Why I’m betting affirmative action may survive the Supreme Court… for now.
Any day this month, the Supreme Court of the United States will issue a ruling on the future of affirmative action. As the most contentious and high-profile issue of the court term, the court can easily go one way or the other based on a few swing votes. Yet, if you listened to legal experts and most court watchers, the outcome is almost set in stone. Affirmative action will be dead.
As the New York Times (reflecting the general belief of the legal community) has it, the high court “is widely expected to overturn or roll back affirmative action in college admissions.” In doing so, the court would overturn its precedent in Grutter and Bakke, which allowed for “the race of an applicant” to “tip the balance in his [sic] favor.”
It is certainly a possibility that the Court will outlaw the use of race in higher education admissions. However, I don’t believe it is an inevitability. When betting markets assigned an 80% chance of an universal ban early this year, I took a bet against the prevailing wisdom. Here is why:
Reason 1: Even if it bans affirmative action, the Court may have a carve-out for US military academies
During the oral arguments last fall, the Attorney General made a compelling argument about why the military academies (West Point, the Naval Academy, the Air Force Academy, etc.) required affirmative action. The following is the general gist of the argument:
- It is national security imperative for the officer corps of the US military reflect the diverse fighting force.
- The military has a “closed personnel system.” The individuals entering and graduating from the service academies or ROTC programs will be the only eligible candidates for leadership ranks within the military.
- The service academies have seriously studied race-neutral alternatives, and currently have not found a compelling manner to attain a diverse class.
- The Coast Guard academy in particular successfully petitioned Congress to lift the ban. This constitutes clear legislative intent.
It was very clear many justices bought into this argument:
- Chief Justice Roberts asked for whether it was possible to “separate” the service academies from general education institutions when ruling on affirmative action.
- Justice Alito, one of the most conservative justices on the court (and likely someone itching to strike down affirmative action), stressed that “the military is something we have to take very seriously.”
Reason 2: The cases can be individually ruled or remanded as they don’t hold up to strict scrutiny
During the oral arguments, it seemed that the justices were rather strangely obsessed with legacy preferences or donor preferences when it came to the admissions processes. Justice Gorsuch in particular raised the instances of “squash players” and children of “art museum” donors.
This seemed to be the argument that was being developed by the line of questioning:
- Admission programs must be evaluated holistically
- Before using race as a tip, the admission program must demonstrate it exhausted all alternatives to accomplish diversity without sacrificing other compelling interests.
- Many admission practices have dubious compelling interests, and lead to non-diverse class. For example, universities often prefer “donors”, prefer legacies, prefer (overwhelmingly white) squash players. During oral arguments, UNC’s lawyer even admitted that there was no compelling interest in these preferences.
- For a university to continue those practices, then turn around and complain they have no choice but to use affirmative action to have a diverse class, is farcical.
The Attorney General, later in the oral arguments, latched on to this line of questioning. She noted that if the Court found that the lower courts did not “apply the strict scrutiny and narrow tailoring analysis that it should have … that’s a remand.”
Reason 3: Some schools may have justification for a deadline “extension” to end affirmative action
Much of the discourse was around a potential deadline for affirmative action to sunset — the “25 years” mentioned in Grutter. The most compelling manner for the Court to end affirmative action would be to argue it was merely following its original deadline in Grutter.
However, some edge cases throw a wrench into that plan:
At the top of mind here are HCBCUs, which, as their name suggests, are “Historically Black.” This is a political risk if the Court bans race-based consideration in admissions.
However, as the UNC case surfaced, this is also applicable to general public institutions. Because of the racial history in North Carolina, as well as UNC’s history of exclusion, the university may need an “extension” on the affirmative action sunset deadline.
Conclusion
Because of the reasons above, I felt it was premature for affirmative action opponents to rejoice, and premature for affirmative action advocates to lose hope. I predict that the court will certainly lay down the law on how most universities operate their admissions processes, but stop short of banning affirmative action completely.
To that end, I have put money where my mouth is — about $300 worth, to make a $1200 profit.
