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Affirmative action case puts equality in education back before the justices

The Supreme Court has a long history of weighing in on race in pedagogy but not everyone agrees on what the court’s precedents mean for the future of education. 

WASHINGTON (CN) — At the center of an upcoming Supreme Court case that could drastically change higher education in this country is an enduring question in American democracy: What does it mean to be equal? 

Almost 70 years ago, the court made history when answering this question in relation to school segregation. In Brown v. Board of Education, the court ruled that separate but equal educational facilities for racial minorities were unequal and violated the Equal Protection Clause of the 14th Amendment. 

Brown stands for equal opportunity and fairness, and it's really this bright spot,” Michaele Turnage-Young, senior counsel at the Legal Defense Fund, said in a phone call. “It's a Supreme Court at its best. It’s the Supreme Court helping the nation live up to its loftiest ideals.” 

Decades later, this case — which has in large part shaped Americans’ understanding of the court — is being used to argue against a policy intended to further integrate universities and advance diversity interests.  

“How could it be that Brown was the case that led to the desegregation of our educational system, and now we have a petitioner coming along seeking to leverage Brown to resegregate higher education in this country,” Young asked. 

The high court on Monday will hear an appeal led by the conservative activist Edward Blum who says the only way to create an equal opportunity for students is to adopt a race-neutral approach. Students for Fair Admissions is fighting Harvard and the University of North Carolina for their use of race in admissions. To uphold the promises of Brown, the group argues that the court should strike down the use of affirmative action policies in education. 

“No one is under the illusion that we live in a postracial society, or that racial discrimination is a thing of the past,” William Consovoy, an attorney with Consovoy McCarthy representing the group, wrote in their brief. “But when elite universities place high-schoolers on racial registers and tell the world that their skin color affects what they think and know, the universities are hurting, not helping. The only realistic way ‘to stop discrimination on the basis of race is to stop discriminating on the basis of race.’ And that is what the Constitution and Title VI require.”

Students for Fair Admissions has brought a direct challenge to 2003 precedent that says race can be used in university admissions without violating the Equal Protection Clause. In Grutter v. Bollinger, the court upheld affirmative action policies at the University of Michigan Law School. Justice Sandra Day O’Connor, writing for the majority, said that admissions decisions were based on a multitude of factors, and considering race as just one facet of that decision could contribute to diversity in education. O’Connor also said that considering race in this decision did not harm nonminority applicants. 

Students for Fair Admissions claims, however, that Grutter is closer to the infamous Plessy v. Ferguson than Brown

“Because Brown is our law, Grutter cannot be,” Consovoy wrote. “Just as Brown overruled Plessy’s deviation from our ‘colorblind’ Constitution, this Court should overrule Grutter’s.” 

The group understands Brown as vindicating the promise of the 14th Amendment by rejecting any use of race in education. But their understanding of Brown and the 14th Amendment is contested. Earlier this term, Justice Ketanji Brown rejected the idea that the Constitution was colorblind. 

“The framers themselves adopted the equal protection clause, the 14th Amendment, the 15th Amendment, in a race-conscious way,” the Biden appointee said during oral arguments in a redistricting fight concerning the consideration of race. 

Civil rights groups contend that Brown actually recognized the constitutional necessity of racially integrated schools. 

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Brown applied these core principles of the Equal Protection Clause in recognizing the constitutional necessity of racially integrated education,” Janai Nelson, at the NAACP Legal Defense & Educational Fund, wrote in an amicus brief for the fund and the NAACP. “The Brown Court voiced an incontrovertible truth: racially segregated education harms and subordinates Black people and denies them equal status as full citizens.” 

Students for Fair Admissions claims that Asian-American applicants bear the cost of Harvard’s racial balancing and rejection of race-neutral alternatives, amounting to a violation of the Equal Protection Clause and therefore Title VI of the Civil Rights Act. The group also attacks UNC for rejecting race-neutral alternatives and asks the justices if the school’s insistence on using race in admissions when alternatives are available violates the Constitution and Title VI. 

The universities maintain they conduct a holistic review of applicants based on many factors, only one of which is race. Considering race in the application process allows the universities to create a more diverse learning environment, which they claim is central to civil society. UNC claims race plays a meaningful role only in 1.2% of admissions decisions, but that role is still necessary to meet the school’s academic mission. 

