The Supreme Court will soon announce a decision in Students for Fair Admissions, Inc. v. University of North Carolina. The plaintiff filed suit in 2019 claiming that UNC discriminates against white and Asian applicants by giving preferential treatment to Blacks. (The Court is also considering the same group’s suit against Harvard.)
UNC claims that its limited consideration of race as one factor in admissions is in compliance with the Court’s rulings in previous cases. The federal court that heard the case in 2021 agreed, but the Supreme Court decided to hear the appeal. The justices seemed eager to rule on the matter, since they took the case before the plaintiff’s appeal could be heard by an appellate court. The new conservative majority is widely expected to take this opportunity to put an end to affirmative action in college admissions.
Color-blind or color-conscious?
Should college admissions offices ignore race in their decisions or consciously promote racial diversity? A hypothetical example may illustrate the dilemma.
Suppose the university has to choose between two very good students from different racial backgrounds. The white candidate scores slightly higher on conventional criteria like grade-point-average and test scores. Suppose that candidate comes from an affluent family with many advantages, including graduating from an expensive private prep school. The black candidate comes from a poor neighborhood and attended underfunded public schools. Should the university ignore the racial disparities and admit the first candidate, or should the second candidate be given some additional credit for overcoming racial and socioeconomic adversity? If African Americans are under-represented at the university in comparison to their proportion of the population, as they are at UNC, should the university consider the potential contribution of minority applicants to the social and intellectual diversity of the student population? Will the education of all students benefit from having minority voices in classes like history or sociology? Is the university’s responsibility limited to acting as a fair referee in an individual competition, or does it have a responsibility to create an optimal learning environment for all students?
The idea of a color-blind society appeals to most Americans because it seems to imply a triumph of meritocracy over past discrimination. But the idea of diversity on college campuses or in corporate boardrooms also appeals to most people. Many would like to assume that meritocracy and diversity can go hand in hand, as the most talented people from a variety of backgrounds achieve academic and economic success. In the long run, they might be right. Maybe in the very long run, what we now call “races” will become so intermingled socially and genetically that trying to put people into color-coded categories will seem silly.
But what about the short run? Is it fair to ignore the legacy of discrimination and assume that people of all backgrounds can compete on an equal playing field? Advocates of affirmative action believe that social justice requires some special effort to identify and develop hidden talent, in order to accelerate the movement toward a more just society. Today those advocates include the many corporations and professional associations that filed amicus briefs in support of the universities. One of their arguments is that businesses look to universities to provide a diverse source of leadership for organizations that have to function in a diversified national and global environment.
By the way, the much-maligned term “woke” is a slang term that often refers to racial consciousness (as well as gender consciousness). That is why the NAACP is promoting the term. Meanwhile, “anti-woke” has become a code word for opposition not only to affirmative action, but to social justice movements like Black Lives Matter. People who want to pretend that the playing field is already level—that all lives already matter equally—can dismiss such movements as nothing but attempts at reverse discrimination.
Legal precedents
If the Supreme Court rules against UNC, it will be overturning 45 years of precedent. As far as I can tell, the university’s affirmative action program exemplifies the kind of moderate approach that the Court has accepted in the past.
Regents of the University of California v. Bakke in 1978 set a standard for later cases. When Allan Bakke was rejected for admission to the UC Davis medical school, he claimed discrimination because the school had reserved 16 seats for minority students in a class of 100. The Court ruled in his favor, arguing that rigid quotas were indeed discriminatory. But the decision also allowed race to be included as one factor in a more comprehensive evaluation.
That principle has been upheld in several cases in the past twenty years. In some cases, the Court sided with the plaintiff (Gratz v. Bollinger) and sometimes with the university (Grutter v. Bollinger, Fisher vs. University of Texas), but it never insisted on completely color-blind admissions. Now the Court seems poised to do so.
Affirmative action at UNC
The University of North Carolina is a public institution, but a highly selective one. Only about one out of ten undergraduate applicants is accepted. The admissions office evaluates applicants using a wide range of criteria, including not only high-school grades and test scores, but student essays, letters of recommendation, outside activities, and personal qualities like curiosity and motivation. Although race is one consideration, the trial court concluded that “race is one of more than forty criteria considered in every application, and the evaluation process is flexible enough to consider all of the pertinent elements of diversity that may be present for any particular applicant… UNC’s policies are clear that race may never be used as the defining feature of a candidate’s evaluation.”
One issue in the original trial was whether UNC’s evaluation process is really as “holistic” as the university claimed. The plaintiff maintained that racial considerations dominate the process, and that the university actually gives “mammoth racial preferences” to African American and Hispanic applicants. The trial court failed to find evidence of that. Of course, this factual question could be a moot point if the Supreme Court decides that any consideration of race in admissions, so matter how small, is unconstitutional.
The plaintiff also argued that UNC had made no serious effort to consider race-neutral alternatives that could increase campus diversity, such as more financial support for low-income students without regard to race. But the university was able to satisfy the court that it has pursued such initiatives. One of them is the Carolina Covenant program, which “supports the full financial need of academically qualified low-income so they may graduate debt-free.” Another is the Carolina Student Transfer Excellence Program, which “partners with 14 community colleges in North Carolina — most in rural counties — to identify talented low-and moderate-income community college students and to provide a pathway for admission to UNC-Chapel Hill.” The trial court concluded:
Through an exhaustive exploration of RNAs [race-neutral alternatives] that have been implemented and others that are purely theoretical, the University has shown that there are not any available, workable, or sufficient RNAs that would allow it to achieve its diversity goals. Accordingly, the Court finds that UNC has satisfied its burden of demonstrating that there is no non-racial approach that would promote such benefits about as well as its race-conscious approach at tolerable expense.
How much racial diversity has UNC’s affirmative action program actually achieved? A recent entering class was about 12% Black. That is not too far below the percentage of Blacks in the US population (about 14%), but it compares less favorably to the percentage in the North Carolina population (about 21%). The university itself acknowledges that affirmative action has had only a small effect on racial composition. Because the admissions process is holistic, a candidate’s race tips the decision from rejection to acceptance in only a very small number of cases. The trial court accepted the university’s analysis on this point.
Affirmative action and the Constitution
I am curious not only about how the Supreme Court will rule, but about how the majority will reason. The most conservative justices are “originalists” who claim to base their decisions on the meaning of a legal text at the time it was adopted. Maybe the framers of the 2nd Amendment intended for individual citizens to be able to own guns, but did the framers of the 14th Amendment intend the equal-protection clause to mandate a completely color-blind society? Given the institutionalized segregation and discrimination that legislators and courts upheld from the 1860s until well into the twentieth century, that hardly seems to have been the intended meaning. UNC was not required to admit its first black students until 1951. After using race for so many years as a basis of exclusion, will we now decide that the Constitution forbids any special efforts at inclusion?
When the Court struck down key provisions of the Voting Rights Act, the majority opinion did not say that special efforts to protect voting rights in states with a history of discrimination were inherently unconstitutional. It only required the federal government to keep demonstrating that such efforts were still needed in the target states or counties. That left the door open to an updated Voting Rights Act, although only one major political party was interested in walking through it.
I don’t know of any simple constitutional argument that would settle the question of whether the United States is ready to function fairly as a color-blind society. It is a judgment call. I wish I had more confidence in the judgment of the current justices to make that call wisely.
Beneath the Surface 