Affirmative action seeks to address past discrimination on account of race, gender, or national origin. It isn’t a “free pass,” but as the law now stands, it allows educational institutions to consider these characteristics as part of the admissions process.
The Senate has confirmed Katanji Brown Jackson’s nomination to the Supreme Court, and when Justice Breyer’s resignation becomes effective at the end of this year’s Court term, Judge Jackson will take the constitutional oath of office and become Justice Jackson. She will be the first black woman, and the second Jackson, to sit on the Supreme Court. Robert H. Jackson, who took a leave of absence from the Court in 1945 to prosecute Nazi war criminals at Nuremberg was the first.
Did affirmative action help her reach this highest judicial position?
In one sense, I suppose it did. Candidate Biden announced that as President he would name a Black woman to the Court. Some applauded him, while others denounced his elimination of everyone else from consideration.
On the other hand, anyone who watched the nomination and confirmation process knows that Judge Jackson is a person of extraordinary intelligence and accomplishment. If she were a violinist auditioning behind a curtain to become concertmaster of the Boston Symphony, she would win the position in a heartbeat. Her qualifications match up favorably with any Supreme Court justice in our lifetime.
In the term that begins in October 2022, the Supreme Court will hear a case called Students for Fair Admissions Inc. v. President & Fellows of Harvard College. The issue is whether the Court should overrule its 2003 decision in Grutter v. Bollinger, which held that institutions of higher learning could use race as a factor in the admissions process.
The Grutter case produced five separate opinions, reflecting a badly divided Court. In her opinion for the majority, Justice Sandra Day O’Connor wrote that the Constitution does not prohibit Michigan Law School’s use of race as an admissions factor, which she described as a “compelling interest in obtaining the educational benefits that flow from a diverse student body.” She expressed her belief that “25 years from now the use of racial preferences will no longer be necessary.”
Those words remind me of Chief Justice Robert’s 2013 opinion in Shelby County v Holder that it was no longer necessary to enforce the preclearance part of the Voting Rights Act of 1965, meaning states that had historically discriminated against minority voting rights became free to change their election laws without asking anyone for approval..
As recently as 2016, in Fisher v. University of Texas, Justice Anthony Kennedy’s opinion in a 4-3 decision upheld the university’s race-conscious admissions program. Justice Clarence Thomas dissented and accused Kennedy of engaging in “pernicious assumptions about race.”
The Harvard case accuses Harvard of violating Title VII of the Civil Rights Act of 1964 by discriminating against Asian-Americans in its admissions process. Harvard won in the lower courts – a fifteen-day non-jury trial followed by a First Circuit appellate decision upholding Harvard’s undergraduate admissions process. The Court’s ruling was based on the evidence that while Harvard takes race along with other factors, into account, it does not discriminate against Asian-American applicants, and that student body diversity serves a compelling educational interest.
Life is full of ironies. A century ago, Harvard President A. Lawrence Lowell, who had earlier petitioned against confirmation of Louis Brandeis to the Supreme Court, proposed a type of reverse affirmative action in the form of a quota reducing Jewish enrollment.
Affirmative action has a troubled history in American law. There are rational arguments to be made on both sides of the question. It comes down to whether anti-discrimination laws that open the door are sufficient to remedy the ills of both the past and the present and enable people of all races to go through the doorway and embrace the opportunities that lie on the other side.
Recent legislation in several states suggests that Chief Justice Roberts was overly optimistic in the Shelby County case. Freed from any advance review, those states have made voting by members of members of minority groups harder than it used to be. Justice O’Connor’s hopeful twenty-five year prediction in the 2003 Grutter case has six years to go, but I doubt that the Court plans to wait that long. It didn’t grant review in the Harvard case simply to give the First Circuit a pat on the back.
The day when we will no longer need affirmative action to achieve fairness and equality in college admissions can’t come soon enough. I will leave it to others to decide whether we are there yet.
Meanwhile, I’d be willing to bet that the Court will rule against Harvard. I cannot predict who will write the opinion, but Justice Thomas will surely be in the majority. I can predict that Justice Sotomayor, herself a beneficiary of affirmative action, will write a stinging dissent.