Chemerinsky: Stakes are high as Supreme Court considers affirmative action cases
Erwin Chemerinsky. Photo by Jim Block.
The future of affirmative action in the United States rests on two cases heard by the U.S Supreme Court Monday: Students for Fair Admissions v. University of North Carolina and Students for Fair Admission v. Harvard College. Both liberals and conservatives expect the court to overrule precedent and end affirmative action by colleges and universities. This will have a dramatic effect on both public and private schools, and how the court does this could have enormous implications for many areas of law.
The Supreme Court first ruled on the constitutionality of affirmative action in 1978, in Regents of the University of California v. Bakke. The court considered the admissions program of the University of California at Davis Medical School, which set aside 16 slots for minority students in its entering class of 100. The justices were deeply divided, and there was no majority opinion. Four justices used intermediate scrutiny—the requirement that the government action be substantially related to an important government purpose—and voted to uphold the program. Four justices said it violated Title VI of the 1964 Civil Rights Act, which prohibits recipients of federal funds from discriminating based on race. Justice Lewis Powell, writing for himself, said strict scrutiny should be used for racial classifications benefiting minorities, that universities have a compelling interest in having a diverse student body and may use race as one factor among many in admissions decisions, but quotas and set-asides are impermissible.
The court returned to the issue of affirmative action in higher education 25 years later in a pair of cases involving the University of Michigan. In Grutter v. Bollinger, the court, 5-4, upheld a University of Michigan Law School affirmative action program. Justice Sandra Day O’Connor wrote for the majority and explained the vital importance of a diverse student body for the education of all students, and reaffirmed the constitutionality of colleges and universities using race as one factor in their admissions decisions. In Gratz v. Bollinger, the court declared unconstitutional a University of Michigan undergraduate admissions program that assigned points to various aspects of an application, with additional points added for those who were underrepresented minorities.
In Fisher v. University of Texas at Austin, in 2013, the court reaffirmed that universities have a compelling interest in having a diverse student body but said to engage in affirmative action, they must show that there is no race neutral way to achieve diversity. The case came back to the Supreme Court, which in 2016 upheld a University of Texas affirmative action program for its undergraduate admissions.
Thus, the law is clear: Colleges and universities have a compelling interest in having a diverse student body, they may use race as one factor in admissions to benefit minorities and enhance diversity, but they may not have a quota or a set-aside or add additional points to applications from minority races.
The cases now before the court
Both cases were brought by the same plaintiff, Students for Fair Admissions. The suit against the University of North Carolina contends that the school’s affirmative action program violates equal protection. A federal district court held an eight-day trial and then ruled in favor of the University of North Carolina, concluding that, in accordance with Supreme Court precedent, it used race as one factor among many in admissions and that it did not have another way to achieve diversity. The Supreme Court granted review before the case could be heard and decided by the U.S. Court of Appeals for the Fourth Circuit.
The suit against Harvard College claims that it violates Title VI of the 1964 Civil Rights Act, which prohibits racial discrimination by recipients of federal funds. The equal protection clause and the Constitution do not apply to Harvard because it is a private institution. The plaintiffs contend that Harvard discriminates against Asian students in its admissions policies. A federal district court judge held a 15-day trial and ruled in favor of Harvard. The court concluded that Harvard did not intentionally discriminate against Asian Americans, and that it used race as a factor in admissions because it necessary to have diversity in its student body. The U.S. Court of Appeals for the First Circuit affirmed and found that the Harvard program did not violate Title VI.
Although the two cases involve different claims, one constitutional and the other statutory, the Supreme Court previously had said that the legal standard is the same under Title VI and under equal protection. Assuming the court adheres to this view, and there is no reason to believe it won’t, then the court will be deciding about the future of affirmative action in both public and private universities.
What the court might do
Of course, it is possible that the court could affirm the lower courts, follow its precedents and uphold the affirmative action programs. But few think that is a realistic possibility. Fisher, in 2016, was a 4-3 decision to uphold the University of Texas affirmative action program. Only seven justices participated because that was the term Justice Antonin Scalia died and Justice Elena Kagan was recused because of her involvement in the case when she was solicitor general of the United States. Two of the four justices in the majority—Anthony Kennedy and Ruth Bader Ginsburg—are no longer on the court. But all three dissenters—John Roberts, Clarence Thomas and Samuel Alito—remain. They have been joined by three conservative justices: Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett. It is impossible to imagine a majority will uphold these precedents.
The court could reverse the lower courts on the narrow ground that Harvard and the University of North Carolina failed to prove affirmative action was necessary to achieve a diverse student body. This would not overrule precedents and still allow affirmative action, tightening the standard for what schools would need to prove to use race as a factor in admissions. But this would be difficult in these cases because the federal district courts held trials and found the schools demonstrated that they had no other way to achieve diverse student bodies.
The most likely outcome seems to be that the court will overrule its earlier decisions and hold that it violates equal protection and Title VI universities to use race as a factor in admissions. This will have an immediate impact on schools across the country. In its brief to the Supreme court, Harvard says 40% of all U.S. universities—and 60% of selective universities—consider race in some form during their admissions processes.
A few states, such as California, Michigan and Washington, have eliminated affirmative action by voter initiative. In California, Proposition 209, enacted in 1996, prohibits governments in the state from discriminating or giving preference based on race or sex in education, contracting or employment. The dramatic effects of this initiative show the likely immediate impact of eliminating affirmative action. At UCLA, the number of African American freshmen fell by nearly half—from 264 in 1995 to 144 in 1998, the first year Proposition 209 took effect. And over the same time period at Berkeley, the number of African American freshmen declined from 215 to 126. It was not until 2015, almost 20 years after its enactment, that the number of African Americans at UCLA reached what it had been before the enactment of Proposition 209.
If the court overrules the earlier decisions, it also will be important as to how the court does this. One possibility would be to hold that diversity in education is not a compelling interest sufficient to justify affirmative action. A broader alternative would be for the court to hold that the equal protection clause requires the government be colorblind in its decisions. This would have broader implications. For example, it could put in jeopardy laws that create liability based on proof of a racially disparate impact because it is argued that they require race to be considered to avoid violations.
A central aspect of the conservative judicial agenda was to overrule Roe v. Wade. Another is to overrule the decisions that allow affirmative action. The two cases argued Monday give the court the opportunity to do just that.
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Erwin Chemerinsky is dean of the University of California at Berkeley School of Law and author of the newly published book Worse Than Nothing: The Dangerous Fallacy of Originalism. He is an expert in constitutional law, federal practice, civil rights and civil liberties, and appellate litigation. He’s also the author of The Case Against the Supreme Court; The Religion Clauses: The Case for Separating Church and State, written with Howard Gillman; and Presumed Guilty: How the Supreme Court Empowered the Police and Subverted Civil Rights.
This column reflects the opinions of the author and not necessarily the views of the ABA Journal—or the American Bar Association.