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Will the Supreme Court End Affirmative Action?

Can race continue to be a factor in university admissions?

Justice Department Sides With Asian-Americans Students That Are Suing Harvard Over Admissions
A Harvard University building on August 30, 2018 in Cambridge, Massachusetts. (Photo by Scott Eisen/Getty Images)

If you thought the Supreme Court threw up some dust overturning Roe v. Wade, watch this current term as the Court considers overturning Grutter v. Bollinger and decides whether “race-conscious” admissions programs at Harvard and the University of North Carolina are lawful.

The two cases the Court might use to overturn Grutter, Students for Fair Admissions Inc. v. President & Fellows of Harvard College and Students for Fair Admissions, Inc. v. University of North Carolina, pose three questions. First, can race be a factor in admissions? Second, has Harvard violated Title VI of the Civil Rights Act by penalizing Asian-American applicants? And third, quoting the Court, can a university “reject a race-neutral alternative because it would change the composition of the student body, without proving that the alternative would cause a dramatic sacrifice in academic quality or the educational benefits of overall student-body diversity?”


The essential question, then, is this: can race continue to be a factor in university admissions?

In 2003, the Court in Grutter upheld affirmative action in academic admissions, saying race can indeed be considered in admissions decisions alongside things like tests and grades. After being denied admission to University of Michigan Law School, white student Barbara Grutter sued the school, alleging it discriminated against her on the basis of race in violation of the Fourteenth Amendment's right to equal protection, as well as Title VI of the Civil Rights Act of 1964. She claimed, in the words of the Court, that she was rejected because the law school “used race as a ‘predominant’ factor, giving applicants belonging to certain minority groups a significantly greater chance of admission than students with similar credentials” from disfavored racial groups such as whites and Asians.

Precedent was not on her side. The earlier Bakke case was seen as binding precedent establishing that fostering diversity was a "compelling state interest." The Grutter Court similarly claimed that, in light of Bakke, the “Law School's use of race was narrowly tailored because race was merely a potential 'plus' factor." Viewing a candidate’s race as a “bonus” was allowed, but using race as the predominant criteria for admission was not.

The Court found the Law School's "narrowly tailored use of race" in admissions decisions furthered “a compelling interest in the educational benefits that flow from a diverse student body and is not prohibited by the Equal Protection Clause.” What some came to call "reverse discrimination" was allowed within certain boundaries because it furthered the “compelling interests” of a more diverse student body and broader access to higher education.

The premise behind the Grutter decision is that disparities between groups in things such as admissions are always the result of discrimination. In this view, the focus on individual rights (such as Barbara Grutter's) distracts from the more important struggle against systemic racism.


The problems with this idea are manifold. Space at all academic institutions, and especially at the top tier ones, is limited. To explicitly favor one group necessarily means excluding other groups. That is why Students for Fair Admissions Inc. v. President & Fellows of Harvard College has amici groups that believe Harvard is violating the Civil Rights Act by penalizing Asian American applicants in favor of blacks. These groups include Chinese American Citizens Alliance, the Jewish Coalition for Religious Liberty, the Asian American Coalition For Education, and the Asian American Legal Foundation. Also included is the Coalition for TJ, a group representing Northern Virginia's super magnet school Thomas Jefferson High, which won a suit recently that deemed the school's race-based admissions policy illegal.

The tide is turning around the nation. In addition to the win for a return to merit-based admissions at Thomas Jefferson High, the San Francisco School Board returned the admissions policy at Lowell, the city’s most prestigious public high school, to the merit-based system it had used for more than a century. New York City's most sought-after high schools, including Stuyvesant, held on to their merit-based system even as other high schools switched to a lottery system.

If Grutter is overturned, that would end 45 years of precedent holding that race could be used as one factor among many in evaluating applicants. The universities argue race-based decisions are lawful, and serve an important national interest.

Colleges have a long, sordid history of discriminatory admissions policies. Kenneth Marcus, assistant secretary for civil rights at the Trump administration’s education department, said Harvard’s treatment of Asian students was reminiscent of its efforts to limit Jewish enrollment. 

“Just as Harvard in the 1930s thought that Jewish students lacked the character to make them good Harvard men,” he said, “so today they often view Asian students as lacking the appropriate character.” 

One defender of affirmative action in admissions almost seemed to confirm the opposition's point, telling the New York Times that “Race-conscious admissions policies are a critical tool that ensures students of color are not overlooked in a process that does not typically value their determination, accomplishments and immense talents.”

Like Roe, Grutter and Bakke represent efforts by the Supreme Court to remake society through judicial fiat. With Grutter, the Court took it upon itself to endorse the use of race in admissions by claiming the nation had a “compelling interest” in a racially diverse higher-education system. 

And the potential fallout from overruling Grutter is huge. According to documents filed with the Supreme Court, a reversal of the current race-conscious standard could shrink the percentage of black students admitted to Harvard by more than two-thirds.

While they are significantly more likely on a proportional basis to be enrolled at Harvard than whites, black applicants’ SAT scores were significantly lower than those of whites. Harvard’s existing policies roughly quadruple the likelihood an African-American applicant would be accepted relative to a white student with similar academic qualifications. Most African Americans fell into the bottom 20 percent of all applicants to both Harvard and UNC, but were admitted at the highest rate in almost every performance decile.

In the two upcoming cases, the Court has a chance to realign itself and college admissions with popular opinion. A 2019 survey found 73 percent of Americans said colleges and universities should not consider race or ethnicity when making decisions about student admissions. Justice Kentaji Brown Jackson will not recuse herself from these cases despite having been involved with one of them in the lower courts. She will join liberals Kagan and Sotomayor in likely support of affirmative action. Those justices will be largely unsupported by the public and their Court colleagues. The next class at Harvard and other sought-after schools may look very different from the one that starts this fall ahead of the Court's decision.


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