“Bakke to the Future”: Supreme Court Reconsiders Affirmative Action with a Conservative Majority

Below is my column in the Hill on today’s argument in the two college affirmative action cases in Students for Fair Admissions v. President & Fellows of Harvard College and Students for Fair Admissions v. University of North Carolina.

Here is the column:

Forty-four years ago, the Supreme Court was the center of a raging protest by thousands as the justices took up the case of Regents of the University of California v. Bakke to decide if racial admission quotas were constitutionally permissible at a California medical school. As a teenage congressional page, I was one of the faces in that crowd gathered around the court in October 1977 to watch history being made.

It now feels like “Bakke to the future” as we once again debate the very basis for using race as race-based criteria for college admissions.

In Bakke, the court ruled against affirmative action in a fractured decision. Yet, in his plurality decision, then-Justice Lewis F. Powell Jr. stopped short of barring the use of race in admissions. Instead, he cited Harvard University’s admissions policy as an example of how race can be one of a number of diversity elements. That extremely nuanced decision would be replicated in decades of later precedent in which the court never seemed able to establish a clear rule on the use of race-based criteria.

For almost five decades, the court has struggled with the uncertainty left by Bakke. Now, the court — and likely another crowd — will gather again to consider the issue, including a review of Harvard’s current admissions plan.

There is reason to believe universities may have run out of time and patience from the court as it considers two challenges, Students for Fair Admissions v. President & Fellows of Harvard College and Students for Fair Admissions v. University of North Carolina. The recently minted 6-3 majority on the court could lose a conservative justice and still have the votes to brush aside nuance for clarity on the issue.

In a reflection of our changing demographics, the court will focus on discrimination directed against Asian applicants, not a white applicant like Bakke. With a higher percentage of top Asian American students, universities have been accused of creating an effective ceiling on Asian American admissions to favor other groups.

At Harvard, admissions officials allegedly used a “personal” rating to achieve a constructive quota. Critics noticed that the admission of Asian students remained suspiciously similar from year to year, between 18 and 20 percent.

In the briefs before the court, Harvard is accused of a sophisticated, disingenuous system designed to hide racial preferences. Harvard uses scores in four “profile” categories for academic, extracurricular, athletic and personal ranking. Challengers argue that Harvard manipulates the score given for personality, likability, courage and kindness, to achieve the same race-based admissions levels.

It turned out that only 22 percent of Asian American applicants received a score of 1 (“outstanding”) or 2 (“very strong”) while over twice that percentage of African American applicants received those scores. That percentage roughly tracks the percentage of admitted Asian American students.

The Harvard and North Carolina cases raise long-standing objections that universities are gaming the system by using ambiguous “critical mass” arguments on diversity to achieve the same results as formal quota systems.

Race-based criteria in admissions have long discomforted justices, even some who have voted to allow its limited use. Since Bakke, the court has handed down a series of fractured and often conflicting 5-4 or plurality decisions.

For some justices, the use of race in admissions stands in sharp, irreconcilable conflict with the ban on racial discrimination in the Constitution under the Equal Protection Clause as well as the Civil Rights Act. In 2017, Chief Justice John Roberts declared: “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”

That clarity may well be at hand for Roberts. Last term, the new 6-3 conservative majority brought greater clarity to several areas with long-standing 5-4 divisions, including its decision to overturn Roe v. Wade. Justices now are asked to establish the bright-line rule that was lost with Powell’s plurality decision. To do so, they must curtail or overturn the 2003 decision in Grutter v. Bollinger.

Back then, the justices considered two different admissions programs at the University of Michigan. In Grutter, the court voted 5-4 to uphold the UM law school’s admissions system that evaluated applicants based on individual merit but used race as a “plus factor.” In Gratz v. Bollinger, which involved UM’s College of Literature, Arts and Sciences, six justices rejected an admissions process that applied individual considerations after a “threshold” use of race.

Notably, even the author of the majority decision in Grutter was uneasy with the use of race-based criteria. Then-Justice Sandra Day O’Connor wrote that the court “expects that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.” That was roughly 20 years ago.

There should be no serious debate that diversity in a class improves the educational experience for students. The question is whether time has finally run out on racial criteria for college admissions.

