Race and College Admissions: The Supreme Court’s Train Whistle Docket Just Got a Lot Louder

Below is my column in the Hill on the Supreme Court accepting two cases dealing with racial preferences in college admissions. As with the pending abortion and gun rights cases, these two cases have the makings of yet another major reframing of a long-contested area.

Here is the column:

Last year, I wrote about the Supreme Court’s “train whistle” docket with cases on abortion, guns, immigration, and other issues barreling down the track. Well, that whistle just got a lot louder.

This week, the court accepted two cases challenging racial preferences in college admissions. As with abortion and guns, a majority appears to have formed to bring clarity to an area long mired in ambiguity. For critics, universities have used that ambiguity to evade limits in the use of race in admissions. If the conservative majority has been waiting for the most impactful cases and time to move, it clearly found them in Students for Fair Admissions v. President & Fellows of Harvard and Students for Fair Admissions v. University of North Carolina.

The last time the court dealt with the issue of race in admissions was 2016 in Fisher v. University of Texas. The court upheld the use of race in the admissions process of the University of Texas at Austin by a vote of 4-3. After the decision, the late Justice Ruth Bader Ginsburg noted that, if Justice Elena Kagan had not recused herself, it would have been 5-3 and “that’s about as solid as you can get.” At the time, she said that she doubted “that we’re going to see another affirmative action case … at least in education.”

Ginsburg’s comment notably omitted two additional facts. First, if Justice Antonin Scalia had not died shortly before the release of the opinion, the vote would have been 4-4 (and 5-4 with Kagan). Second, courts change. While she was right about not seeing another such case during her time on the court, this is now a very different court with two of the Fisher majority no longer among its members.

There is now a 6-3 conservative majority on the court, and Chief Justice John Roberts, Clarence Thomas, and Samuel Alito previously voted against the University of Texas. To quote Ginsburg, with three justices previously voting against such race-based criteria and the three Trump appointees, “that’s about as solid as you can get” for a major reframing of the controlling case law.

The court has spent decades issuing often conflicting and vague 5-4 rulings on the use of race in admissions. In 2003 in Grutter v. Bollinger, the Court divided 5-4 on upholding admissions criteria used to achieve “diversity” in a class at Michigan Law School. However, in her opinion with the majority, Justice Sandra Day O’Connor stated that she “expects that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.” That was almost 20 years ago.

In their Fisher dissent, the conservative justices noted that the university was being “less than candid” in addressing its use of race in admissions. They objected to the mantra of achieving a “critical mass” in a class without a clear definition or standards. For critics, that is an understatement. For decades, universities have evaded the impact of court decisions limiting the use of race by avoiding mathematical or threshold criteria that could be challenged. Grutter’s “diversity” rationale used race as one of a number of factors.

The two new cases could not be better suited for a major reframing of the law governing college admissions. The North Carolina case presents the prior question of the use of race to give a preference to Black, Hispanic and Native American applicants to the disadvantage of white and Asian students.

The Harvard case has a novel twist: The university is accused of discriminating against one minority group (Asians) in favor of other minority groups. It allegedly did so through a system that critics believe was little more than a subterfuge for racial discrimination, allowing staff to apply a subjective standard to gauge traits like likability, courage and kindness to lower the ranking of Asian students. It is the type of evasive practice that critics have complained about for years at schools intent upon continuing affirmative action in admission — a practice that was rejected in University of California v. Bakke in 1978.

Since that decision, the Supreme Court itself has become the focus of the controversial use of race in admissions. President Joe Biden has pledged to consider only Black females for the next vacancy, the type of quota system rejected by the court itself for school admissions.

Both the Harvard and North Carolina at Chapel Hill admissions criteria were upheld by lower courts. That was despite the acknowledgement of U.S. District Judge Allison Burroughs in the Harvard case that the criteria clearly disfavored Asian American applicants who “would likely be admitted at a higher rate than white applicants if admissions decisions were made based solely on academic and extracurricular ratings.”

In the North Carolina case, the challengers maintain that the data shows that an Asian American male in-state applicant with a 25 percent chance of admission to UNC would have a 67 percent chance if he were Hispanic and a 90 percent chance if he were an African American. For an Asian American male from out of state with a 25 percent chance of admission, the odds of admissions for an African American with the same scores would be 99 percent, according to their briefs.

If the court accepts this claimed disparity, it could use the case to show that the diversity rationale has been little more than a rationalization for racial discrimination.

