The Supreme Court’s Options in the Harvard and UNC Affirmative Action Cases

The Supreme Court heard oral arguments today in two cases challenging Harvard and UNC’s inclusion of racial preference in admissions. The plaintiffs contend that Harvard and UNC’s admissions policies violate Title VI of the Civil Rights Act of 1964, and that UNC—as a state institution—is also in violation of the Equal Protection Clause of the Fourteenth Amendment (which restricts discrimination by the government, but not that by private parties). Harvard and UNC say their policies are designed to promote “diversity” in education, a cause for which there have been previous Supreme Court decisions.  Grutter v. Bollinger 2003 Fisher v. University of Texas II(2016) Allow at least some use racial preference.

This post will cover the main options available to the justices. It is likely that the Court’s conservative majority will rule in favor of UNC and Harvard. There are many ways the Court could decide to do this, and each has different implications in future cases. The Court should simply declare that diversity is not an “impelling state interest” that justifies the government’s use of racial disparaging by the Fourteenth Amendment. This would also be in violation Title VI. However, this is not the only choice for the justices.

Reaffirming these facts is the simplest way that Court can decide on such cases. GrutterAnd Fisher II Courts lower than me have ruled that Harvard and UNC policies are legally valid. This possibility is unlikely, so I won’t spend too much time discussing it. The conservative majority of Court justices oppose this. If that majority wanted to keep the status quo they would probably not have chosen to hear the cases. Today’s oral arguments showed that six of the conservative justices were skeptical about universities’ positions.

This is the more probable option. Educational diversity could not be a valid reason for the application of racial preferences. One can make a plausible case that the text and original meaning of the Fourteenth Amendment permits the use of racial preferences for purposes of compensatory justice—offsetting a long history of discrimination against minority groups, particularly African-Americans. There is no historical or textual justification for “diversity preferences”. This is especially true when racial groups are used to determine which groups receive preferences. These decisions can be arbitrary and broad, and often amounts to nothing more than crude ethnic and racial stereotyping. David Bernstein, my blogger co-blogger points out in an amicus short he filed in the case.

Harvard UNC Cannot Justification Grouping People Who National origins Reprezent
About 60% of the entire world’s population is estimated to be in this group. Although there are many variations within the category, “Asian” is synonymous with this ethnicity. appearance, language, culture. Nor Can They Why white Europeans come from Spain? indigenous Mexican descent, People This is Afro-Cuban descent and South and Central Americans who could be Any combination of European and African elements, as well as indigenous, can be used by descent can be grouped together under the “Hispanic” umbrella.

As crude as it is, the “white” category lumps together diverse groups such as Russians, Italians and Arabs. You can read more about the flaws in diversity reasoning here. Among other things, if taken seriously, it creates a nearly limitless rationale for discrimination in favor of  a vast array of different groups. Why not other important government interests, such as educational diversity? Why can’t law enforcement use racial profiling to promote public safety or reduce crime? They seem just as important as diversity.

Today’s oral argument raised the question of the arbitrariness in the classifications used by schools. Justice Alito, for example, asked Justice Alito why students from Afghanistan were included in the “Asian” category alongside Chinese and Japanese applicants. He also wondered if such questionable choices render the university classifications “arbitrary and therefore unconstitutional.” Ironically, David Bernstein notesAfghan applicants usually are classified as white, rather than Asian. It is not less absurd to group them with Italians, Germans, or mix them up with Chinese or Japanese.

Oral argument was a common experience for conservative justices. Grutter completely. However, it is not certain if this position has a majority.

It is possible that the Court will instead rule in favor of Harvard and UNC, but not barring preference preferences based on diversity. The Court would maintain that diversity is a compelling state interest, which could justify the inclusion of racial classes in admissions. But the majority would also rule that the crude categories used by Harvard and UNC aren’t enough to pass the other requirement  the “strict scrutiny” test the Court has long imposed on racial preferences: such policies must also be “narrowly tailored” to the achievement of the compelling interest that justifies them.

GrutterAnd Fisher IIAlthough the Court said it would apply rigorous scrutiny to university officials, they were actually allowed to give them great latitude in deciding what type of diversity was needed for educational purposes and which racial preferences. The Court in the Harvard/UNC case could be more forgiving and demand that universities clearly state the benefits they seek and show strong evidence that race-neutral policies do not achieve these benefits.

The following is for fans: stare decisisThis approach could have the advantage of not having to overrule precedents from the Supreme Court. It would intensify the already strict scrutiny. GrutterAnd Fisher IIHowever, it would not affect many of the decisions in those cases.

Today’s oral arguments saw conservative justices ask how long we should keep diversity preferences, what measures can be used to determine the educational benefits, and if admissions policies could better match those benefits. These questions could indicate an interest to tighten up the judicial review on diversity preferences without completely banning them.