“On campus, diversity promotes the robust exchange of ideas, fosters innovation, and nurtures empathy and mutual respect,” Ryan Park, North Carolina Solicitor General, wrote in the university’s brief. “It also looks to the future, equipping students with the tools and experiences necessary for success in the modern world.” 

Rejecting the group’s contention that their policies should be equated with holdings in Plessy, Harvard and UNC claim Students for Fair Admissions is advancing a false narrative. Harvard argues that the Constitution protects equality but it doesn’t ignore reality. 

“Our Constitution promises ‘equal protection of the laws,’” Seth Waxman, an attorney with WilmerHale representing Harvard, wrote in the school’s brief. “It does not require us to disregard the commonsense reality that race is one among many things that shape life experiences in meaningful ways. And nothing in the text or history of the Fourteenth Amendment suggests that universities must uniquely exclude race from the multitude of factors considered in assembling a class of students best able to learn from each other.” 

Students for Fair Admissions filed suits against both universities in 2014. The group accused Harvard’s policies of discriminating against Asian American students, saying the group is less likely to be admitted to the school compared with other races. Four years after the suit was filed, Harvard’s affirmative action policies were put under heavy scrutiny during a weeklong trial, but a federal judge ruled in favor of the university, finding that its policies were permissible under Grutter. The First Circuit affirmed. 

Another district court similarly dismissed the group’s case against UNC, finding that the university’s policies complied with precedent. The justices agreed to allow the case to bypass an appeal to the circuit court and hear both universities’ cases together. The cases were then separated to allow Jackson — who has ties to Harvard — to participate. 

Race-neutral admissions policies have been tested in this country. A California law barred public universities in the state from considering race in admissions. Schools saw a 50% drop — sometimes more at more selective campuses — in minority enrollment as a result. The schools have since attempted to use race-neutral policies to increase diversity. 

“Those programs have enabled UC to make significant gains in its system-wide diversity,” the president and chancellors of the University of California told the court in an amicus brief. “Yet despite its extensive efforts, UC struggles to enroll a student body that is sufficiently racially diverse to attain the educational benefits of diversity. The shortfall is especially apparent at UC’s most selective campuses, where African American, Native American, and Latinx students are underrepresented and widely report struggling with feelings of racial isolation.” 

There are also questions about how universities would be able to conduct race-neutral admissions. For example, how would universities conduct in-person interviews or review footage of an applicant’s athletic pursuits? Would the university be able to review a student’s experience with clubs involving race like a Black Student Union? 

It was only six years ago that the court heard its last challenge to affirmative action stemming from the University of Texas. The narrow 4-3 ruling — with Justice Elena Kagan recused — held that precedent supported the university’s use of race in admissions. Justice Sonia Sotomayor is the only remaining justice on the court who voted in favor of upholding affirmative action. 

The Supreme Court first upheld the use of race in admissions in 1978 in Regents of the University of California v. Bakke. This case also established that racial quotas were unconstitutional. The court waited 25 years to revisit the issue in Grutter and then another decade until the first Fisher v. University of Texas. The Texas case came to the justices twice where they first decided the standard used in evaluating the use of race in admissions and again to evaluate the university’s policies. 

If the court were to deviate from 44 years of precedent to end affirmative action after affirming it only six years ago, court watchers worry it could contribute to the growing trend of upending precedent just because the justices have the votes, not because that’s what the law demands. 

“It's only six years later and here we are again,” Frederick Lawrence, a distinguished lecturer at Georgetown Law, said in a phone interview. “That sounds like a pretty quick reevaluation of the doctrine, and the best argument is the composition of the court has changed.” 

If the court were to overturn Grutter for no other reason than having the votes to do so, court watchers say it would be more evidence of the court’s waning legitimacy. Beyond the court’s deference to precedent, experts also say a ruling against equality in education could be another blow to the court’s standing. 

“If the court is doing something that seems to ignore the lack of equal opportunity, that seems to calcify the ways that privilege is reproduced, if we're turning our selective colleges and universities into vessels for the mere reproduction of privilege, what does that say about the legitimacy of our institutions in our country,” Young said.

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