Monstrous arrogance

The monstrous arrogance of the Supreme Court’s affirmative action decision

What America will lose, now that affirmative action is effectively gone.

By Ian Millhiser

The Supreme Court’s much-anticipated affirmative action decision Thursday does not explicitly overrule the Court’s previous decisions permitting race-conscious university admissions, but it will almost certainly have the same effect as a total ban.

And that will “impair the military’s ability to maintain diverse leadership, and thereby seriously undermine its institutional legitimacy and operational effectiveness.”

Those are not my words. That’s the view that a long list of former generals, admirals, and other senior national security officials laid out in a brief they filed when the case, Students for Fair Admissions v. President and Fellows of Harvard College, was being considered. That brief urged the justices not to end affirmative action in university admissions. And they are hardly the only ones to offer such a warning.

Despite those warnings, six justices decided Thursday to effectively end race-conscious university admissions in a pair of cases considering Harvard and the University of North Carolina’s affirmative action programs.

The Court’s decision is somewhat confusing, because it purports to simply apply past decisions that permitted some affirmative action programs, rather than explicitly overruling them. But the practical effect of the Harvard decision is that it bans the very kind of affirmative action that the Court has endorsed in the past.

Chief Justice John Roberts’s opinion for the Court’s six Republican appointees faults the two universities for having affirmative action programs that “lack sufficiently focused and measurable objectives warranting the use of race.” But there’s an obvious reason why they do not. The Court’s previous decisions permitted some limited forms of affirmative action, but they explicitly ban racial quotas and other mathematical formulas that could allow universities to determine whether they are achieving “focused and measurable objectives warranting the use of race.”

The Harvard case, in other words, is rooted in a Catch-22. Universities may neither have mathematically precise programs that violate the Court’s earlier decisions, nor may they have the more vaguely defined programs that the Court prohibits in its newest decision.

I wish that the Court had shown more humility instead.

That’s because the military leaders’ views are shared by an equally long list of America’s largest employers — a list that includes companies as diverse as Apple, Levi Strauss, Northrop Grumman, Starbucks, and United Airlines — all of whom warn that American business will be less dominant because of the Supreme Court’s decision in Students for Fair Admissions.

To appeal to diverse markets, the business brief argues, major employers need “university admissions programs that lead to graduates educated in racially and ethnically diverse environments.” “Only in this way,” their brief emphasizes, “can America produce a pipeline of highly qualified future workers and business leaders prepared to meet the needs of the modern economy and workforce.”

And then there’s the medical profession’s brief. This brief, filed on behalf of a wide range of medical organizations including the American Medical Association itself, argues that “an overwhelming body of scientific research compiled over decades confirms” that “diversity literally saves lives by ensuring that the Nation’s increasingly diverse population will be served by healthcare professionals competent to meet its needs.”

Because of the Supreme Court’s decision in Harvard, the medical profession warned the justices, more people will die who otherwise would have lived.

The Supreme Court, or rather the six justices appointed by Republican presidents, decided on Thursday to ignore the combined wisdom of many of the military’s seniormost former leaders, the shared wisdom of dozens of America’s greatest businesses, and the combined insights of the medical profession — not to mention the views of two of America’s greatest universities, both of which believed that students who are educated on more diverse campuses receive an inherently superior education that better prepares them for careers in business, medicine, the military, or elsewhere.

Policymakers of all kinds have struggled since the Civil War with how to implement the 14th Amendment’s promise that no one shall be denied “the equal protection of the laws.” And, while it is certainly the job of the Supreme Court to interpret the Constitution, past justices have historically tempered their personal views about how to read constitutional safeguards against race discrimination with the expertise of senior military leaders, business titans, university officials, and others who’ve studied the benefits of racial diversity far more closely than a judge ever could.

And yet today, six lawyers with little specialized expertise in business, education administration, national defense, or medicine, declared that they have found the answer to America’s longstanding questions about race and diversity — and that they know more than individuals and institutions with far greater expertise than someone who spends their days reading documents in a marble palace could ever have.

The Court’s decision is rooted in a Catch-22

To understand why the Harvard decision is likely to eviscerate affirmative action in universities across the country, it’s helpful to understand how the Court treated affirmative action in the past.

Early affirmative action programs, such as the one the Court invalidated in Regents of the University of California v. Bakke (1978), often used explicit racial quotas to increase the number of nonwhite students on campus. Bakke, for example, struck down a medical school admissions program that set aside 16 of the 100 seats in the incoming class for racially “disadvantaged” students.

