Supreme Court affirmative action cases could have far-reaching effects outside of education

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(WRVO) – The United States Supreme Court heard oral arguments Monday, October 31 for two affirmative action cases: Students for Fair Admissions, Inc. v. University of North Carolina and Students for Fair Admissions Inc. v. President & Fellows of Harvard College.

Michael Dorf, a constitutional law professor at Cornell University, said in the UNC case the court is debating challenges on both the Equal Protection clause of the 14th Amendment and Title VI of the 1964 Civil Rights Act. The Harvard case only includes the Title VI claim since Harvard is a private institution and not bound by the Constitution.

“In both cases, the basic question is whether college admissions will still be conducted in accordance with the rule that was set down in 1978 in a case called Bakke that allows colleges to consider race as one factor among many in building a diverse student body,” Dorf said.

Dorf said both institutions are arguing that they are following what the Supreme Court has previously allowed using race only as a plus factor and to construct a diverse class. He said Students for Fair Admissions argue that neither institution is really committed to diversity, rather that they are trying to simply build up their minority student population.

“In the Harvard case, they allege that Harvard is not only advantaging African American, Latinx and Native American applicants, but is actively disadvantaging Asian and Asian American applicants,” Dorf said.

Although the U.S. Supreme Court is considering the affirmative action cases in an educational context, Dorf said there will be far-reaching effects if the court were to overrule affirmative action.

Interview highlights

On what affirmative action is and the precedent of it in the U.S. Supreme Court.

So affirmative action is a term that has come to mean the consideration of one’s race or national origin, sometimes sex, although not very much anymore as a so-called plus factor in admissions. So selective colleges and universities have more applicants than they have space for and they need to make selections. In the very early days, when they noticed that they had a disproportionately small number of applicants of color, they sometimes would simply set a minimum floor or a quota. The Supreme Court struck that down in 1978, but allowed that some use of race as a so-called plus factor is permissible, because colleges and universities have an interest in having people from a diverse set of backgrounds reflecting various different viewpoints and in our society, being of a different race, contributes to one’s likelihood of holding various different viewpoints based on different experiences.

Interestingly, that is not the primary reason many people support affirmative action. Many people conventionally support affirmative action, especially for African American applicants, as a kind of reparation or remedy for centuries of first enslavement than segregation, Jim Crow, and ongoing discrimination. But, the Supreme Court pretty much ruled that out as a basis for race-based affirmative action beginning in 1978, except in the rare case where the college or university itself had been recently adjudicated as having violated the anti-discrimination norms of the Constitution or federal law. So for the ensuing nearly five decades, colleges and universities have justified their affirmative action programs by reference to diversity, not as a kind of remedy for past and ongoing discrimination in other areas of society.

On the Supreme Court justices questions during oral arguments

As you would expect, given the priors of these justices, they had different perspectives. The most conservative justice on the court, Clarence Thomas, was highly skeptical of diversity. He seemed to suggest that he doesn’t even understand what anybody means by diversity and that it’s simply a smokescreen for impermissible racial balancing and racial quotas. That was at one end. At the other end, Justice Sonia Sotomayor and Justice Ketanji Brown Jackson in the UNC case, because she’s recused in the Harvard case, but Justices Sotomayor and Jackson were strongly arguing that what these schools were doing is not only permissible, but necessary to counteract the discriminatory effect of all sorts of practices in society, and indeed at the very colleges.

In between, I think, was Chief Justice John Roberts, who seemed not very interested in completely overruling the existing precedents, but did seem sympathetic to the plaintiffs argument that Harvard and the University of North Carolina had not taken sufficient means short of the use of race to enable them to use race. That he had in mind a kind of requirement that they exhaust, try all race-neutral alternatives before using race expressly. I think there was some indication that maybe Justices Brett Kavanaugh and Amy Coney Barrett were sympathetic to the chief justice’s position.

After listening to 5 1/2 somewhat hours of oral argument it did seem like it’s very likely that both Harvard and UNC will lose. The only question is how far-reaching an opinion will the court write? Will this be like the Dobbs opinion last June, where the court simply overruled Roe v. Wade in the abortion context? Will the court just get rid of affirmative action or will they chip away at it?

On how other colleges and universities would be affected if the court overrules affirmative action

I think there is some precedent for what will happen. The University of California system, University of Michigan system and some other states have been under legal obligations that forbid affirmative action for a number of years. What you’ve seen in those states and some others is some effort to ensure diversity through other means. For example, in Texas, there is a guarantee of admission to the state university for people who graduate in the top percentage of their high school class and that works to some extent, although it works primarily because high schools are segregated by race. In other places, there’s an effort to focus more on socioeconomic diversity, which is different from racial diversity, although there’s some correlation. There was a suggestion during the oral argument that colleges and universities could still consider racial-disadvantage, which is not the same thing as race ao that if the applicant who happened to be African American wrote in their application essay about all the ways that they had faced and overcome race-discrimination, so long as the college would also give some benefit to a student writing about overcoming a different kind of a disadvantage that would be permissible.

I think you’ll see a number of efforts to maintain a diverse student body in private and public colleges in New York state, but I also think based on the experience in California, Michigan and elsewhere, the representation will diminish. Interestingly, during the oral argument, though, the lawyers challenging the admissions programs seem to acknowledge that it would be legal to take account of race in these other indirect ways so long as race wasn’t expressly considered. I could imagine the court trying to cut some of those options off in its opinion, but that would be very hard to police. I think what we are likely to see is that whatever the court writes, colleges and universities who have good lawyers, will try to work within the literal bounds of the law, nonetheless, to maintain as much racial diversity as possible given the new constraints.

On other implications the affirmative action case could have

The court is considering the case in an educational context, but there is affirmative action with respect to contracting, with respect to private employment. All of that is governed by other provisions of the Civil Rights Act. The court is very likely to interpret Title VI in a way that has implications for Title VII, for example, which concerns employment. Whatever the court does here, could affect things like minority business enterprises and all sorts of other contexts.

On what this case says about future decisions of the court

I think we are likely to see and we are already seeing the Supreme Court’s conservative supermajority shift the center of gravity pretty far to the right. Chief Justice Roberts, who is an institutionalist, and I think has a tendency to want to go more slowly, is the most liberal of the conservative justices. He’s outnumbered by five justices to his right. When I say he’s the most liberal, he’s not at all liberal, but he is a moderate, and so he has sort of lost control of this court. So the Court’s going to go pretty much as far to the right and as fast as it can to the right as the next most moderate of the conservative justices allow. That basically means, Brett Kavanaugh and Amy Coney Barrett.

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