U.S. Supreme Court Seems Poised to End Racial Affirmative Action in Higher Education

The U.S. Supreme Court, in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College1 and Students for Fair Admissions, Inc. v. North Carolina,2 is poised to invalidate race-based admissions in higher education under Title VI of the Civil Rights Act of 19643 and the Equal Protection Clause of the U.S. Constitution’s Fourteenth Amendment.4 The decision would mean that colleges and universities will no longer be able to use race as a factor in student admissions or in hiring faculty and staff.5

The Court’s conservative majority will likely end affirmative action for two reasons.6 The first is that the universities’ use of race in admissions is not narrowly tailored. This is because the universities might have considered other alternatives such as ending the mandatory preference for legacy applicants, faculty children and student-athletes, and considered use of other metrics such as first-generation and low-household wealth status in the admissions process to diversify their student body. The Court will also likely conclude that higher education diversity is not a compelling enough interest to justify discriminatory treatment based on race, because use of race to confer benefits is always scrutinized in a country with pronounced racial divisions.7

The Court’s three liberal leaning justices will likely dispute this characterization by arguing affirmative action is necessary to maintain Black and Hispanic enrollment at elite universities in view of the pronounced racial achievement gap between under-represented minorities as compared to Asians and whites.8 They will likely argue that Black and Hispanic admission to elite schools provides them access to leadership roles, which is necessary in a country that will be majority-minority in the near future.9

Behind the Arguments

The cases allege that Harvard and UNC-Chapel Hill illegally use race in their admissions processes to discriminate against Asian applicants.10 The universities maintain that their use of race is narrowly tailored to achieve a racially diverse student body, which the Court, first in Regents of the University of California v. Bakke, 11 and subsequently, in Grutter v. Bollinger, 12 concluded was consistent with the requirements of the Fourteenth Amendment’s Equal Protection Clause.13

Harvard’s Use of Race in the Admissions Process

Harvard’s entry classes have been demographically stable based on greatly divergent admissions standards based on race.14 Harvard claims this was because it considers factors beyond race such as leadership skills and character, to explain why it admits so many fewer Asian candidates than would be the case using entrance credentials alone. Petitioner alleges that use of non-objective metrics is a convenient way to artificially depress the number of Asian students.15 The trial court concluded there was no discrimination by Harvard against Asians.16 Rather, its use of race as one of several factors in the admissions process, was deemed narrowly tailored to achieve a compelling interest of higher education diversity, and therefore consistent with equal protection.17 The trial court decision was affirmed by the First Circuit Court of Appeals, which concluded that Harvard’s admissions requirements satisfied requirements of Title VI as elucidated by Bakke and Grutter.18

UNC-Chapel Hill’s Use of Race in the Admissions Process

UNC-Chapel Hill conceded it uses race as one of many factors in the admission process to achieve a diverse student body.19 Like with Harvard, petitioner alleges use of non-objective metrics are dishonestly applied to artificially depress the number of Asian students. For both in-staters (who are given priority), and out-of-staters, it is, based on objective criteria alone, far easier for Black and Hispanic students to gain admission than for whites and Asians.20

After the trial court concluded that its use of race, as one of several factors in the admissions process, was narrowly tailored to serve a compelling interest in higher education diversity, petitioner timely appealed the matter to the Fourth Circuit Court of Appeals.21 The U.S. Supreme Court granted certiorari before judgment to hear the matter and consolidated it with the Harvard case.22

A Short Primer on Equal Protection in Education

For nearly a century after the Fourteenth Amendment was adopted, the United States operated under the chimera that government-mandated separation of the races satisfied the amendment’s Equal Protection Clause.23 In Brown v. Board of Education,24 the Supreme Court finally concluded segregated public schooling violated equal protection, but, in Brown II,25 the Court facilitated delayed integration by allowing school districts to desegregate with “all deliberate speed.”26 Although by 1972-3, 91.3% of Southern schools were desegregated, this is misleading because desegregation is not synonymous with integration.27 Following public opinion, the Court went so far as to disallow inter-district desegregation plans such that minority schoolchildren remain relegated to underfunded majority-minority schools and even concluded that unequal funding of public schools is consistent with equal protection. 28 As of 2018, high wealth school districts receive roughly $23 billion more in aggregate funding than lower wealth districts.29