The Court’s tightened scrutiny approach would lead to future litigation as universities attempt to reform their racial preferences policies in order to comply with the stricter new rules.  The Court would still preserve the anomaly that diversity is a sufficient compelling interest to justify racial preference policies, while other equally worthy government interests are not.

Apart from deciding whether or not to ban diversity reasoning, the Court also needs to decide if it will rule against universities solely based upon Title VI, or (in UNC’s case) also under the Equal Protection Clause. Title VI, which is the text, seems to prohibit all racial/ethnic preferences in educational programs that receive federal funding. This includes Harvard and most other universities.

A person from the United States cannot be disqualified, denied benefits or discriminated on the basis of their race, color or nationality under any Federal program or activity.

It is important to note that there are no exemptions for ethnic and racial preferences made in order to promote diversity or any other purpose. They could dismiss the Harvard and UNC programs easily if the justices based their decisions on Title VI and avoid the difficult task of understanding the Fourteenth Amendment.

The Court, however, has always allowed Title VI to be used in educational settings where it deemed the 14th Amendment permissible. And the justices have a strong presumption against reversing their own statutory precedents—much stronger than that against reversing constitutional decisions. This makes it less likely that a decision solely based on Title VI will be made. However, the justices may decide that an earlier decision’s misinterpretation Title VI was so grave that it merits its reversal. Only a few major statute precedents are so clearly against the plain meaning of Title VI.

Justice Neil Gorsuch was very keen to issue a Title VI ruling during oral argument in UNC’s UNC case. He pointed out that Justice Stevens made a powerful Argument in Bakke [the 1978 case where the Court first addressed the use of racial preferences for diversity purposes]That is the Fourteenth Title VI Amendments: Does it allow or not? language is plain and clear….. Title VI Discrimination on the grounds of race or religion is not allowed race.” The fate of any justices remaining in this situation remains unknown.

If Harvard and UNC are ruled out by the Court based on Title VI alone, Congress will be able to amend Title VI for diversity-based preference. However, such legislation is unlikely to be passed due to the opposition of over 70% of the population, including Democrats (62%), Republicans (87%), blacks (59%), whites (79%), Hispanics (68%), and others.

A wide-ranging ruling against racial preference might lead to a wavering judiciary. Although Chief Justice John Roberts, and other justices might worry about Court’s decline in popularity, it could be beneficial for Harvard and UNC to get a stronger ruling. The public opinion indicates that the ruling against UNC and Harvard is not going to have any negative impact on their reputations.

It is important to emphasize, however that the popularity of racial preference does not necessarily indicate whether or not they are good policies. The author of a book about political ignorance, I know that most people are wrong. Hence, even though most people agree with me on the issue, it doesn’t mean that I am right.

Some commentators, most notably, Yale Law School Prof. Justin Driver, have suggested that the Court could—at least temporarily—save affirmative action by relying on Justice Sandra Day O’Connor’s statement in her majority opinion in GrutterThis is the “[w]In 25 years, we expect the need to stop using racial preferences. This deadline is still six years away. It is highly unlikely that this Court statement will be used to temporarily protect racial preferences. The 25-year standard, among other factors, is a maximum and not a minimum. The 25-year standard does not guarantee that race preferences will be protected until 2028. AfterThis is what I mean.

Today’s arguments often mention O’Connor’s 25-year rule. However, I don’t see any indications that conservative justices would conclude that the racial preference should be maintained for six more years.

The final step is for the justices to address the concerns raised by Harvard’s apparent policy that favors Asian-American applicants in comparison to whites. This issue was raised by several justices in Harvard’s oral argument.

The Court will decide that race preferences are prohibited. This ruling will also dismantle Harvard’s anti Asian policies. However, if certain diversity-based preferences are found legal, then the Court could have to issue a ruling for situations in which an institution attempts to minimize the presence of a minority group within the student body. The justices should make it clear that even though some diversity-promoting preferences may be permissible they do not justify discrimination against Asians. This is in the same way as targeting Jews or blacks. Anti-Asian discrimination for the sake of diversity is an issue at elite colleges and some select public high schools. It is similar to early 20th century discrimination against Jews at the same institutions.

Even though the Court bans diversity-based preference racial preferences categorically, universities may still attempt to pursue them secretly, such as by using facially neutral admission criteria that are related with race. Future litigation could result from such practices. Even though Harvard and UNC rulings could reduce racial preferences but not eliminate them completely, they may be used to stop future litigation. Hidden preferences, which are more difficult to maintain and implement than open preferences, can attract legal action. In large bureaucracies, such as the admissions offices at major universities, it can be difficult to keep secrets.

In the current cases, the Court seems to be likely to rule in favor of UNC and Harvard. However, the Court can use a variety of approaches to justify their decisions.