Some justices have indicated they have little tolerance for race-based criteria. In 2006, Chief Justice Roberts wrote: “It is a sordid business, this divvying us up by race.”

The court, however, has been in the business of race-based admissions criteria for 44 years. In addition to the view of race-based criteria as unconstitutional, some justices may believe past cases show that universities have been able to easily manipulate admissions systems to use race as a determinative factor.

While Justice O’Connor did not believe the use of racial preferences would be necessary past 2028, universities clearly do not agree.

Indeed, some universities are moving toward a new approach that could make it more difficult for future challenges. A few years ago, then-University of California President Janet Napolitano called upon the university system to study whether standardized tests are racist and contrary to diversity policies. She created a task force that seemed designed to answer those questions in the affirmative.

To the surprise of many, the task force did not find the tests to be unreliable or call for abandoning them. Instead, in its final report, it found such standardized test scores “are currently better predictors” of success than other available means, including a better predictor of success for “Underrepresented Minority Students (URMs).” Napolitano thanked the task force and promptly announced she would discontinue the use of the tests and move toward a “test-blind” system.

Whatever value a test-blind system may have academically, it could be impactful legally. It is difficult to find an unconstitutional reliance on race if there are few objective measures to compare groups of students. Eliminating the main objective measure (beyond GPA scores) makes the system more subjective.

That is precisely the basis for the objection to the Harvard admissions process, which applied an amorphous, subjective criterion for “scoring” students.

Forty-four years have brought many changes, while other things have remained surprisingly the same: Bell-bottoms are back, James Taylor is still singing, the Chicago Bears are yet again working on a rebuild — and, yes, we are still debating race-based admissions criteria.

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

121 thoughts on ““Bakke to the Future”: Supreme Court Reconsiders Affirmative Action with a Conservative Majority”

  1. Harvard manipulates the score given for personality, likability, courage and kindness, to achieve the same race-based admissions levels. What nonsense to evaluate prospective students. Thats great to use if your looking for a yoga master. Give me a sharp, incisive mind with somewhat of an edge and stubbornness . That is how you accomplish anything in this world. With 7 billion plus people, you will never convince anybody that your radical new approach to something is worthwhile, simply by it’s brilliance. You have to be able to deal with failure, static minds in authority who won’t ever “rock the boat”, the “it was not done here” so it must be wrong group, the glad handers who weasel into boards and other leadership positions just to achieve power in their silo and block everything else that threatens them. The type of mind that defeats that is usually not warm and fuzzy (the warm and fuzzy ones are the sheep who stand around and stare And fill space while the real minds start the machine rolling) You need the power of a sharp mind and the drive and will of a 40,000 ton icebreaker. Then you gets things done.
    Just look at those presidents who led through the toughest of times. None were really “nice guys”. Indira Gandhi, Margaret Thatcher, Golda Meir were kind of sharp and incisive from the ladies point of view.
    And that was just in politics.
    Most of the great minds in medicine I learned from were “nice” till you messed up. Then you learned that the buzzsaw in carpentry was just a plaything until you ran into the real thing in the OR or the ICU or sometimes just walking down the hall. It was never pretty, sometimes bloody but you never forgot, which was the whole point.
    Merit is all that counts. Race based based admissions need to be thrown onto the dustbin of history, encased in concrete then buried in the Mariana’s trench so it will never rise again.

  2. Affirmative action implies positive steps. The problem is affirmative discrimination under diversity [dogma] (i.e. color judgment, class-based bigotry) that reduces human life to color blocs (e.g. “people of color”).

  3. “There should be no serious debate that diversity in a class improves the educational experience for students. The question is whether time has finally run out on racial criteria for college admissions.”
    I’ve heard this mantra for years. Only diversity of thought improves experience not the melanin content of the sitees. Affirmative action is a denial of equal protection and a misguided attempt to correct history. It’s never worked, been stigmatizing for minorities and resulted in setting up unqualified people for failure with concommitant harm to society as a whole since it disincentivizes hard work. It needs to go as yet another failed social experiment that has penalized the worthy in deference to misguided guilt for wrongs committed by others. Meritocracy works.

    Fire forges iron; not coddling. And expecting us not to notice the decline in competency of college graduates for a multitude of reasons including preferential treatment is a non-starter.

