Supreme Court just added affirmative action to its list of conservative unfinished business

Last year, I wrote about the Supreme Court’s “train whistle” docket with cases on abortion, guns, immigration, and other issues barreling down the track. Well, that whistle just got a lot louder.

This week, the court accepted two cases challenging racial preferences in college admissions. As with abortion and guns, a majority appears to have formed to bring clarity to an area long mired in ambiguity. For critics, universities have used that ambiguity to evade limits in the use of race in admissions. If the conservative majority has been waiting for the most impactful cases and time to move, it clearly found them in Students for Fair Admissions v. President & Fellows of Harvard and Students for Fair Admissions v. University of North Carolina.

The last time the court dealt with the issue of race in admissions was 2016 in Fisher v. University of Texas. The court upheld the use of race in the admissions process of the University of Texas at Austin by a vote of 4-3. After the decision, the late Justice Ruth Bader Ginsburg noted that, if Justice Elena Kagan had not recused herself, it would have been 5-3 and “that’s about as solid as you can get.” At the time, she said that she doubted “that we’re going to see another affirmative action case … at least in education.”

Ginsburg’s comment notably omitted two additional facts. First, if Justice Antonin Scalia had not died shortly before the release of the opinion, the vote would have been 4-4 (and 5-4 with Kagan). Second, courts change. While she was right about not seeing another such case during her time on the court, this is now a very different court with two of the Fisher majority no longer among its members.

There is now a 6-3 conservative majority on the court, and Chief Justice John Roberts, Clarence Thomas, and Samuel Alito previously voted against the University of Texas. To quote Ginsburg, with three justices previously voting against such race-based criteria and the three Trump appointees, “that’s about as solid as you can get” for a major reframing of the controlling case law.

The court has spent decades issuing often conflicting and vague 5-4 rulings on the use of race in admissions. In 2003 in Grutter v. Bollinger, the Court divided 5-4 on upholding admissions criteria used to achieve “diversity” in a class at Michigan Law School. However, in her opinion with the majority, Justice Sandra Day O’Connor stated that she “expects that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.” That was almost 20 years ago.

In their Fisher dissent, the conservative justices noted that the university was being “less than candid” in addressing its use of race in admissions. They objected to the mantra of achieving a “critical mass” in a class without a clear definition or standards. For critics, that is an understatement. For decades, universities have evaded the impact of court decisions limiting the use of race by avoiding mathematical or threshold criteria that could be challenged. Grutter’s “diversity” rationale used race as one of a number of factors.

The two new cases could not be better suited for a major reframing of the law governing college admissions. The North Carolina case presents the prior question of the use of race to give a preference to Black, Hispanic and Native American applicants to the disadvantage of white and Asian students.

The Harvard case has a novel twist: The university is accused of discriminating against one minority group (Asians) in favor of other minority groups. It allegedly did so through a system that critics believe was little more than a subterfuge for racial discrimination, allowing staff to apply a subjective standard to gauge traits like likability, courage and kindness to lower the ranking of Asian students. It is the type of evasive practice that critics have complained about for years at schools intent upon continuing affirmative action in admission — a practice that was rejected in University of California v. Bakke in 1978.

Since that decision, the Supreme Court itself has become the focus of the controversial use of race in admissions. President Joe Biden has pledged to consider only Black females for the next vacancy, the type of quota system rejected by the court itself for school admissions.

Both the Harvard and North Carolina at Chapel Hill admissions criteria were upheld by lower courts. That was despite the acknowledgement of U.S. District Judge Allison Burroughs in the Harvard case that the criteria clearly disfavored Asian American applicants who “would likely be admitted at a higher rate than white applicants if admissions decisions were made based solely on academic and extracurricular ratings.”

In the North Carolina case, the challengers maintain that the data shows that an Asian American male in-state applicant with a 25 percent chance of admission to UNC would have a 67 percent chance if he were Hispanic and a 90 percent chance if he were an African American. For an Asian American male from out of state with a 25 percent chance of admission, the odds of admissions for an African American with the same scores would be 99 percent, according to their briefs.

If the court accepts this claimed disparity, it could use the case to show that the diversity rationale has been little more than a rationalization for racial discrimination.

With the court possibly moving against race-conscious admissions, universities are already discussing how to continue to seek diversity goals. Just as President Biden and some states are already moving on to “Plan B” for abortion rights in anticipation of a major ruling this year, schools appear to be adopting their own “Plan B.” The universities in the California system and other schools are moving to drop standardized testing in admissions, a move that will make it even more difficult to challenge race as a criteria without such test rankings.

The current docket reads like a list of “unfinished business” for the conservative majority. On abortion, the Court seems ready to ditch the pre-viability standard and perhaps Roe v. Wade itself. On gun rights, the conservative justices also noted a lack of candor in states evading prior limits and appears ready to bring clarity in its upcoming ruling.

As with the gun case, the majority may seek to impose a bright-line rule to address such “less than candid” practices in college admissions. Ironically, while Justice O’Connor was much maligned for her prediction in Fisher that the use of racial preferences in college admissions would not last beyond 25 years, she may have been five years too conservative.

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