In-spite of these hurdles, the racial achievement gap between Black and White schoolchildren was reduced to its lowest level by the late 1980s.30 However, the effect of the Reagan tax cuts, in conjunction with the effects of deindustrialization and globalization, led to a growing wealth gap between white and Black Americans that has corresponded with worsening racial polarization and imbalance.31 In 2007, the Court concluded that school districts cannot combat this trend by using race as a factor in assigning students to public schools for integration purposes.32

Higher education only seriously began to be integrated with passage of and enforcement of Title VI of the Civil Rights Act, prohibiting discrimination.33 However, integrated higher education has been elusive because of continued discrimination in access to K-12 education. This explains why only 5% of lawyers are Black, only 2.1% of Black law school graduates obtain federal judicial clerkships, and only 1.8% of multi-tier law firm partners are Black.34 Although much of our focus is placed on admissions to highly selective universities such as Harvard and UNCChapel Hill, only 0.8% of America’s higher education students enroll in highly selective schools and the bulk of enrollment is in unselective community colleges.35

Relevant Law on Affirmative Action

In City of Richmond v. J.A. Croson Co.,36 the Court concluded that affirmative action programs designed to benefit minorities are subject to the same strict scrutiny as invidious discrimination. The Court, however, sustained diversity-based policies that gave preferential treatment to Black and Hispanic higher education applicants in Bakke, Grutter and, most recently, Fisher v. University of Texas,37 because use of race, as one of many

admissions factors, is deemed a narrowly tailored means of achieving higher education diversity. Many highly regarded Black American public servants and public intellectuals, such as Justice Clarence Thomas and John McWhorter, dispute its ostensible benefits, arguing that affirmative action regressively reinforces stereotypes about underrepresented minorities and depresses achievement by displacing Black and Hispanic students into elite schools where they disproportionately occupy the bottom of the class rankings.38 This theory is supported by evidence from California, where, after affirmative action to state universities and colleges was prohibited by a 1996 statewide ballot initiative, Black enrollment in the U.C. system was reallocated away from California’s flagship campus, U.C. Berkeley, in favor of U.C’s less prestigious sites.39 Even affirmative action’s defenders, moreover, often stipulate that it’s offensive and wrong to assume any person a beneficiary.

The Likely End to Racial Affirmative Action in Higher Education

Ending racial affirmative action in higher education will most dramatically reduce the number of Black Americans and Hispanics at elite schools.40 Law schools will have to spend significantly more resources to diversify without directly considering race as a factor in admissions and employment because the ABA’s accreditation requirements currently provide that “any constitutional provision or statute that purports to disallow consideration of race is not a justification for non-compliance” with its racial diversity requirement.41

Over time, though, ending racial affirmative action might improve admissions and employment of under-represented minorities at less elite schools where underrepresented minority students are provided more academic support.42 It may also force the country’s elite institutions to confront the issue of unequal schooling and socioeconomic exclusion that explains why affirmative action is used as a shortcut to diversity.

This still overlooks discrimination against Asian candidates at elite universities. The Asian designation conveniently disregards vast differences in socioeconomic status among billions of people spread across dozens of countries.43 It also, by implication, assumes that Asians are the children of professional class immigrants with social advantage and disregards the country’s lamentable history of racial discrimination against Asians. It took a full thirty years after enactment of the Fourteenth Amendment for the Supreme Court, in Wok Kim Ark v. United States,44 to finally enforce Asian birthright citizenship. As late as 1944, the Court, in Korematsu v. United States,45 concluded that the racial internment of all persons of Japanese ancestry, regardless of citizenship, was consistent with equal protection. The fact that universities feel comfortable to systematically rate Asian applicants lower in terms of character and leadership skills to artificially lower their likelihood of admission evidences an elite consensus that problematically disfavors Asians. This bias must be addressed if for no other reason than because Asians are expected to surpass Hispanics as the country’s largest minority group by 2055.46

The Court’s decision is expected in June 2023.

1 Docket No. 20-1199. 2 Docket No. 21-707. 3 Section 601 of Title VI of the Civil Rights Act of 1964 provides that “No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” Harvard is subject to Title VI because it, like all college and universities, received federal financial assistance. 4 Section 1 of the Fourteenth Amendment provides, in relevant part, “nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” UNCChapel Hill is subject to the Fourteenth Amendment because it is a state public university. 5 This is by logical inference because Title VI disallows discrimination by all entities receiving federal financial aid. 6 The Court’s conservatives include Chief Justice Roberts and, by seniority, Justices