      1. Diworsity.


        “Distrust diversifications, which usually turn out to be diworseifications.”

        – Peter Lynch, One Up Wall Street, 1989

  4. Jonathan: It’s counterintuitive that Clarence Thomas would want to overturn decades of precedent and prohibit affirmative action in college admissions. Especially since Thomas directly benefited from those programs. But the right-wing cabal on the Supreme Court is determined to turn back the clock to a time when economically deprived Blacks and other minorities had no prospect of getting into an elite university. Taking away hard won rights is the new agenda of the Court. Abortion and affirmative action are just the beginning. Next on the Court’s docket is a case that will determine fundamental voting rights. The case involves the right of right-wing politicians to substitute their own slate of electors if they don’t like those chosen by voters. If that happens, as many Court watchers predict, we will be looking at the end of our Democracy!

    1. turn back the clock to a time when economically deprived Blacks and other minorities had no prospect of getting into an elite university.
      Elite universities are elite because they bar most applicants from getting in. Discriminating on non race metrics. What you demand is the same leftist sop. Since it is impossible to make all, the the very top. You demand equality by making sure all are the brought to the bottom.

    2. I’m puzzled by the shock of Democrats at the very idea of an alternate slate of electors that might be chosen if an election were ever overturned. Because that’s exactly how Democrats handled it at their national conventions in 1968 and 1972, when alternate state delegations tried and succeeded in replacing delegations chosen by political insiders.

    3. If the criterion was economic deprivation, instead of race, no one would be contesting it. But it’s not. “Economically deprived Blacks and other minorities” misses the fact that the working class, comprised mostly of whites, is among the most economically deprived groups in the country. And just FYI: working class kids are rare in college, and even rarer at Harvard. If we want to end discrimination, we have to start by ending discriminatory policies like affirmative action.

  5. Every college that receives federal funds should be required to admit students by academic merit alone. No admissions based, even partially, on:
    — the race of the applicant
    — the religion of the applicant
    — where the applicant is from
    — the wealth of the applicant’s family
    — a direct or indirect relationship with a graduate of the college
    — a direct or indirect relationship with a professor or administrator at the college
    — a direct or indirect relationship with a high-ranking politician
    — a direct or indirect relationship with a major donor to the college

  6. Race and sex of an individual for college or work should not be considered qualifications. Instead, it should be based on the individual’s proven intelligence qualifications and proven abilities for the position being applied for.

  7. If it’s immoral to discriminate based on race then asking any question about an applicant’s race on any application of any kind is morally wrong.

    If we are to truly get rid of immoral discrimination in our society then race should never be a consideration for anything making the following organizations immoral…
    • Black Lives Matter (BLM)
    • Black Congressional Caucus
    • National Association for the Advancement of Colored People (NAACP)
    • Black Youth Project
    • Madison Alliance for Black Economic Empowerment
    • Madison Black Chamber of Commerce
    • African American Leadership Forum
    • African American Roundtable
    • Black Male Voter Project
    • Black PAC
    • Center for Black Equity
    • National Congress of Black Women

    All of those real organizations above are created to help Black people. Now change the race focus in the organizations above and watch the claims of racism emerge…
    • White Lives Matter
    • White Congressional Caucus
    • National Association for the Advancement of White People (NAAWP)
    • White Youth Project
    • Madison Alliance for White Economic Empowerment
    • Madison White Chamber of Commerce
    • White Leadership Forum
    • White Roundtable
    • White Male Voter Project
    • White PAC
    • Center for White Equity
    • National Congress of White Women

    If you justify the first group of organizational names and their racial focus and you condemn the second group as racist, then you are a brazen double-standard wielding immoral hypocrite and part of the problem. People have been indoctrinated (taught to accept a set of beliefs on racism, discrimination and persecution uncritically) and this indoctrination is a huge problem.

    I abhor racism, discrimination and persecution of any kind.

    Affirmative Action is “legalized” racism, it’s pure discrimination, it’s pure persecution.

    Racism: prejudice, discrimination, or antagonism directed against a person or people on the basis of their membership in a particular racial or ethnic group.

    Discrimination: the unjust or prejudicial treatment of different categories of people or things, especially on the grounds of race, age, or sex.