But the Court believed that these sorts of quotas are unlawful, with Justice Lewis Powell faulting such a quota system because “white applicants could compete only for 84 seats in the entering class, rather than the 100 open to minority applicants.” While Bakke permits race to be a vague “plus” factor that can give an applicant of color an edge over a similarly qualified white applicant, Bakke ruled that every seat at a school must, at least in theory, be open to a white person.

The Court expanded on this holding in Gratz v. Bollinger (2003), which struck down an admissions program that awarded applicants “in an underrepresented racial or ethnic minority group” 20 points on a 150-point scale that the University of Michigan used to select its incoming freshman class. The Court forbade this kind of mathematically precise method of lifting up applicants of color, ruling that affirmative action programs must involve a vaguer process that provides more “individualized consideration” of whether each applicant to a university should be admitted.

On the same day that the Court decided Gratz, however, it also handed down a decision in Grutter v. Bollinger (2003), which upheld the affirmative action program at the University of Michigan’s law school. Unlike the points system invalidated in Gratz, the law school engaged in “a highly individualized, holistic review of each applicant’s file, giving serious consideration to all the ways an applicant might contribute to a diverse educational environment.”

This meant that, when trying to decide between two well-qualified applicants, Michigan’s law school would sometimes use race as a kind of tie-breaker if one of the applicants would add greater racial diversity to the campus. But the law school also gave such a boost to students who “have lived or traveled widely abroad, are fluent in several languages, have overcome personal adversity and family hardship, have exceptional records of extensive community service, and have had successful careers in other fields.”

One thing that should be clear from decisions like Bakke and Grutter is that the only kind of affirmative action programs that are allowed are ones that operate somewhat ambiguously, and that often have vaguely defined goals. Precisely defined advantages for applicants of color, the kind that would allow universities to mathematically measure their progress towards a preset diversity goal, are forbidden.

But Roberts writes in Harvard that Harvard and UNC’s admissions programs, which are modeled after the kind of ambiguous programs endorsed by Grutter and Bakke, “lack sufficiently focused and measurable objectives warranting the use of race.” He also faults the schools for saying that their affirmative action programs will achieve goals such as “training future leaders in the public and private sectors” or “enhancing appreciation, respect, and empathy, cross-racial understanding, and breaking down stereotypes.”

These sorts of goals, he writes, cannot justify an affirmative action program because “it is unclear how courts are supposed to measure any of these goals.” How, for example, “is a court to know whether leaders have been adequately ‘train[ed]?’”

Of course, it’s entirely possible to design affirmative action programs that do have clear and measurable goals. Harvard could have determined, for example, that its goal is to ensure that 15 percent of every graduating class is Black.

But such a clearly measurable goal — the kind that Roberts demands in his Harvard opinion — would violate Bakke.

What this decision means for universities moving forward

The Court’s decision doesn’t simply prohibit the one kind of affirmative action program that the justices have historically allowed; it also raises a cloud of uncertainty over how, exactly, universities are supposed to run their admissions programs without being sued.

Roberts writes, for example, that a university may consider “an applicant’s discussion of how race affected his or her life, be it through discrimination, inspiration, or otherwise,” when deciding whom to admit. But, in the very next line of his opinion, he writes that “universities may not simply establish through application essays or other means the regime we hold unlawful today.”

This appears to be an attempt to cut off a scenario where a university admits Black or Latino students in order to increase diversity on campus, then justifies those admissions decisions by pointing to applicant essays where the student wrote beautifully about their experience growing up as a person of color.

But, as Justice Amy Coney Barrett warned at oral argument in the Harvard case, it is “slicing the salami very finely” to say that a university cannot give a slight preference to a student who checks a box on their application identifying themselves as Latino, but that the university can give a preference to the same student if they write an essay expressing pride in their Mexican American culture.

Roberts’s opinion potentially subjects universities to lawsuits they cannot realistically defend against. How is a university that does admit a Mexican American student on the strength of such an essay supposed to prove in court that it did so because of the student’s eloquence, and not because of their race?

Similarly, conservative litigants are already challenging programs such as former Texas Gov. George W. Bush’s “top 10 percent” plan, which seeks to integrate universities by admitting the top graduates of racially segregated public schools. It is unclear whether this Court will uphold such programs, which historically have been celebrated by Republicans.

The bottom line, in other words, is that many universities will have to change their admissions programs to remove their current race-conscious policies. And even when they do, there will likely be many more lawsuits challenging university admissions programs in this very conservative Court.

