colour-blind interpretation of the Constitution that would make all racial classifications automatically unconstitutional. There’s nothing in history to support that.”

According to McDonough, lurking behind the discussion of the 14th Amendment was an important First Amendment issue, which guarantees free speech.

“Interpretations of the equal protection clause that would chill an applicant’s expression [in, for example, an essay about him or herself] or penalise applicants based on the content of their applications are at odds with fundamental First Amendment rights. Fifty years ago, the Supreme Court said: ‘Above all else, the First Amendment means that the government has no power to restrict expression because of its message, its ideas, its subject matter, or its content’.”

Military colleges

One of the strongest defences of these race-conscious admissions policies concerned the nation’s military colleges, including West Point.

Prelogar argued that it was vital to national defence that their admissions process construct their freshman classes so that the military’s officer cadre looks like America. A vital part of the nation’s military being accepted by the nation, she told the court, was that the public see in the military a reflection of the nation.

Prelogar rejected the premise behind the question of whether the court’s exemption of service academies from a decision that would overturn the precedents allowing race-conscious admissions policies was sufficient protection for the service academies. The reason, she told the court, was because the military draws thousands of officer cadets from the Reserve Officers’ Training Corps (ROTC) run at thousands of colleges and universities.

“It is critically important to the military to achieve diverse student bodies in the service academies. But it’s also critically important [to have diverse student bodies in colleges and universities] because, actually, more officers come from ROTC programmes.”

It is important, she underlined, “to protect and preserve a space for universities to also achieve the educational benefits of diversity and provide a path to leadership that [is] inherent [in] those programmes as well”.

Prelogar ended her testimony by pointing out that she was the only female attorney among the 27 that would be heard by the Supreme Court on its fall calendar.

“Even today, though women are 50% or more of law school graduates,” the federal government’s attorney said, “I think it would be reasonable for women to look at that and wonder: Is that a path that’s open to me, to be a Supreme Court advocate? Are private clients willing to hire a woman to argue their Supreme Court cases, when there is that kind of gross disparity and representation? It can matter.”