With the court possibly moving against race-conscious admissions, universities are already discussing how to continue to seek diversity goals. Just as President Biden and some states are already moving on to “Plan B” for abortion rights in anticipation of a major ruling this year, schools appear to be adopting their own “Plan B.” The universities in the California system and other schools are moving to drop standardized testing in admissions, a move that will make it even more difficult to challenge race as a criteria without such test rankings.

The current docket reads like a list of “unfinished business” for the conservative majority. On abortion, the Court seems ready to ditch the pre-viability standard and perhaps Roe v. Wade itself. On gun rights, the conservative justices also noted a lack of candor in states evading prior limits and appears ready to bring clarity in its upcoming ruling.

As with the gun case, the majority may seek to impose a bright-line rule to address such “less than candid” practices in college admissions. Ironically, while Justice O’Connor was much maligned for her prediction in Fisher that the use of racial preferences in college admissions would not last beyond 25 years, she may have been five years too conservative.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can find his updates on Twitter @JonathanTurley.

70 thoughts on “Race and College Admissions: The Supreme Court’s Train Whistle Docket Just Got a Lot Louder”

  1. As always, racists like Turley are going to racist. Just like they heavily moderate their boards while crying about cancel culture, but just as long as they don’t serve Asian food in the cafeteria, right? Don’t worry, your knee jerk MAGATs don’t remember, but we do…Just like your victims, I mean students, at GW

  2. Most of us are not ready for a strict meritocracy, defined as one where social connectivity counts for nothing.
    How many are willing to be brutally honest — part of life is who you know and who they know. If you were to
    even attempt to take that away, it’s not clear institutions survive and thrive, and there would be a resistive backlash
    since we are social primates.

    We’re just at the starting point of probing deep into inborn, subconscious preferences for self-similar people. Babies age 3-months demonstrate this inborn perception and bias.

    So, we’re at this stage of race relations where “act like racial-difference doesn’t matter”. The solipsist begs to know “Why should I act?…isn’t that being dishonest?” To which there is no good answer, the solipsist not caring about what works to the benefit and comfort of “others”.

    I hope SCOTUS will come down hard on Harvard, and provide Asian students a level playing field.

    That said, anti-discrimination law isn’t going to perform up to specs. You need essentially new conceptions of social development and social architecture to build a post-racial meritocracy. Getting started with these will take incredible candor, self-awareness, positive thinking and courage. If it’s possible in any country, it’s the U.S.

  3. No society in history has ever survived when its goals were “diverse,” benefits were afforded one group to the detriment of another based on anything other than merit, and justice was reserved only for the few.

    SCOTUS has mixed this witches’ brew with affirmative action and now we have to drink it. The farther one gets from the truth the more corrupt a society becomes. SCOTUS has forced us to embark on this trip to Never-Was land and now they should get us back on the path. “Truth is the beginning of every good to the gods, and of every good to man.” ~Plato

  4. Nobody wants diversity.
    Not until you get brain surgery and demand you see a POC transgender dwarf.

    But nobody does that, do they? Because it would be stupid.

  5. If race is now the sole immutable barometer of who is a victim, who a victimizer, then LeBron James, Jay-Z, Kayne West, Chris Rock, Michelle Obama, and Oprah Winfrey are always to be among the eternally oppressed. The enormous influence, power, status, and wealth they wield never negates their victimhood, despite a nation three generations into affirmative action.

    In the immoral calculus of woke, the poor white or Southeast Asian offspring of poorly paid high-school dropouts constitute “the privileged.” And a multimillionaire racist like the TV anchorwoman Joy Reid claims to be the perpetual victim, not the inner-city African American retiree who in 2021 has lost local police protection.

  6. Jonathan: As further proof you march lockstep with Fox News on almost every issue consider the following. Yesterday Fox’s Geraldo Rivera said that Biden’s nomination of a Black woman to fill Justice Breyer’s vacancy would be “affirmative action”–echoing your column. After co-host Jesse Watters asked why the President doesn’t nominate a Puerto Rican, Rivera ( of Puerto Rican ancestry) quipped: “They have one”. For Rivera the quota for Puerto Ricans has been filled by Justice Sotomayor. Perhaps Rivera also thinks the Black “quota” has also been filled by Clarence Thomas. Rivera also maligned Sotomayor with the comment: “She makes great rice and beans”. So much for Rivera’s personal attacks. Notice he didn’t say Thomas “makes great chitlins.” because Thomas is definitely in the “Big Steal” camp of Donald Trump .It took only one day for you to post your own “quota” critique of Biden’s likely nomination. It seems that you and Fox believe that when a white president puts 3 white conservatives on the Supreme Court that’s OK–it’s perfectly normal, perfectly acceptable. But when Biden wants to nominate a Black woman to the Court that’s forbidden “affirmative action”. Duplicity? You bet. So the next time you want to follow up by promoting the Fox talking point of the day wait a week or two so your connection to Fox is not so obvious–and you won’t be labelled a mere political hack who disguises himself as a “constitutional expert” and “academic”.