    Persecution: hostility and ill-treatment, especially because of race or political or religious beliefs.

    Affirmative Action was put in place by good people with good intentions that were unethically rationalizing their actions by using a mindset that two wrongs make a right and the end justifies the means. Affirmative Action is racist, discrimination and persecution.

    Affirmative Action and anything resembling it should be illegal, nation wide.

    Furthermore; it is my opinion that it should be illegal, nation wide, to ask any question on any application regarding the race of an applicant.

    Furthermore; it is my opinion that a new moral concept, aka cultural norm, should be pushed as a moral people, in a moral nation, that race should not be taken into account for anything. We as a nation need to be racially color-blind. In the United States of America we should emphasize that we are a human race not separate but equal Black, White, Hispanic, Asian, etc races.

  8. The ideological extremism of the left will hopefully once again result in another nail in their radical coffin. As we can presently see, this uncompromising approach to all things has created an electoral backlash. The SC case is a perfect example of the left’s control of our institutions coupled with their extremism. A separate category for school admissions, created solely for the purpose of keeping Asians out, will now be a public demonstration of how these people really think. To evaluate individuals for personality traits like a sense of humor, for example, that has nothing to do with their grades but is dredged up for no other reason than to find an excuse to exclude them is willful racial discrimination in every sense of the word. Let the whole world see it.

  9. I think it is important to acknowledge that 2022 and 1977 are very different years, in the sense that 44 years ago, American parents believed going to college was a worthy goal for their high school children. In 2022, that is no longer the case compared to the past. People of influence are openly stating that college is not only not for everyone, but that with what is going on in our college campuses, the left-wing indoctrination, the DEI push, and the outrageous costs of college, is making that diploma not worth the paper it’s printed on. You never hear about discrimination at Vocational Schools/Trade Schools, and yet the good and reputable ones don’t cost an arm and a leg, and you graduate ready to go to work in a respectable job making respectable money —-

    Bottom line — there will come a day, maybe not in any of our lifetimes, but it will come when going to college isn’t this wonderful goal it’s always been in decades past — and Harvard may not go begging for applicants, because it’s Harvard……..but 100’s of lesser colleges will have fewer applicants than they have openings —

    Just sayin’ — it’s possible.

    1. Richard Lowe,
      Well said.
      If I owned a company, I would take a high school grad who had good grades, has drive and a good work ethic and pay them well. Teach them the business from the inside.
      Today’s college grads, not sure I would hire some of them. Would not hire anyone with a degree in DEI or any of that other nonsense.

  10. I know my 3 white male grandchildren will be passed over for advancement, for the entirety of there life. Despite their academic skills, Finate slots will be allotted first to fill the Gay, Black, Female, Transgender, Hispanic, Disabled, etc, slots. But White Male is at the bottom, and then other social constructs will continue to filter out my grandkids.
    I have lost track of he “protected” identities, in play at this moment. But White male, will never get into that exclusive club.

  11. There should be no serious debate that diversity in a class improves the educational experience for students. The question is whether time has finally run out on racial criteria for college admissions.

    What if a college sells itself as providing the best education? Not the best experience?

    Affirmative action, like all leftist fever dreams, is impossible to square with reality. First its race, then skin color(brownish?), then its heritage (latinex?), it devolves into sir name, 4 generation Lopez, from Iowa City, gets preference over an immigrant from Honduras who’s sir name is Jensen.

    The facts abound, affirmative action is a demonstrable failure. Look no further than the office of Vice President. Never has such a dolt risen to such a level. Only because affirmative action advances dolts because they match an arbitrary color swatch.

