The Volokh Conspiracy

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Some Thoughts on Last Week's Oral Argument in the Affirmative Action Cases


I was asked to give some brief remarks on the affirmative action cases at a panel discussion at the University of Baltimore today. I typed up some notes, and I thought they were worth sharing:

  • I think at least seven Justices, including Kagan on the left, converged on the notion that given the requirement of strict scrutiny for racial classifications, that use of such classifications for admissions must be narrowly tailored to serve a compelling interest—that universities must seriously consider and to a significant extent exhaust non-racial alternatives to achieve diversity before using racial preferences. If Kennedy and O'Connor were still the swing votes, I could imagine a narrow opinion along those lines, saying that Harvard's and UNC's admissions policies did not pass strict scrutiny because they did not properly explore and try race-neutral alternatives, such as eliminating alumni preferences.
  • But I don't expect such a narrow opinion. First, the Court has grown more conservative. Second, I think the conservatives gave the clear impression that they think the defendants and similarly situated schools have been openly cheating—the Court keeps telling them they need to use race is a narrowly tailored way, and they keep acting as if the Court told them they could do whatever they want so long as they don't use hard quotas. Unlike Justice O'Connor in Grutter and Justice Powell in Bakke before her, I don't think anyone in the current majority trusts universities to obey any rule that provides any wiggle room. It doesn't help that the conservative Justices are personas non grata at elite universities these days. Recall that Justice Kavanaugh was teaching at Harvard until totally unsubstantiated allegations of a decades-old sexual assault were leveled against him, at which point he lost that gig. The Justices' ties to the elite establishment are much weaker than they once were.
  • I thought it was a terrible strategy by UNC's lawyer, and Harvard's to a lesser extent, to deny that race can be a dispositive factor in admission. You can't with a straight face argue that race is never dispositive, but banning the university from considering race will lead to a plunge in diversity. That's mathematically impossible.
  • The Court was much more interested than it has been in previous cases as to whether the classifications used by the universities are coherent and really are diversity-enhancing. Justice Alito pressed UNC's lawyer on why it makes sense to use "Asian American" as a diversity classification when it encompasses everyone from Afghans to Filipinos (though in fact Afghans are officially white, but you could substitute Pakistanis). Justice Kavanaugh asked which box Middle Eastern Americans should check off, I think trying to raise the point that many people think of Middle Easterners as people of color who would add to diversity, but are classified by the Common App and by universities as white. Remarkably, the attorney claimed not to know the answer, even though the Common App specifically puts Middle Easterners into the white category.
  • More generally, there has been a real shift from the dynamics of Bakke in 1978 to the situation today. In Bakke, while most students admitted into the quota program in that case were Chicano or Asian American, the debate was almost entirely over whether affirmative action may be used to make up for discrimination against African Americans, with slots that would have otherwise gone to white applicants. In the last 44 years, the US has grown much more ethnically and racially diverse, such that 25% of the 18 year population is Hispanic compared to 15% African American, and Asian Americans, around 1% of the population in 1978, are now more like 7%, and draw from an incredible array of countries and cultures. This really complicates the debate, as the beneficiaries of affirmative action are no longer primarily black Americans, and at least in elite university admissions, those who may be subject to higher standards in admissions are often Asian rather than white, and Harvard in particular seems to make it more difficult for people classified as Asian to be admitted than whites.
  • Justice Kavanaugh, interestingly, suggested a possible compromise that brings us back the original impetus for affirmative action. He asked whether universities could implement a preference for descendants of American slaves, as a non-racial classification that would therefore not be subject to strict scrutiny.