SLS faculty analyze Supreme Court decision to strike affirmative action

July 18, 2023, 9:08 p.m.

Stanford Law professors held a panel to discuss the history of the affirmative action process and emphasized the need for a comprehensive approach that goes beyond race-based affirmative action to ensure equal opportunities and a richly diverse educational experience for all students.

“This ruling, although not unexpected, has attracted extraordinary attention, hence this panel,” said Ralph Richard Banks, who is the Jackson Eli Reynolds Professor of Law and Stanford Center for Racial Justice faculty director.

Banks, who moderated the panel, also noted that all speakers were sharing from “personal individual capacities” and not “on behalf of Stanford Law School.”

The Supreme Court case, Students for Fair Admissions, INC. v. President and Fellows of Harvard College, was brought on by petitioners Students for Fair Admissions, who filed separate lawsuits against Harvard and the University of North Carolina. They argued that the school’s race-conscious admissions programs violated Title VI of the Civil Rights Act of 1964 and the Equal Protection Clause of the Fourteenth Amendment, respectively. 

The court ruled that Harvard and UNC’s use of affirmative action failed to pass strict scrutiny — a form of judicial review first imposed by the Court in 1978 that permitted race-based classification or discrimination only if a compelling government interest could be shown. Affirmative action policies also had to be narrowly tailored, or precisely written to fulfill only its intended goals without being broader than necessary.

Historical analysis

Panelists began the event by summarizing the Supreme Court case and diving into key historical court decisions concerning affirmative action, beginning with Regents of the University of California v. Bakke in 1978. 

In that case, Allan P. Bakke, an engineer and former Marine officer, challenged the Medical School of the University of California, Davis’s affirmative action admissions process for its quota of students from disadvantaged racial groups. 

The Supreme Court voted to strike down the quota program, with Justice Lewis F. Powell Jr. ruling that race-based affirmative action should be permissible “if it is in the pursuit of the educational benefits of diversity and if the program is structured properly,” setting the precedent of applying the strict scrutiny test to affirmative action

“By ‘structured properly,’ [Justice Powell] meant in short, that [affirmative action] doesn’t rely on a quota and doesn’t operate mechanically,” Banks said. “And that it does employ the sort of holistic consideration of individual applicants that we are all accustomed to, if not from our own college experience, from those of our children.”

Justice Powell’s “holistic” idea was reaffirmed in the 2003 Supreme Court case Grutter v. Bollinger, which upheld diversity standards in the law school admissions process at the University of Michigan. However, the court also struck down the university’s undergraduate admissions program because it operated mechanically — the admissions committee used a 150-point scale to rank applicants, with 100 points needed to guarantee admissions, but bonus points were given to applicants from select racial minority groups.

“Voting to strike down the undergraduate program and voting to uphold the law school program in 2003 has provided the basis or the framework to which universities have looked to craft admissions policies,” Banks said. 

Anand explained that in the June 29 majority opinion, Chief Justice John Roberts detailed three reasons for why Harvard’s and UNC’s admissions programs fail. First, he noted that there wasn’t a specific way to measure the compelling interest in the educational benefits of diversity. He also argued that because college admissions are zero-sum — meaning that if one applicant is accepted, another is not — race was used as a negative factor since it may have been the reason that some applicants were rejected while others were accepted. 

Finally, Roberts argued that the original affirmative action doctrine made it clear that there must be an endpoint to affirmative action. In Grutter v. Bollinger, the Court noted that affirmative action should have a “time limit” and they “expect[ed] that 25 years from now, the use of racial preferences will no longer be necessary.”

Therefore, Roberts argued that the “time limit” has been reached and affirmative action must come to a “logical endpoint.” However, both Harvard and UNC believe that race-based admissions will still be a necessity for years to come.

This court has always said that affirmative action is a time-limited thing, that at some point will sunset, and so it wouldn’t have made sense to have these sorts of reliance interests on our past precedent,” Anand said. “You can’t come here in good faith, Harvard, and say we thought we were going to be able to do this forever.”

Impacts of the Supreme Court decision

Looking forward to the changing college admissions landscape, Ford stated that there have been no clear explanations provided about how a post-race-conscious admissions process will look like. 

McConnell suggested that to continue creating diverse classes, universities can turn to utilizing high schools’ overall performance as a benchmark to compare the individual performances of applicants from that school. He added that students who excel in severely underperforming public schools should get a “significant boost.” 

“And what that does is, it makes the boost — the affirmative action — actually related to a deprivation that’s closely related to discrimination,” McConnell said. “The fact that they excel in that environment relates it to their own individual characteristics.”

McConnell also noted that he believes universities should focus more on other aspects of diversity, rather than just race. He suggested that there should be less emphasis on essays because many applicants tend to write about their race and because “wealthy people hire consultants to help their kids write the most effective essays.”

“Universities would have a lot more credibility when they talk about diversity if they actually cared about diversity,” McConnell said. “I’m talking now about especially philosophical, ideological, religious diversity, and it’s really remarkable how homogeneous elite universities are in those dimensions.”

Echoing McConnell, Anand emphasized the need to move beyond the narrow definitions of the use of diversity. She also noted that the dissenting Justices were “laying the groundwork for a different kind of justification for affirmative action” that revolved around “remedying past discrimination.”  

“Yes, we should be thinking about what the consequences are going to be for diversity in the classroom,” Anand said. However, she encouraged schools to not let this ruling stop them from “thinking about other ways to justify race-based affirmative action.”

Ford continued that affirmative action was originally created to be used as an integration model to bring different cultures together at the educational level. He noted that the use of diversity by college admissions offices will have to change to encompass forms of diversity outside of race.

“I hope that we hang on to that broader sense of the possibilities and the necessity of racial justice,” Ford said. “Not simply fall back as we did in the context of diversity, for instance, on whatever the Supreme Court says, to kind of limit our notions of what’s possible and our notions of social justice.”

A previous version of this article did not introduce Ralph Richard Banks. The Daily regrets this error.

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