ANALYSIS: Experts weigh in on Supreme Court affirmative action case
Experts spoke to the News about how the Supreme Court’s decision in the Harvard and University of North Carolina affirmative action case may play out and what a post-affirmative action Yale could look like.
Affirmative action, and its future at American universities, hangs in the balance as the United States Supreme Court considers a challenge to the policy.
The “Trump Court,” — as constitutional law scholar Charles Fried described the currently heavily conservative Supreme Court — may soon rule that race-conscious college admissions is unconstitutional. But it remains unclear how colleges will navigate a post-affirmative action quagmire and whether they will find other mechanisms of maintaining racial diversity.
“As we are unlikely to have a decision for months, and we don’t know what the decision will be, it would not be helpful for me to speculate,” Dean of Admissions and Financial Aid Jeremiah Quinlan wrote in an email to the News. “What I can say is that Yale remains deeply committed to assembling a diverse student body.”
Students for Fair Admissions, an anti-affirmative action organization founded by Edward Blum, sued Harvard University and the University of North Carolina at Chapel Hill in 2014 for allegedly discriminating against Asian American and white students in admissions — though legal experts agree that the complaint actually seeks to overturn precedent that allows for affirmative action in college admissions.
In January, the Supreme Court agreed to take up the two cases together and re-examine the practice’s legality.
Lower courts ruled in favor of Harvard and UNC in 2019 and 2021, respectively, concluding that the universities considered race without maintaining racial quotas, which is legal under the 1978 Regents of the University of California v. Bakke Supreme Court decision.
The Bakke case initiated over four decades of precedent supporting race-based affirmative action. Affirmative action was most recently tested in the Supreme Court in Fisher v. University of Texas in 2016 — another Blum attempt to challenge the practice’s constitutionality.
But the court has changed dramatically since 2016, when Ruth Bader Ginsburg, Antonin Scalia and Anthony Kennedy still sat on the bench. Conservative Trump appointees Neil Gorsuch, Brett Kavanaugh ’87 LAW ’90 and Amy Coney Barrett now compose a third of the nation’s highest court.
“There’s a real possibility that the now conservative majority will throw out prior rulings and basically say that affirmative action is a violation,” Daniel Rubinfeld, professor emeritus of law and economics at the University of California, Berkeley, told the News.
Linda Greenhouse, a clinical lecturer and senior research scholar at Yale Law School and former New York Times Supreme Court reporter, agreed that it is “extremely unlikely” that the court sides with the universities and upholds affirmative action. As evidence, she pointed to the fact that the Supreme Court chose to hear this case despite the findings of lower courts in favor of the universities. In her view, the only reason the court would choose to hear the appeal is if a majority of justices “want to change current law.”
Although Tali Farhadian Weinstein ’97 LAW ’03, a former federal prosecutor and candidate for New York County District Attorney for Manhattan, would not speculate on the likely outcome of the decision, she suggested that the court has a range of possible decisions before it.
The possible judgements range “all the way from the court saying that any race-conscious admissions violate the Equal Protection Clause … to just upholding the lower court decisions and affirming them,” she explained.
She added that there is a possibility that the court might go so far as to revisit the “bedrock assumption” that diversity is a compelling state interest that justifies these admissions programs.
Charles Fried, who has taught constitutional law at Harvard Law School for over 60 years, was pessimistic about the prospects for affirmative action before the court.
“I am not very optimistic about the chances of the defendants … coming out of this very well,” Fried told the News. “And that’s because the Court, in a number of ways, has signaled that it has completely lost patience with the Bakke [ruling].”
Fried pointed to recent court rulings, specifically the decision to uphold an Alabama congressional map which dissenting Justices said diluted the votes of Alabama’s Black residents, as evidence for the court’s increased hostility towards race-conscious policies.
University Provost Scott Strobel, however, was not willing to assume that the court would overturn affirmative action, pointing to 40 years of precedent. Regardless of the outcome of the case, Strobel echoed Quinlan’s commitment to creating a diverse student body.
“Yale is, in a constitutional way, following guidelines for being able to bring diversity to its student body, and we will continue to do that,” Strobel told the News.
While experts generally agree on the likely outcome of this most recent case, they have trouble predicting how an overturning of affirmative action could be implemented.