Affirmative action survived as long as it did because of conservatives who understood the value of humility

The best way to understand the Harvard decision is as the product of a Court that is extremely confident in its own policy judgments, certain about the righteousness of conservative values, and increasingly willing to impose its views on the nation.

But it wasn’t always this way. Past justices, even some who held very conservative views on race, understood that institutions other than the Supreme Court may have greater insight into how to answer the difficult questions presented by affirmative action programs, such as: When it is acceptable to draw racial distinctions if doing so will benefit society as whole?

Take Lewis Powell: He was a preeminent lawyer in Richmond, Virginia — the onetime capital of the Confederacy — before he joined the Supreme Court in 1972. He was also one of the central figures in Richmond’s response to the Court’s school desegregation decision in Brown v. Board of Education (1954), as he chaired the city’s school board when that decision was handed down.

Powell’s response to Brown was relatively moderate — for a wealthy white Southern man living in the Confederate capital in the 1950s. He said he “disagreed completely with the massive resistance policy” because he “thought it would destroy the public schools.” But he also pushed for a kind of token integrationism that seemed designed more to prevent federal court intervention than to actually achieve integration.

As law professor Anders Walker described Powell’s response to Brown, by the time the future justice stepped down as school board chair in 1960, “he had helped steer Richmond away from massive resistance, rewritten local policy to comply with the Supreme Court, and preserved segregation virtually intact: only 2 of 23,000 black children in Richmond attending school with whites.”

So, when the Supreme Court took up its first challenge to affirmative action in Bakke, Powell might have seemed like an unlikely ally of universities hoping to diversify their campuses. Yet, while Powell’s opinion in Bakke did place strict limits on such universities, he hesitated before striking down affirmative action altogether.

“It is the business of a university to provide that atmosphere which is most conducive to speculation, experiment and creation,” Powell wrote in Bakke, quoting from a 1957 opinion. And his opinion ultimately concluded that universities “must be accorded the right to select those students who will contribute the most to the ‘robust exchange of ideas.’”

Powell, in other words, recognized that institutions that are specifically in the business of building student bodies where every student can learn from each others’ experiences, and where this kind of diversity would foster a more “robust exchange of ideas,” probably have greater expertise on how to achieve this goal than a panel of nine lawyers in black robes. And so he chose humility over his personal, very conservative views on race.

The courts, Powell concluded, must allow a university some amount of leeway “to determine for itself on academic grounds who may teach, what may be taught, how it shall be taught, and who may be admitted to study.’”

This deference to expert institutions was more explicit in Justice Sandra Day O’Connor’s opinion in Grutter, which reaffirmed Powell’s conclusion that universities may take some limited account of race when deciding who to admit. The Court’s decision in Grutter, O’Connor wrote, “is in keeping with our tradition of giving a degree of deference to a university’s academic decisions, within constitutionally prescribed limits.”

Like Powell, O’Connor was an unlikely champion for even a limited form of affirmative action. A Reagan appointee to the Supreme Court, O’Connor was a longtime Republican who served as state Senate majority leader in Barry Goldwater’s Arizona.

But her opinion in Grutter, even more than Powell’s opinion in Bakke, emphasized that judges should be very cautious about second-guessing institutions with considerably more expertise than a lawyer with a fancy job.

But Roberts compares this kind of judicial humility to “abandonment or abdication of judicial review.” And his biggest break with O’Connor is that he deems all racial classifications of any kind to be equally harmful. “Eliminating racial discrimination means eliminating all of it,” he writes at one point in his opinion — after writing several pages where he analogizes affirmative action to the kind of public school segregation that was struck down in Brown. Indeed, Roberts roots his opinion in Brown’s foundational moral conclusion: “Separate cannot be equal.”

But affirmative action is the opposite of segregation. The entire point of Harvard and UNC’s admissions programs is that they want white students to attend class alongside students of all races, and that they believed that some degree of affirmative action was necessary to achieve this goal.

Meanwhile, a long list of American leaders shared their view that more diverse campuses benefit society as a whole in a way that racial segregation never can. Generals and admirals warned that less diverse campuses mean a less secure nation. Medical experts warned that the conclusion Roberts reached in Harvard will lead to unnecessary deaths.

Perhaps it will turn out that the six Republican lawyers behind this Harvard decision are correct.

But the Supreme Court is taking one hell of a gamble by assuming that it knows better than leaders and institutions with considerably more knowledge and expertise than any of the justices themselves. I wish the six justices in the Harvard majority had at least considered the possibility that they might be wrong, and that justices like Powell and O’Connor were wise to listen to people who knew more than they did.