    1. When Biden eliminates all but Black Women as possible candidates that is the problem….not that a Black Woman becomes the Nominee.

      Huge difference there!

    2. It is wrong to hire someone based solely on their skin color vs. selecting someone of an under-represented race ONLY AFTER considering them from a mixed-race pool of otherwise qualified applicants.

      That is the law of the land as relates to most private & public employees right now, so why shouldn’t it also apply to Jurists on America’s Highest Court? Or, why shouldn’t this be the law at all, in your view?

  7. Turley Censoring Relevant Information

    It appears Professor Turley has a filter of some kind that prevents any mention of the man behind these lawsuits challenging Affirmative Action. Because this commenter has tried repeatedly to post a Wikipedia bio profiling said activist. But nothing sticks!

    HINT: The ‘Challenger’ is not an Asian student.

    1. Trying to post anything from Wickedpedia as a valid, independent source should always be banned, so there’s that.

      But If you’ve got primary source info + reasonable explanation as to why anyone should read about it here, then let the Administrator know and perhaps they will help it post.

  8. Professor Turley Writes:

    “In the North Carolina case, the challengers maintain that the data shows that an Asian American male in-state applicant with a 25 percent chance of admission to UNC..”

    Interestingly Professor Turley feels no need to explain who the ‘Challengers’ are. Perhaps he wants us to assume they are hard-working Asian students whose educations are threatened by Affirmative Action quotas.

    But Students For Fair Admissions is actually Edward Blum, a White, conservative activist well into his 60’s. Blum has essentially made a career of challenging racial quotas of any kind. And ‘no’, Blum is not a lawyer. He’s just good at finding lawyers.

    Professor Turley more than likely knows Edward Blum, or certainly knows of him. But for the purposes of this column, Turley would like us to think the ‘Challengers’ are deserving Asian students.


    1. Regarding Above:


      Blum was behind Shelby v. Holder. That case gutted important protections in the Voting Rights Act with drastic effects for voters of color. His attacks on laws and policies designed to promote the equality of people of color are not limited to voting rights. Blum also crafted the unsuccessful challenge to race-conscious college admissions programs in Fisher v. University of Texas.

      Failing in Fisher, Blum baldly strategized that he “needed Asian plaintiffs.” He formed Students for Fair Admissions as a vehicle to file litigation. The organization’s leadership consists solely of Mr. Blum, Abagail Fisher, and Richard Fisher, her father. Through Students for Fair Admissions, Blum recruited “members” and filed his challenge to college admissions against Harvard with a twist. This time, Blum claims that the consideration of race discriminates against Asian-Americans.


  9. Here is a novel idea. Hire airline pilots without considering training and experience. Hire solely on the basis of race.

    What universities should be doing is taking a long range strategy. Identify the brightest and best disadvantaged students that demonstrate a lot of potential. Identify them while they are still in middle school and high school. Guide them into programs where they can succeed and when they are preparing for entrance into advanced education, they will have high marks and will enter on merit.

    I saw a graduate program at a well known university system do this very thing. Their class performance and national scores were the best in the nation and were the most diverse graduating class.

    To do this takes vision and determination. School systems are flush with cash but much of it goes to fluff and administration. No student wants to pass based only on skin color. They want to know that they went the distance, came up against tough teachers and curriculum and made the grade.

  10. Private universities may “claim and exercise” dominion over their property; they, alone and exclusively, may possess and control the disposition of their property, which is the nature of “private” juxtaposed with “public”.

    Public universities, in a free society, can provide no coherent rationale for admitting any student on any basis other than merit, which is the only natural and logical basis for admission to an educational institution.

    “[Private property is] that dominion which one man claims and exercises over the external things of the world, in exclusion of every other individual.”

    – James Madison

    5th Amendment

    No person shall…be deprived of…property,…nor shall private property be taken for public use, without just compensation.

  11. In today’s WSJ, Mr. Turley says that “a college couldn’t get away with Biden’s high-court criteria.”

    I respectfully disagree. That is precisely what MIT did in the late 90s and they have only become more “woke” since. The year was 1998, and the previous academic year I had the duty to escort Betty Johnson, then an employee working in the MIT admissions office. She was visiting Charleston and at some point, she and I got to discussing early decision, ie early acceptance. My son, whose academic credentials were astronomical even by MIT’s criteria—and who was about to get his degree after a mere 2 1/2 years—had requested, but had not received it.

