When Supreme Court Justices want to justify overruling long-standing precedent, the paradigm often cited is Brown v. Board of Education, from 1954, which, in declaring segregation unconstitutional, overruled Plessy v. Ferguson and its “separate but equal” doctrine, from a half century earlier. During the last term, Justice Samuel Alito offended many people when he compared the Court’s overruling of Roe v. Wade to Brown’s overruling of Plessy. (He continued to offend people last week, when a new book by John A. Farrell revealed that, during Alito’s confirmation hearings, he had privately told Senator Ted Kennedy, in reference to Roe, “I am a believer in precedents.”)
This term, the Court will lean more pointedly into Brown’s legacy in a pair of cases about the use of race in college admissions. Eight years ago, Students for Fair Admissions, a group founded by the conservative activist Edward Blum, filed lawsuits claiming that the policies of Harvard and the University of North Carolina are racially discriminatory. The universities successfully defended themselves in the lower courts, but the Supreme Court, which hears oral arguments in both cases on October 31st, will likely overrule more than four decades of precedents, and declare that it is unlawful to use race as a factor in admissions.
S.F.F.A. alleged in the 2014 suits that race-conscious affirmative action violates the equal-protection clause of the Fourteenth Amendment and also Title VI, the statute prohibiting any “program or activity” that receives federal funds (this category includes virtually all colleges and universities) from discriminating “on the ground of race, color, or national origin.” At the time, this claim was a clear loser under Supreme Court precedents that interpreted both the Constitution and the statute to mean that schools can consider race as one factor in a holistic review of an applicant. Indeed, it was dismissed before trial. But S.F.F.A. also claimed that Harvard and U.N.C. had deviated from those precedents to achieve “racial balancing,” which the Court prohibited, and that Harvard had discriminated against Asian Americans in particular. That set of claims against Harvard made it to trial in federal district court in Boston, in 2018, and some of the evidence was troubling, suggesting at least implicit bias against Asian applicants relative to white ones. (The school denied that it discriminated; the percentage of Asians in the entering class has now risen to 27.9 per cent.) But S.F.F.A.’s purported effort to protect Asians is widely seen as a vehicle for Blum’s broader agenda, which is to rid society of all so-called racial preferences; he has already shepherded six cases to the Court, including Shelby County v. Holder, which sharply curtailed the Voting Rights Act.
Each university prevailed at trial by proving that it had complied with the Court’s precedents. But the Court is hearing the cases to consider whether those precedents—including Regents of the University of California v. Bakke and Grutter v. Bollinger—should themselves be overruled. If it finds that they should, the ruling will also raise doubts about the permissibility of affirmative-action practices in employment, and cast a further shadow on race-conscious efforts to protect voting rights.
For decades, conservative Justices have read Brown as standing not for an anti-subordination idea but, rather, for a color-blindness principle that disapproves of determinations that consider race. That reading claims to find support in Justice John Marshall Harlan’s famous dissent in Plessy, in which he stated, “Our Constitution is color-blind, and neither knows nor tolerates classes among citizens.” Chief Justice John Roberts has repeatedly made clear his distaste for actions that take race into account. In a 2006 case about creating majority-minority voting districts in Texas, he wrote, “It is a sordid business, this divvying us up by race.” A year later, in explaining why the Court disallowed Seattle from undertaking a race-conscious measure to ameliorate de-facto segregation in public schools, he wrote the highly quotable line “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” It was a polar rejoinder to Justice Harry Blackmun in his concurrence in Bakke: “In order to get beyond racism, we must first take account of race. There is no other way.”
What has been contested since Brown is what, exactly, “discrimination on the basis of race” means. For conservative Justices, it appears to mean taking account of race in any way, even to remedy the effects of prior discrimination. When Harvard went to trial, in 2018, it said that the consequences of not considering applicants’ race would be dire: fewer than half the Black students and fewer than two-thirds of the Hispanic students admitted to the class of 2019 would be accepted. But, if affirmative action is ruled unlawful, Harvard and other schools will surely not abandon their commitment to diversity, which they understand as indispensable to the educational mission—in part because the Court itself has said so for decades, holding, in Bakke and in Grutter, that promoting diversity is a “compelling interest.” Those schools will then need to turn to a variety of methods that are race-neutral but may still help to achieve racially diverse results.
One of the most widely discussed of those methods involves standardized tests. The pandemic gave Harvard and other top universities an urgent reason to make the submission of SAT and ACT scores optional, but more could follow the University of California system, which last year ended the consideration of all standardized-test scores in a settlement with students who alleged that the tests disadvantaged, among other groups, racial minorities (excepting Asians). Another possibility is to promote students from low-income families or neighborhoods, or from poorly funded schools, which have a high concentration of underrepresented minorities. But the coming years will undoubtedly bring an onslaught of litigation about whether strategies designed to produce a diverse class without using applicants’ race are themselves unlawful.
The Court’s view, in its affirmative-action precedents, has been that educational diversity is a foundation for a multiracial democracy. Rejecting those precedents would be a key piece of a “color-blind” vision, in which race-conscious efforts to insure citizens’ equal rights are seen as discriminatory. At the heart of the issue is which definitions of discrimination and equality best fit our democracy. The character of that democracy hangs in the balance. ♦