The highest-profile case on this term’s Supreme Court docket is undoubtedly the challenge to the use of racial preferences in university admissions, in which the court heard five hours of argument last week. Given that the court last term overturned Roe v. Wade and recognized the “abandonment” of Lemon v. Kurtzman — which set a mushy test for finding an unconstitutional establishment of religion — is Regents of the University of California v. Bakke the next 1970s precedent on the chopping block?
Bakke is the 1978 case in which one justice, Lewis Powell, planted the seed for the entire diversity conceit that now seems to be a bigger priority in higher education than the pursuit for truth, civil discourse and the transmission of knowledge. Four justices would have allowed race-based admissions decisions to remedy past prejudice, while four others would have outlawed its consideration altogether. Powell, meanwhile, voted to invalidate the racial quotas at UC-Davis’ medical school, but to allow the use of race as one of many factors to advance what he considered to be a compelling governmental interest in educational diversity.
A quarter-century later, the court by a 5-4 majority endorsed that diversity rationale as part of a holistic race-conscious admissions program (Grutter v. Bollinger, regarding the University of Michigan Law School) while rejecting a mechanical system that assigned race a fixed number of points (Gratz v. Bollinger, regarding Michigan’s undergraduate college). The swing vote in those cases, Justice Sandra Day O’Connor, suggested that “25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.”
Well, here we are two decades later, and the trend lines aren’t looking good for an organic sunsetting of the evaluation of higher education applicants by the color of their skin. But in two cases brought by a civil rights organization called Students for Fair Admissions, the Supreme Court has a chance to end that practice.
The group sued the oldest private and public universities in the country, Harvard and the University of North Carolina, respectively, presenting compelling evidence that these schools use racial preferences to a far greater extent than Bakke and Grutter would allow. For example, at any given level of academic merit, the acceptance rate for African American applicants is many times greater than for whites and especially Asian Americans. Put another way, as Harvard’s lawyer Seth Waxman — who was solicitor general in the Clinton administration — conceded, 45% of Blacks and Hispanics got into Harvard due to racial preferences.
At the same time, the litigation has shown that the number of Asian Americans at Harvard (and other elite schools) has stayed relatively constant even as their proportion of qualified applicants has exploded in recent decades. That’s sadly ironic, because Powell had credited Harvard as a model admissions program without recognizing that its “holistic” approach originated as a way to restrict the number of Jewish students.
Perhaps that’s why a majority of justices were skeptical of the arguments for maintaining racial preferences, or “race-conscious admissions” as the schools’ advocates call them. And that majority includes the otherwise mercurial Chief Justice John Roberts, who has been firmly opposed to government-sponsored racial spoils in a variety of contexts — including the most recent collegiate affirmative action case, Fisher v. UT-Austin II, in 2016.
Most famously, Roberts wrote in a busing case 15 years ago, “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” So when Waxman likened the occasional cases where race is determinative to the times when the orchestra needs an oboe player, Roberts wryly noted, “We did not fight a Civil War about oboe players. We did fight a civil war to eliminate racial discrimination.”
But could the Supreme Court nevertheless forge some sort of compromise, perhaps ruling against Harvard and UNC without overturning the whole diversity regime? After last term’s Dobbs decision, it seems unlikely that a mere allegiance to precedent will lead to an upholding of racial preferences — particularly given that, unlike with the national division over abortion, affirmative action is overwhelmingly unpopular, including among racial minorities.
Moreover, Grutter has generated no legitimate reliance interests. It could not, because, as the court held in setting aside racial preferences in government contracting (Adarand Constructors v. Peña, 1995), when precedent “undermines the fundamental principle of equal protection as a personal right,” it is the principle, not precedent, which “must prevail.”
And because Grutter itself required that such policies “must be limited in time” and should face “sunset provisions” forcing regular “reviews to determine whether racial preferences are still necessary,” the Harvard and UNC lawyers’ inability to define the necessary conditions for an end point was telling.
What the court authorized in Grutter was a temporary, grudging exception to America’s equal-protection principles that has, alas, metastasized into a threat blooming across the legal landscape, economy and society as a whole. Despite Grutter’s own language, the case has been taken to signal that it may be legally permissible beyond the admissions context for government actors to discriminate on the basis of race.
Even in the university setting, Grutter hasn’t achieved the educational or other benefits its proponents laud. Instead of creating academic communities with a broad mix of perspectives and life experiences, or even making amends for social injustices such as slavery — which the court has never accepted as a constitutional justification for racial preferences — race-based admissions have served to further entrench wealth and privilege, while corporate diversity efforts have led to a culture of groupthink.
In short, it’s long past time for the court to recognize that Bakke and Grutter were a deviation from equal-protection principles and spawned pernicious racial balancing under the guise of diversity. Come June, the court is likely to excise that aberration and begin to rehabilitate American ideals.
That would be a good, healing development in this polarized time.
Ilya Shapiro is the director of constitutional studies at the Manhattan Institute. He’s the author of “Supreme Disorder: Judicial Nominations and the Politics of America’s Highest Court” and the Shapiro’s Gavel Substack newsletter. He also filed an amicus brief supporting Students for Fair Admission in the Harvard and UNC cases.