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The Way They Say It Matters

The Supreme Court has a chance to make a strong defense of equality under the law in its upcoming affirmative action rulings.

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It’s springtime, so the U.S. Supreme Court is coming to the end of its term and releasing long-awaited decisions. Among the most interesting and consequential decisions should be the two affirmative action cases, in which Students for Fair Admissions, Inc. filed suit against both the University of North Carolina and Harvard. The cases are handled slightly differently because UNC is a public university while Harvard is a private college; nevertheless, because Harvard takes federal funding, the legal arguments are quite similar: The plaintiff argues that any race-conscious admissions policy discriminates against students from non-favored groups and violates both the Equal Protection Clause of the Fourteenth Amendment and Title VI of the Civil Rights Act of 1964.

Before getting into the details of these cases and the likely outcomes, it is worth remembering that courts do more than issue ultimate legal rulings. Especially in the case of the Supreme Court, the entire opinion, not just the raw outcome, sets precedent that directs future court rulings along with the activities of legislatures, rule-making agencies, and private entities bound by these rules. It isn’t merely a matter of whether the Court comes down on the correct side of the issue. It matters greatly how it articulates its reasoning. 


In anticipating the Court’s opinion in the affirmative action cases, then, there are two distinct questions. The first is whether the Court will end the affirmative action regime in American schools and beyond. Assuming the answer to the first question is yes, the second question is how the Court will speak in issuing its ruling. As we said, the answer to the second question matters.

To understand the state of affirmative action law, two cases are worth summarizing. In 1978, the Supreme Court decided Regents of the University of California v. Bakke, in which a white applicant was denied admission to the university and sued due to the university’s quota system, which reserved a certain number of spots for minority students. The Court struck down the race-based quota system, which should have been an obvious result given that the whole purpose of the Fourteenth Amendment and the Civil Rights Act is to prevent legal protection for race-based discrimination. Yet in its ruling, the Court announced that the university had a compelling interest in having a diverse student population. Therefore, universities could consider race, as long as it was one factor among many and not a pure quota system.

The second important case is Grutter v. Bollinger, decided in 2003. This opinion provides two important insights. First, it provides the current framework for what is and is not acceptable race-based discrimination in affirmative action programs: So long as a race-based affirmative action program is “narrowly tailored” to the goal of creating a diverse student body, and so long as there is a highly individualized review of each applicant, race-based discrimination in affirmative action programs remains constitutional. 

Second, Justice Sandra Day O’Connor made the fascinating contention that affirmative action had a shelf-life: Somehow, it was constitutional in 2003, but the hope was “that twenty-five years from now, the use of racial preferences will no longer be necessary to further the interest approved today.” Racial inequality in law school admissions was a compelling government interest in 2003, but apparently would no longer be a compelling interest justifying racial discrimination by 2028 or so.

The present cases on which the Court will rule in the coming weeks may very well overrule the affirmative action regime created by Bakke and Grutter. This would be the right outcome. It is a stain on our nation’s legal tradition that, after a century-long legal battle to end institutionalized racism—from slavery to Jim Crow—our Supreme Court has upheld the constitutionality of using race-based discrimination in the college admissions process. Affirmative action indeed belongs in the dustbin of history.


How might the Court’s manner of ruling set the tone for legislatures and executive agencies? An example from the overruling of Roe v. Wade shows the potentially massive difference in the ways the Court can articulate the same holding.

In an article before the Dobbs decision came down, Hadley Arkes wrote an excellent piece about the different ways the Court could handle the decision. Arkes provides two sample texts for how the Court’s holding could be worded. Arkes’s first example gives a strong moral and legal framework to instruct future courts and legislatures:

The case has been amply made by now, in the settled findings of embryology, that the child in the womb has been human from its first moments, a distinct life, not merely a part of the mother’s body. The legislature in Mississippi is amply justified in extending the protections of the law over this small human being, residing for a long moment in her mother’s womb. It falls to the states to weigh the question of when it would be justified to take this human life, with the same standards of judgment that enter into gauging the justification for the taking of any other human life. And so this matter should be returned to the domain in which citizens and their legislatures are free to deliberate again on the question of how the taking of life here will be measured in their standing laws on homicide.

The second remains morally neutral and severely limits its ability to guide future decisions and laws:

The question of when human life begins, or what is to be regarded as a human life in any stage, has been a controversial matter, heatedly debated, eluding consensus, and inflaming our politics. The judges who form this Court have no clearer answer to those questions than the answers that may be supplied by the first nine names in any telephone directory. And as the locale shifts to cities and states, so too will the temper and “values” borne by those first nine names. We therefore send this matter back for people in the states to deliberate upon again—to make their own “value judgments” on when human life begins, and on when that developing life commands the obligation of the law to protect it.

The difference between Arkes’s two examples is stark. The first case explains that the science is now clear: The unborn child is not part of its mother’s body, but has a separate life with separate DNA. Since the law imposes high burdens on the taking of human life, states will have to very carefully weigh when, if ever, it is permissible to allow abortion to remain legal. The second case punts on the question of human life in the womb, declaring that the Constitution is silent on the matter. Therefore the Court “steers around any serious deliberation, for [the decision] is framed with the premise that there is no truth by which to gauge our judgments.” 

The first iteration of this decision would instruct the states on the central question (what is human life and how should it be protected?) that needs to be grappled with in the post-Roe world. The second gives no instruction at all, stating that abortion is not a constitutional right, and sending the question back to the states to deal with as they may.

In the Students for Fair Admissions cases, the Court could softly affirm that, given the serious need for racial diversity, affirmative action was appropriate to serve the compelling interest of diversifying campuses for a time, but enough racial diversity has probably been achieved (even five years earlier than Justice O’Connor had anticipated). Since affirmative action no longer serves a compelling interest, it is no longer needed.

Or the Court could defend the Equal Protection Clause and the purpose of the Civil Rights Act in full force. It could proclaim that the struggle to end slavery and establish the Fourteenth Amendment, culminating in the Civil Rights Act, was precisely a fight to enshrine in our law that it is absolutely impermissible for people to be discriminated against on the basis of race. Affirmative action undermines these laws and this principle, and therefore race-based discrimination is blatantly unconstitutional and cannot be tolerated in any form. 

Bakke and Grutter may have been well-intentioned, but the Constitution does not allow people to be denied the equal protection of the laws because of their race. Period. Therefore, race-based affirmative action schemes of any kind are unlawful, and American institutions of all kinds must be content to judge their applicants, not on the color of their skin, but the content of their character.

This second option is not judicial overreach, but a full, proper, contextual explanation of the law. The job of the conservative judge is not to invent rules that go beyond the law in the case, but sometimes activist overreach needs to be corrected by a judicial opinion that boldly and completely explains and reverses an error. Affirmative action is such a case. 

Our nation has a long history of trying to right the wrong of race-based discrimination in our laws, and affirmative action stands as an unconscionable exception to this principle. May the Court correct this, and may they say it clearly, leaving no doubt as to what legislators and college admissions officials must do next.


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