Can Affirmative Action Survive the Supreme Court?

In June, 2016, Justice Samuel Alito took the unusual step of reading aloud from the bench a version of his lengthy dissent in the case of Fisher v. University of Texas. A white applicant who had been denied admission had sued, saying that she’d been discriminated against because of her race. The Supreme Court, by the narrowest of margins and on the narrowest of grounds, upheld Texas’s admissions policy. Alito, with steely indignation, picked apart the logic of U.T.’s arguments and of his colleagues’ majority opinion. “This is affirmative action gone berserk,” he declared.

The civil-rights revolution ended the Jim Crow system of legally mandated racial segregation in the South. Its success made it obvious that much of the rest of the country was segregated, too, in fact if not always explicitly by law. In the years after the passage of the major civil-rights legislation, many colleges and universities made a concerted effort to become more racially integrated. Alito was complaining about U.T.’s version of this effort, but affirmative action has been controversial from the beginning, because more Black students usually means fewer students of other ethnicities. Students who weren’t Black used the laws banning racial discrimination to claim that universities were now discriminating in favor of Black people, and against them.

Alito concluded his dissent with an impassioned statement: “What is at stake is whether university administrators may justify systematic racial discrimination simply by asserting that such discrimination is necessary to achieve ‘the educational benefits of diversity,’ without explaining—much less proving—why the discrimination is needed or how the discriminatory plan is well crafted to serve its objectives.” In his view, the University of Texas, once the target of a civil-­rights lawsuit charging it with discriminating against Black people, was now discriminating, just as unacceptably, against others. He went on, “Even though U.T. has never provided any coherent explanation for its asserted need to discriminate on the basis of race, and even though U.T.’s position relies on a series of unsupported and noxious racial assumptions, the majority concludes that U.T. has met its heavy burden. This conclusion is remarkable—and remarkably wrong.”

Affirmative action is one of many policies—not just in admissions but also in employment, contracting, education, and voting—that take race into account, as a way of reversing the effects of many more policies, lasting for many more years, that openly discriminated against Black people. The Supreme Court has been ruling on these policies for half a century. In 1954, the Court joined the civil-rights revolution in a unanimous decision declaring legally segregated public schools to be unconstitutional. Since then, it has had a much harder time making up its mind in cases involving race.

The Court has considered affirmative action in university admissions six times. The first time, the Justices wound up declaring the case moot. The second time, they voted 5–4 against an explicit, numerical version of affirmative action, and 5–4 in favor of a less explicit version. The third and fourth times involved two lawsuits against the University of Michigan, which the Court decided simultaneously. In one, it ruled against another explicit, numerical version of affirmative action by a 6–3 vote, and in the other it once again voted 5–4 in favor of a less explicit version. The fifth time was the University of Texas case; the Court sent it back to a lower court for reconsideration. That led to the sixth time, in 2016. It decided, by a one-vote margin, in favor of keeping a soft-edged kind of affirmative action that relies on the judgment of an admissions office to use race appropriately when considering an applicant. Is there any issue on which the Supreme Court has produced less clarity? But one thing has been true every time the Court has upheld a form of affirmative action in admissions: the swing vote in the decisions came from a moderate Justice appointed by a Republican President—a breed that no longer exists.

The nine Justices are now considering whether to hear Students for Fair Admissions v. Harvard, which accuses Harvard of discriminating against Asian American candidates. The case was organized by Edward Blum, a financial adviser who for more than twenty-­five years has been bringing lawsuits against various efforts to take race explicitly into account with the aim of helping people of color—including the Texas case. Another of Blum’s cases, which accuses the University of North Carolina of rejecting white and Asian American applicants because of their race, is currently moving through the lower courts.