‘Bakke to the future?’ Supreme Court reconsiders affirmative action with a conservative majority

Forty-four years ago, the Supreme Court was the center of a raging protest by thousands as the justices took up the case of Regents of the University of California v. Bakke to decide if racial admission quotas were constitutionally permissible at a California medical school. As a teenage congressional page, I was one of the faces in that crowd gathered around the court in October 1977 to watch history being made.

It now feels like “Bakke to the future” as we once again debate the very basis for using race as a criteria for college admissions.

In Bakke, the court ruled against affirmative action in a fractured decision. Yet, in his plurality decision, then-Justice Lewis F. Powell Jr. stopped short of barring the use of race in admissions. Instead, he cited Harvard University’s admissions policy as an example of how race can be one of a number of diversity elements. That extremely nuanced decision would be replicated in decades of later precedent in which the court never seemed able to establish a clear rule on the use of race-based criteria.

For almost five decades, the court has struggled with the uncertainty left by Bakke. Now, the court — and likely another crowd — will gather again to consider the issue, including a review of Harvard’s current admissions plan.

There is reason to believe universities may have run out of time and patience from the court as it considers two challenges, Students for Fair Admissions v. President & Fellows of Harvard College and Students for Fair Admissions v. University of North Carolina. The recently minted 6-3 majority on the court could lose a conservative justice and still have the votes to brush aside nuance for clarity on the issue.

In a reflection of our changing demographics, the court will focus on discrimination directed against Asian applicants, not a white applicant like Bakke. With a higher percentage of top Asian American students, universities have been accused of creating an effective ceiling on Aisian American admissions to favor other groups.

At Harvard, admissions officials allegedly used a “personal” rating to achieve a constructive quota. Critics noticed that the admission of Asian students remained suspiciously similar from year to year, between 18 and 20 percent.

In the briefs before the court, Harvard is accused of a sophisticated, disingenuous system designed to hide racial preferences. Harvard uses scores in four “profile” categories for academic, extracurricular, athletic and personal ranking. Challengers argue that Harvard manipulates the score given for personality, likability, courage and kindness, to achieve the same race-based admissions levels.

It turned out that only 22 percent of Asian American applicants received a score of 1 (“outstanding”) or 2 (“very strong”) while over twice that percentage of African American applicants received those scores. That percentage roughly tracks the percentage of admitted Asian American students.

The Harvard and North Carolina cases raise long-standing objections that universities are gaming the system by using ambiguous “critical mass” arguments on diversity to achieve the same results as formal quota systems.

Race criteria in admissions has long discomforted justices, even some who have voted to allow its limited use. Since Bakke, the court has handed down a series of fractured and often conflicting 5-4 or plurality decisions.

For some justices, the use of race in admissions stands in sharp, irreconcilable conflict with the ban on racial discrimination in the Constitution under the Equal Protection Clause as well as the Civil Rights Act. In 2017, Chief Justice John Roberts declared: “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”

That clarity may well be at hand for Roberts. Last term, the new 6-3 conservative majority brought greater clarity to several areas with long-standing 5-4 divisions, including its decision to overturn Roe v. Wade. Justices now are asked to establish the bright-line rule that was lost with Powell’s plurality decision. To do so, they must curtail or overturn the 2003 decision in Grutter v. Bollinger.

Back then, the justices considered two different admissions programs at the University of Michigan. In Grutter,the court voted 5-4 to uphold the UM law school’s admissions system that evaluated applicants based on individual merit but used race as a “plus factor.” In Gratz v. Bollinger, which involved UM’s College of Literature, Arts and Sciences, six justices rejected an admissions process that applied individual considerations after a “threshold” use of race.

Notably, even the author of the majority decision in Grutter was uneasy with the use of race-based criteria. Then-Justice Sandra Day O’Connor wrote that the court “expects that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.” That was roughly 20 years ago.

There should be no serious debate that diversity in a class improves the educational experience for students. The question is whether time has finally run out on racial criteria for college admissions.

Some justices have indicated they have little tolerance for race-based criteria. In 2006, Chief Justice Roberts wrote: “It is a sordid business, this divvying us up by race.”

The court, however, has been in the business of race-based admissions criteria for 44 years. In addition to the view of race-based criteria as unconstitutional, some justices may believe past cases show that universities have been able to easily manipulate admissions systems to use race as a determinative factor.

While Justice O’Connor did not believe the use of racial preferences would be necessary past 2028, universities clearly do not agree.

Indeed, some universities are moving toward a new approach that could make it more difficult for future challenges. A few years ago, then-University of California President Janet Napolitano called upon the university system to study whether standardized tests are racist and contrary to diversity policies. She created a task force that seemed designed to answer those questions in the affirmative.

To the surprise of many, the task force did not find the tests to be unreliable or call for abandoning them. Instead, in its final report, it found such standardized test scores “are currently better predictors” of success than other available means, including a better predictor of success for “Underrepresented Minority Students (URMs).” Napolitano thanked the task force and promptly announced she would discontinue the use of the tests and move toward a “test-blind” system.

Whatever value a test-blind system may have academically, it could be impactful legally. It is difficult to find an unconstitutional reliance on race if there are few objective measures to compare groups of students. Eliminating the main objective measure (beyond GPA scores) makes the system more subjective.

That is precisely the basis for the objection to the Harvard admissions process, which applied an amorphous, subjective criterion for “scoring” students.

Forty-four years have brought many changes, while other things have remained surprisingly the same: Bell-bottoms are back, James Taylor is still singing, the Chicago Bears are yet again working on a rebuild — and, yes, we are still debating race-based admissions criteria. 

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can find his updates on Twitter @JonathanTurley.