COVER STORY By: M. Akram Faizer

LMU Law School

Thomas, Alito, Gorsuch, Kavanaugh and Coney Barrett. 7 For equal protection purposes, race discrimination can only be justified if narrowly tailored to achieve a compelling state interest. Justices Thomas and Alito made the point about reinforcing harmful stereotypes during the October 31, 2022 oral argument in this matter. Justice Thomas also made this argument in his dissent in

Fisher v. University of Texas, 579 U.S. 365 (2016) (Thomas, J. dissent). 8 The Court’s three liberals are, by seniority, Justices Sotomayor, Kagan and Brown Jackson. 9 https://www.brookings.edu/research/new-census-data-shows-the-nation-isdiversifying-even-faster-than-predicted/ 10 The parties agree that Title VI of the Civil Rights Act to imposes the same requirements equal protection requirements upon private colleges and universities that accept federal funds that the Equal Protection Clause imposes upon public universities. The use of Asian ethnicity is problematic as it includes people from the Indian Subcontinent, including India, Pakistan, Nepal, Bhutan, Bangladesh and Sri Lanka, East Asia, including China, Japan and Korea, Southeast Asia, including Vietnam, Laos, Cambodia, Thailand, the Philippines, Indonesia, Malaysia, Singapore, Hong Kong and Macau. It also includes Mongolia and other states in Central Asia. This comprises the vast bulk of humanity’s 8 billion people, yet arbitrarily excludes Asian countries such as Iran, the Arab states of the Middle East, Israel, the vast bulk of the Russian Federation’s territorial landmass, Turkey, Armenia, Georgia and Azerbaijan from inclusion. 11 438 U.S. 265 (1978). 12 539 U.S. 306 (2003). 13 The parties agree that Section 601 of Title VI of the Civil Rights Act to imposes the same requirements equal protection requirements upon private colleges and universities that accept federal funds that the Equal Protection Clause imposes upon public universities.” 14 Enrollment at Harvard is consistently between 10-12% Black, 8-12% Hispanic and 18- 20% Asian. White applicants, who scored in Harvard’s top academic decile as measured by test scores and GPA, had a 15.3% chance of admission, Asians had a 12.7% chance, African Americans had a 56.1% likelihood of admission and Hispanics stood a 31.3% chance. African American applicants in the fourth academic decile from the bottom stand a better chance of admission than Asian students in the top decile (12.8% v. 12.7%). By contrast, Asian students in the fourth academic decile from the bottom stand almost no chance at admission (0.9%) 15 By this, it alleges that Black and Hispanic candidates were receiving artificially inflated grades for leadership potential and character, while the opposite was happening to Asians. 16 Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, 397 F. Supp.3d 126 (D.Mass. 2019). 17 Id. Both Bakke and Grutter applied the Equal Protection Clause in adjudicating the legality of UC Berkeley and the University of Michigan Law School’s affirmative action policies. This is because both schools were public entities. Because Harvard is a private university, the Fourteenth Amendment does not apply to it. Rather, its admissions policies must satisfy Section 601 of Title VI of the Civil Rights Act of 1964 or 42 U.S.C. 2000d, which applies the requirement of equal protection to any program receiving federal financial assistance. See Weser v. Glen, 190 F. Supp. 2d 394 (E.D.N.Y. 2002). 18 Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, 980 F.3d 157 (1st Cir. 2020). 19 See Petition for Writ of Certiorari, Index No. 21-707. 20 The UNC-Chapel Hill, the bottom decile of candidates is only 6.5% Asian and 5.2% white, as compared with 16.9% Hispanic and 32.7% Black students. Moreover, 31% of Hispanics and 53% of Black students are from the bottom two deciles. With respect to out-of-state candidates, the share of Asian and white candidates in the bottom decile is only 4.4% and 6.8%, respectively, whereas 13.1% of Hispanics and 39.2% of Black students are admitted from the bottom decile. Over 58% of African American out-of-state students are from the bottom two deciles with respect to entrance credentials, whereas only 2% of African Americans are in the top decile, compared with 17% for Asians and 9.4% for whites. 21 Students for Fair Admissions, Inc. v. University of North Carolina, 567 F. Supp. 3d 580 (M.D.N.C. 2021). 22 Students for Fair Admissions, Inc. v. University of North Carolina, 142 S.Ct. 896 (2022). 23 See Plessy v. Ferguson, 163 U.S. 537 (1896) (concluding that segregated Jim Crow railcars satisfied equal protection. This, in turn, led the courts to countenance racially segregated education in the entire South and much of the rest of the country that implemented racially monographic school districts both formally and informally). 24 347 U.S. 483 (1954). 25 349 U.S. 294 (1955).