SCOTUS Term Preview, Part I: Affirmative Action On Life Support

The following is the first in a multi-part series on the Supreme Court term that begins this Monday.

Few things are certain in Supreme Court litigation, but it’s unlikely that anyone will make any money betting that the University of Texas at Austin’s racially conscious admission’s policy with survive the current Supreme Court term. Most of the Court’s conservatives view racial justice issues as almost cartoonishly simple — four justices joined Chief Justice Roberts’ proclamation that “the way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” And while Justice Kennedy’s rhetoric displays more nuance that his fellow conservatives, he’s rarely found a race conscious law he is not eager to strike down. He voted with the dissent in Grutter v. Bollinger, the last university admissions case to reach the high Court.

As one of the lower court judges that upheld Texas’ plan explained, “it would be difficult for UT to construct an admissions policy that more closely resembles the policy approved by the Supreme Court in Grutter,” absent the fact that the University of Texas also automatically grants admission to Texas high school students in the top ten percent of their class. Kennedy was the fourth vote to strike the affirmative action plan in Grutter. With the addition of Justice Alito to the Court’s conservative bloc, he is likely now the fifth vote to strike the very similar plan in Fisher v. University of Texas at Austin.

Racial classifications are indeed treated as suspect under our Constitution, and for good reason. Race rarely impacts a person’s ability to contribute to society, and so laws which draw racial lines can almost always be assumed to rely on outdated prejudices rather than on sound policy justifications. A student’s race rarely says much about their ability to thrive at a selective university.


At the same time, university admissions officers routinely must choose between two students because of a distinction that says little about either student’s intelligence, drive, or worth as a person. A university may prefer a student who plays the bassoon over an equally skilled French horn player, because the college orchestra’s bassoon player is graduating and someone needs to be admitted to replace them. Similarly, an admissions office might admit one student who plays running back, and deny admission to a defensive lineman with otherwise identical credentials because the football team needs someone to play one position and not the other. The entire university is enriched when it has a full orchestra or a winning football team, and so a good admissions team will sometimes draw a line between two equally deserving students for the benefit of the school community as a whole.

The central insight of Grutter is that racial diversity functions much like an orchestra. Affirmative action is not a zero sum game that takes in equal proportion from a white student in order to give to a minority. Rather, America as a whole benefits from a more diverse student body:

[T]he Law School’s admissions policy promotes “cross-racial understanding,” helps to break down racial stereotypes, and “enables [students] to better understand persons of different races.” These benefits are “important and laudable,” because “classroom discussion is livelier, more spirited, and simply more enlightening and interesting” when the students have “the greatest possible variety of backgrounds.” . . .

These benefits are not theoretical but real, as major American businesses have made clear that the skills needed in today’s increasingly global marketplace can only be developed through exposure to widely diverse people, cultures, ideas, and viewpoints. What is more, high-ranking retired officers and civilian leaders of the United States military assert that, “[b]ased on [their] decades of experience,” a “highly qualified, racially diverse officer corps … is essential to the military’s ability to fulfill its principle mission to provide national security.” . . . At present, “the military cannot achieve an officer corps that is both highly qualified and racially diverse unless the service academies and the ROTC used limited race-conscious recruiting and admissions policies.”

So the choice facing the justices is not whether the value of improving one black student’s prospects is worth reducing those of a white student. The choice facing them is whether the quality of education offered to all students should be diminished, whether our young graduates should be less competitive in the work force, and whether our military should lose what it believes to be an essential tool to train the best possible corps of leaders as officers.

If their past opinions are any guide, it is likely that five justices are prepared to pay this price.