This Supreme Court won’t uphold college affirmative action

A revolution in university admissions appears to be at hand.

The Supreme Court has agreed to hear two cases on affirmative action in higher education, raising the likelihood that it will strike down the practice in the near future. The only thing surprising about this development is the timing, in the same Supreme Court term that already promises other blockbuster conservative judgments.

The legality of race-based preferences in college admissions has been hanging by a thread for decades. Today, it would take two swing voters, Chief Justice John Roberts and Justice Brett Kavanaugh, to preserve the status quo.

The legal background goes back to 1978 when Justice Lewis Powell wrote a single-justice concurrence in a case called Regents of California v. Bakke. The question was whether it violates the equal protection clause of the 14th Amendment for a public university to factor an applicant’s race in an admissions decision.

Liberals devised affirmative action to remedy the history of racism in admissions. But Powell said that it was permissible for universities to consider race as part of an effort to create a diverse student body. The rationale came from a friend-of-the-court brief filed by Harvard University (where I teach) in which the university articulated a vision in which all students were said to have something special to contribute.

In the decades that followed, “diversity” became not just a legal rationale to allow affirmative action, but a value in itself, now inextricably linked to racial diversity. At the same time, conservative opposition to affirmative action has never waned. Constitutional attacks by activist groups have been a regular feature of the politics around it.

In 2003, Justice Sandra Day O’Connor provided the vote to keep diversity-based affirmative action constitutional as part of an overall qualitative assessment of candidates, even as she also held that race could not be counted quantitatively as part of a points system. The cases were Grutter v. Bollinger and Gratz v. Bollinger, both involving the University of Michigan.

When O’Connor retired and Justice Anthony Kennedy became the court’s main swing voter, conservatives thought they were poised to end affirmative action altogether, since Kennedy had voted with them in Grutter and Gratz. But Kennedy flipped sides. In the 2016 case of Fisher v. University of Texas, he cast the deciding vote to uphold consideration of race as part of a “holistic” admissions analysis guided by diversity.

For O’Connor and Kennedy, the key motivation seems to have been that striking down affirmative action would leave elite universities with fewer Black and Latino students than the percentage in the general population. Neither justice wanted to be the cause of the cultural crisis that could emerge as a result of a judicial decision.

The question now is whether Roberts, who has consistently voted to strike down affirmative action, and Kavanaugh, who hasn’t yet had the chance to vote on the issue on the Supreme Court, would go the way of Kennedy. That would entail betraying conservative orthodoxy.

Kavanaugh is under criticism by conservatives for joining Roberts in upholding President Joe Biden’s vaccine mandate for health care workers. Deviating from the movement’s position on affirmative action would put him at risk for being treated as an enemy by liberals on some issues and conservatives on others.

The upshot is that this is likely to be the end of the diversity rationale. Given that Harvard’s theory provided the original rationale embraced by Powell, perhaps it’s fitting that Harvard is a party to one of the two cases the court just agreed to hear. The key constitutional decision would have to come in the other case, involving the University of North Carolina, a public institution. The Harvard case, however, may serve the conservative justices as a good rhetorical tool.

In that case, anti-affirmative-action activists argued that diversity provided cover for discriminating against Asian American applicants. The lower courts rejected that charge. But the conservative justices could revive the claim to buttress the argument that affirmative action inherently violates the equal-protection guarantee for those who don’t benefit from it.

If that happens, and affirmative action ends, universities will have to find ways to respond.