    Betty enlightened me. Early action was reserved for only Black and American Indian females. I pointed out to her that, in one fell swoop, the admissions office had violated at least two, if not more federal laws. She assured me they had not. I assured her she was wrong.

    Months later I locked horns with the (now disgraced) dean of admissions, Marilee Jones over the issue. Seems that Marilee thought she could do just about anything she wanted. Except for fabricating her resume. Which proved to be her Waterloo.

    Policies changed for a little while after I turned the lights on. The roaches all scurried away. And now, with the Dorian Abbott affair, they’re back. In spades.

  12. Where is “JeffSilberman today???? The outspoken commenter who was criticized for his attacks on Professor Turley and all things Trump–suddenly became the good professor’s best friend–one who was aligned with all of Jeff’s legal views. Then we had his Anonymous counterpart come uot and say thst Jeff was only critical of the professor’s hypocrisy over FOX, “his employer (sic).”. C’mon out, Jeff, and show us that you unabashedly “agree with Turley” for unequivocally defending Trump (para 12, or 6th para from bottom) and criticizing Biden (something I just said he would do). Red Rover, Red Rover, let Jeffie come over!

  13. Imagine being a progressive, female, black or latina supreme court justice voting on racial and sex-based preference cases, knowing that you were appointed to court explicitly because of your race, sex, and political ideology. You know it. All the other justices know it. Everyone in America knows it. And those that aren’t afraid to talk about it pretend that it is a benefit. What a horrible position for the justices involved. Worse yet, what a horrible position for the American people.

  14. Jonathan: You complain that “President Joe Biden has pledged to consider only Black females for the next vacancy, the type of quota system rejected by the court itself for school admissions”. This is a disingenuous claim since Trump had his own “quota system” when he selected three white conservatives for the Court. In fact, you strongly supported Justice Barrett for the Court. Funny, you only complain when Biden wants to nominate a Black female. That strikes me as both a double standard and racist.

    On another subject you continually insist Jan. 6 was not an “insurrection” but just a protest that devolved into a “riot”. Your characterization is apparently going to be tested in North Carolina. A group of lawyers are working to disqualify GOP Congressman Madison Cawthorn from running for a second term under Section 3 of the 14th Amendment which prohibits anyone from holding public office who has “engaged in insurrection or rebellion against the same [Constitution] , or given aid or comfort to the enemies thereof”. Cawthorn is apparently worried because he has hired James Bopp, Jr., a prominent conservative campaign lawyer, to defend against the challenge. Bopp dismisses the challenge but admits that “just by bringing the complaint, they might jeopardize a member of Congress running for reelection”. It is interesting that North Carolina’s election law has a low bar to challenge a candidate’s qualifications–just a “reasonable suspicion”. Then the burden shifts to the candidate to prove he is not an “insurrectionist”. This may prove difficult for Cawthorn. He encouraged the Jan.6 attack on the Capitol. He promoted the “Save America” rally. He said “it’s time to fight” and later claimed that those arrested later were “political hostages” and he would like to “bust” them out of jail. Cawthorn went even further: “If our election systems continue to be rigged and continue to be stolen, then it’s going to lead to one place, and it’s bloodshed”. Whoa!

    The lawyers challenging Cawthorn’s candidacy have others in their sights–even Donald Trump. They want to keep him off the North Carolina ballot, an important swing state, in 2024 should he decide to run. It should be easier to show Trump is an “insurrectionist”. Now as a self-described “constitutional expert” we are anxious to hear your take on Section 3 of the 14th Amendment considering a number of other constitutional experts have said the challenge has merit. What say you?

    1. We all expect presidents to nominate their ideological allies. You cannot, however, claim that Trump considered only whites, or only females, or only males. Biden is narrowing his choices (and ours) to those who belong to a given race and sex, which, while not extra-legal, is something no public servant to the people, ought to do.

    2. Dennis: Prof already stated his opinion. You atre now bearing a dead horse. FBI has already made an apprisal on 1-6-2021 and stated was not a collateral or organizedaction. But you channel locked tunnel visioned Trump haters continue to hack and hate. Fr

  15. The foundational problem is that “fair” means different things to different people.

    To those who believe in meritocracy, fair reward hard work and dedication. Asian families statistically value education and accomplishments, so based on merit, they earn a high level of academic opportunities.

    To those who believe that one’s inherent worth is based on race, then the only fair division is a skin deep one.

    1. Under a meritocracy, if you work to improve yourself, you can improve your condition in life.

      But if you’re judged based on race, then there is nothing you can do to improve your chances. It’s Nihilistic.

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