Since the 1960s, race-based affirmative actions have been an imperfect but important part of generating diverse college courses. Executive Order 10925, issued by President Kennedy on January 1, 1961, mandated affirmative measures to be taken in order to ensure that diverse applicants were employed without regard to their race. In the 1960s, universities adopted the spirit of the order to combat racism and segregation by utilizing race.
The Supreme Court has generally supported explicit racial emphasis to increase minority participation in historically white colleges. Grutter v. Bollinger in 2003 upheld this standard, which stated that a holistic, non-mechanical admissions process can include race. This legal framework has been overturned in recent landmark 2023 decisions of Students for Fair Admissions V. University of North Carolina, and Students for Fair Admissions V. President and Fellows of Harvard College. The majority of the judges in these cases ruled that using race to determine university admissions was unconstitutional.
Stanford Law Professors Easha Aand, Richard Ford and Michael McConnell will discuss the impact of recent college admissions decisions in the United States on June 30, 2023. The Stanford Center for Racial Justice, Stanford Constitutional Law Center, and Professor Ralph Richard Banks moderated the event. You can view a recording of the discussion here.
Anand began the discussion by addressing the majority opinion of Chief Justice John Roberts. Anand described the narrative of Roberts opinion as fighting the “inherent foolishness of trying to derive equal from inequality”. Chief Justice Roberts portrayed affirmative action in a similar way as Jim Crow-style racism, which was stopped by Brown v. Board of Education. Roberts was of the opinion that “eliminating racism means eliminating it all.” He outlined three reasons to overturn affirmative action admissions programs in question.
First, Justice Roberts did not believe that educational benefits from diversity could be quantified and argued that affirmative action used by a school failed to demonstrate a compelling interest of the government. Roberts also believed that race could not be used to “stereotype” or as a negative, and the zero sum game of college admissions made a preference given to one applicant a disadvantage for other applicants. The Chief Justice concluded that affirmative action was ineffective because there is no end in sight to its implementation.
Discussion then turned to the way Justices Clarence Thomas and Neil Gorsuch provided complementary concurrences with Justice Roberts reasoning. Professor Ford explained that Justice Gorsuch had completed a textual study of Title VI of Civil Rights Act of 1965, which covers federally funded programs and activities, in order to explore a second argument against affirmative action. Title VI has traditionally been seen as a way to extend the Equal Protection Clause’s analysis to private institutions. Justice Gorsuch, however, analyzed the text of the statute in order to reach his conclusion that affirmative actions should be prohibited under Title VI. This was a second independent basis on which the Court’s ruling could be based. Justice Gorsuch’s argument was that Title VI prohibits affirmative action based on racial preferences.
Professor McConnell explained that Justice Thomas added historical context to Chief Justice’s view. Justice Thomas explained in his opinion the colorblind intention and history behind the 1866 Civil Rights Act, and the 14th Amendment. Both were created to outlaw all forms of racism and to promote a colorblind system of law. Affirmative action is discriminatory based on race and should be banned under the historical intent of the 1866 Civil Rights Act.
The opinions above are in stark contrast to the dissenting views. Professor Anand summarized three important points in Justice Sonia Sotomayor’s dissent. Sotomayor said that the government’s compelling interest in student body diversity is the same interest that was upheld by the court in 2003. Further, “college admittances were no more zero-sum in the past 20 or 50 than they are today.”
Chief Justice Roberts stated that although affirmative action based on race is no longer valid, it’s effects and importance can still be taken into account in a personal declaration. Professor Anand, however, outlined three main reasons for why this “cold assurance” would lead to problems in the long run. The ruling eliminates the admissions officers’ ability to correct overrepresentation by comparing applicants. The distinction between giving special consideration based on race (prohibited), and considering an applicant’s hardships that intersect with race, is “razor-thin”.
The attorneys for Students for Fair Admissions stated that if affirmative action was hypothetically tailored to descendants of slaves, it would still be an unpermissible proxy for racism. Professor Banks argued that social creations of race can also be interpreted as a proxy of being a descendant from slaves, and the race-based disadvantages associated with it. Professor McConnell, given the Court’s ambiguous position, characterized a hypothetical case such as this as “potentially easier to defend”, because it clearly defined the beneficiaries of affirmative actions relative to the previous system. As the closest historical comparison, The Freedmen’s Bureau has been cited.
The panelists, encouraged by the enthusiasm of the Law School community and Stanford as a whole who attended the discussion, concluded by highlighting their main takeaways. In her reflections on the dissenting views, Professor Anand highlighted the possibility of using historical remedy as a stable justification for affirmative action programs based on race. She expressed hope that further exploration of other justifications would continue. Professor McConnell, in response to universities’ commitments to diversity and inclusion, urged these institutions to evaluate more deeply the dimensions of diversity they intend to take into consideration when making admissions decisions, including religion and ideology. Professor Ford’s closing remarks expanded the discussion beyond the policy debate and identified the historical idea of integration as an effective way to understand the motivations for affirmative action. He encouraged us not to limit ourselves to the Supreme Court’s understanding of race justice, like the diversity rationale. Instead he asked that we “not limit our ideas of what is possible” and “hold on to this broader sense of the possibilities and necessity for racial injustice .”
Although there is still uncertainty as we enter a post affirmative action world, policy lessons gained from the state that have already banned affirmative actions provide a preview of its immediate impact on the country and the effectiveness of colorblind policies. The example of the University of California System offers a unique and interesting perspective, especially in light of the many initiatives that the system has implemented since 1996 when Proposition 209 was passed. It has recently removed the ACT/SAT test requirements and changed the order of application review. Some campuses, like UC Berkeley, have increased their outreach program to target students and families with little or no college experience.
The University of California has also pioneered a program called Eligibility in Local Context, which guarantees that the top 9 percent of the graduating classes of California public high schools will be UC-eligible. Diverse approaches are pursued because there is no panacea for achieving student diversity. Despite the multi-pronged strategy, the underrepresented minorities on select campuses such as Berkeley still haven’t recovered to their pre-1996 levels of representation. Berkeley’s ongoing brainstorming for solutions to a decades-old problem is a good example of how an unlimited imagination, intentional experiments, and adherence to self-evaluation are necessary.