“Telling people not to take race into account? I have no idea what that means,” Rubinfeld said.
Even without a race and ethnicity checkbox, he explained, a student’s background may bleed through in other parts of their application, such as their essays, interviews or activities.
And Rubinfeld said that as a professor in the University of California system, he understands this especially well. California outlawed affirmative action in public universities in 1996’s Proposition 209.
Though Rubinfeld said he believes the student body at UC Berkeley School of Law is diverse — the most recent class of first-year law students is less than 50 percent white — this was not always the case. According to the New Yorker, the number of Black students at Berkeley dropped by almost 50 percent in the first year after Proposition 209 was implemented.
Though two decades have since passed, experts think barring affirmative action at the federal level will have similar effects. David Card, a labor economist at UC Berkeley whose research is used in the defendants’ case, estimates that eliminating race-conscious admissions programs would reduce the share of students identifying as Black, Hispanic and “other” by nearly 50 percent as well.
Greenhouse emphasized the gravity of the case.
“The stakes are high and the ruling could be very far reaching,” Greenhouse wrote in an email to the News. “It’s no exaggeration to say that what’s on the line is the ability of colleges and universities (and private secondary schools, for that matter) to take applicants’ race into account in their effort to construct a diverse class or maintain diversity in the student body.”
Marilynn Schuyler, an attorney who specializes in affirmative action, said the case will hinge on whether the court considers how the details of a person’s background — such as their race, gender, socioeconomic status or family makeup — can impact their academic achievement.
“The question is really whether the Supreme Court will take into consideration that some people need a little extra help because of circumstances they grew up into,” she said.
Schuyler pointed to standardized tests like the SAT, which has been accused of showing race and gender bias in its questions, as an example. At Yale, the shift to a test-optional application policy has been correlated with a rise in applications from underrepresented minorities.
The National Center for Education Statistics, a subset of the Department of Education, reports that Asian American high school graduates in 2019 outscored white students on the SAT by about 100 points, Hispanic students by about 200 points and Black students by almost 300 points.
And SFFA’s argument in the Harvard case hinges on the perceived objectivity of standardized tests by alleging that the university discriminated against Asian and white applicants by admitting members of other racial demographics who had lower test scores.
“The cornerstone of our nation’s civil rights laws is the principle that an individual’s race should not be used to help or harm them in their life’s endeavors,” Blum wrote in an SFFA press release.
Schuyler, who serves as a board member for the American Association for Access, Equity and Diversity, said that Blum’s belief is popular among a large swath of Americans, as many people believe in a post-racial America where affirmative action is no longer necessary.
“If that were true we wouldn’t be having a Black Lives Matter movement,” she told the News.
Affirmative action is not just a factor when it comes to higher education, but is also often discussed in the workplace. But unlike in college admissions, Schuyler said, employers can recruit for diverse applicants, but once those candidates are being evaluated, considering demographic information constitutes discrimination.
But according to Scuyler and Joshua Goodbaum ’04, the employment sector is too complex to accurately foretell what a post-affirmative action world might look like.
According to Goodbaum — an employment lawyer and partner at New Haven’s Garrison, Levin-Epstein, Fitzgerald and Pirrotti — affirmative action in employment is “complicated.”
“The current state of the law is that employers may engage in affirmative action if they have a ‘strong basis in evidence’ that remedial action is necessary,” Goodbaum wrote in an email to the News, “usually to remedy a demonstrated history of past discrimination.”
Goodbaum added that if the Supreme Court acts as predicted and prohibits race consciousness in university admissions, he suspects that employment lawyers may then argue for a complete ban on race-consciousness in hiring as well.
And the defeat of affirmative action in schools can have more than just a legal impact on employment, Schuyler noted.
“Education is a great equalizer and if we want to have diverse people working in good jobs we need a diverse applicant pool from which to choose and we need affirmative action to get there,” she said.
Although SFFA has so far devoted all resources to opposing affirmative action, Blum’s next frontier may be legacy admissions. Blum told the News that his organization opposes legacy preference in admissions, which he says “inhibit[s] and diminish[es] the opportunities of applicants from modest socioeconomic backgrounds.”
In May 2021, the Connecticut District Court ruled to hold SFFA’s case against Yale’s affirmative action preference until the Harvard case is decided in the Supreme Court.