Writing for the majority in the 2003 Supreme Court decision Grutter v. Bollinger, Justice Sandra Day O’Connor looked back at precedent: “It has been 25 years since Justice Powell first approved the use of race to further an interest in student body diversity in the context of public higher education.” She was referring to Justice Lewis F. Powell’s 1978 decision in Regents of the University of California v. Bakke, which first deemed race-conscious admissions policies constitutional. Justice O’Connor’s 2003 opinion recognized student-body diversity as a compelling state interest, and affirmed that race-conscious admissions decisions were acceptable. But she hoped they wouldn’t continue indefinitely, adding, “We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.”
I was vice president and general counsel at the University of Michigan when we defended our admissions process in the paired cases brought by Jennifer Gratz, against our undergraduate-admissions policy, and Barbara Grutter, against the admissions policy at our law school. We lost the undergraduate case, with the court finding the system too formula-based, and we won the law-school case, where our holistic policy was found to be appropriately narrowly tailored. Indeed, for the half-century since Bakke — through our two cases, and the two Fisher cases in Texas — the thrust of Supreme Court precedent has been consistent: that student-body diversity is an educational good, that it is acceptable to take race into account as one factor among many in a holistic process that aims to achieve that goal, and that the questions to be adjudicated are about the appropriate tailoring of those policies.
But on Monday, the Supreme Court heard oral arguments in two cases that aim to overturn the Grutter precedent, brought by Students for Fair Admissions against the University of North Carolina at Chapel Hill and Harvard College. The justices seemed most interested in two questions: Whether, in O’Connor’s framing, the use of racial preferences is still necessary to further the interest of student-body diversity, and, if so, when those preferences will no longer be necessary.
Some of the conservative justices seemed to argue that O’Connor’s comment in Grutter effectively turned the 25-year limit into a mandate; of course, O’Connor’s plain language labeled it an expectation, based on the progress the country was making in improving K-12 academic achievement among minority students. As Ryan Park, the solicitor general of North Carolina, put it in response to a question from Justice Amy Coney Barrett about the eventual end of these programs: “I think it’s a dial, not a switch.”
For all the focus on the time-frame question, nearly all the justices — with the notable exception of Justice Clarence Thomas, who repeatedly pressed lawyers defending affirmative-action policies to define what diversity means — seemed to accept the major holding of Grutter, that student-body diversity is a valuable goal and a compelling state interest. They differed on how to achieve that goal in a constitutionally permissible manner.
The court will apply the constitutional standard of “strict scrutiny,” which applies to equal protection violations that involve race. It comprises two tests. First, the policies in question must advance a compelling state interest. Second, they must be narrowly tailored to that interest — that is, not overbroad. The question of whether the two colleges’ admissions policies are, in fact, narrowly tailored took up a significant portion of the nearly five hours of questioning. Much of the discussion focused on the adequacy of race-neutral alternatives to affirmative action for achieving similar student-body diversity.
The justices delved deep into the workings of UNC and Harvard’s admissions systems, examining how race influenced admissions officers’ decision-making. In particular, there were questions about whether so-called box-checking by applicants who wished to indicate their race resulted in individualized consideration of their applications or stereotyping. And several justices focused on whether application essays discussing racially relevant experiences would be permissible if race could not be considered, with an apparent consensus that essays could be relevant even if race-conscious admissions were limited or eliminated so long as they were about the “experiential” aspects of a racial background. Still, the three liberal justices suggested that individualized consideration of race and ethnicity could remain relevant even if an applicant did not choose to write about it.
What came through powerfully was the court struggling to balance the constitutional preference for race-neutral systems against the consequences of overturning these longstanding policies.
The justices discussed states in which race-conscious admissions have been banned by referenda, and asked whether universities in those states were able to achieve diverse student bodies. The evidence cited was mixed: The Universities of Michigan and California each filed an amicus brief contending that they have not achieved their diversity goals on their most selective campuses. The University of Florida, however, was mentioned as an institution that has student-body diversity without race-conscious admissions. There were many favorable mentions of “10-percent plans,” under which top graduates from a state’s high schools are automatically admitted to its public universities. Several justices wondered whether any proxy for race could in fact be race neutral. Justice Neil Gorsuch repeatedly noted other preferential admissions policies, such as those favoring legacies, the children of donors, and squash players, and questioned whether removing those preferences — which typically advantage white applicants — would reduce the need for race-conscious admissions.
In 2010, well after the Grutter case, I co-edited a book looking at the future of race-conscious admissions policies. Acknowledging Justice O’Connor’s time frame, it was titled The Next 25 Years. She contributed an essay, written with a former clerk, Stewart J. Schwab. “Our society needs students who participate in our democratic institutions and who are productive, broad-minded, and tolerant,” they wrote. “A college education, and increasingly a graduate or professional degree, is the most reliable path for developing such citizens, as well as the most reliable path to individual success and fulfillment. … For now, affirmative action remains an important strategy for many universities in enabling individuals of all races to take this path to success.”
Nineteen years ago, Justice O’Connor emphasized the importance of elite universities as a pathway to leadership positions, relying in part on arguments from business and military leaders. On Monday, several justices echoed this idea, and the U.S. solicitor general argued that race-conscious admissions allow the service academies to train a diverse officer corps. The basic question was asked by Justice Elena Kagan: Does it matter that our universities look like America?
I believe that it does. As the advocates for UNC and Harvard argued Monday, race-conscious admissions policies are sometimes still necessary to ensure a diverse student body has access to the opportunities Justice O’Connor identified back in 2003. No matter what decision the justices reach, as educational leaders, as universities, and indeed as a nation, we must stand up for all our students.