    1. Diversity may improve a given student’s experience in the classroom, but that depends on how you define ‘diversity.’ A good teacher, classmates who are interested in the subject and have prepared for the class, and a variety of other factors determine the ‘experience’ of students in a classroom, as does the structure of the classroom, which can range from a large fifty-minute lecture with 200 students to a small three-hour seminar with twelve students or fewer.
      I was in a ‘diversity’ of classrooms during my thirty years of teaching, and in none of them did it matter what the race, sex, or sexual orientation of the students were.
      What did matter was whether they were able to master the material, whether they were prepared to put in the work to do so, and whether they were interested in participating. In large lectures, diversity mattered not at all; in smaller groups, it might, but unless the subject matter was directly related to sex, race, or sexual orientation, the sex, race, and sexual orientation of the students was irrelevant.
      Intelligence mattered. Prior education mattered. Personality mattered. But not race, sex, or sexual orientation, unless a student insisted on turning a discussion on the middle ages or Fascist Italy into a diatribe about race, sex, or sexual orientation, and in such cases, the experience of those in the classroom, including the teacher, was negatively, not positively, affected.
      Can we please get back to clear thinking and stop making generalizations based on wishful thinking and politically correct posturing?

  12. Affirmative action is nothing more than mandated racism. To favor one race means others have to face the injustice of discrimination.
    Can we finally live MLK’s dream?

  13. The Professor made this statement…. “There should be no serious debate that diversity in a class improves the educational experience for students.”.

    I disagree….as that statement alone uses Race as a determinant.

    The educational experience is enhanced by the inclusion of the best possible candidates for the Class….their demonstrated scholastic ability….not their skin color or ancestry.

    That being said….Race should not be used as way to deprive anyone of that opportunity.

    If one thinks certain ethnic minorities have been under served by the American Public School system….the cure is to fix the schools so all students have a proper education….and not by artificially promoting the unqualified.

    Life is filled with competition and adversity…..and opportunity if one applies oneself.

    I would suggest Doctor Ben Carson is the role model for that concept….and if you know his full life story you would understand exactly what I am describing.

    1. I disagree….as that statement alone uses Race as a determinant.

      A senior physician at my clinic was making no progress with an adolescent Hispanic patient, who had had a cardiac event a few days prior. The physician is very experienced, older than me and is a white guy raised in the Deep South with lots of conservative opinions. Frustrated with the patient, who understood English, voluntarily came to clinic, and not in distress, I was asked to intervene. I asked the senior physician to stay in the room and observe. I made the diagnosis in 5 minutes, ordered labs, a cardiac workup and called the nurse to escort the patient for urine. As soon as the patient left, the senior physician asked me how I did it. Simple: “I asked questions and listened”

      The patient presented with history and symptoms consistent with Prinzmetal angina caused by ingestion of crack provided as a sample at school by a black classmate who told him it would make him/her feel good. The patient comes from a large family of siblings, is the youngest, mother works 2 jobs to provide for the children, father is back in their original country, siblings work jobs too. Patient is trying to make friends at a largely black school, as is the case in Richmond, VA, is mocked by blacks for being Hispanic, yada, yada, yada, I know the story all too well.

      The senior physician approached the patient with bias. He kept lecturing the patient that their weight was too high, to stop eating tortillas and to learn english. The senior physician took a very confrontational approach whereas I took a nonjudgmental approach, asked questions and actively listened. It wasn’t a difficult case but because the senior physician approached the patient with his biases, and I am Hispanic who was raised in poverty and understood the situation, the patient did not respond well to the senior physician, but readily cooperated with me. I was saddened by what happened but glad I could intervene and save the kid’s life.

      In a perfect world people would be judged by the content of their character. That assumes we are a religious and moral people as John Adams described when describing the target audience of the US Constitution. James Adams / Alexander Hamilton expected Americans to be virtuous. Those type of people are few today. Bigots exist everywhere. Life goes on.

      The sincere friends of liberty, who give themselves up to the extravagancies of this passion, are not aware of the injury they do their own cause. As there is a degree of depravity in mankind which requires a certain degree of circumspection and distrust, so there are other qualities in human nature which justify a certain portion of esteem and confidence. Republican government presupposes the existence of these qualities in a higher degree than any other form. Were the pictures which have been drawn by the political jealousy of some among us faithful likenesses of the human character, the inference would be, that there is not sufficient virtue among men for self-government; and that nothing less than the chains of despotism can restrain them from destroying and devouring one another.

      – James Madison, Federalist Papers # 55


      1. Great story about how wonderful you are, but I fail to see the point. There will always be bias. Affirmative action has not ended it and now makes it worse as minorities are granted favors and whites resent it.

  14. In typical liberal fashion a favored group doesn’t do well on admission tests they stop admissions tests. I wonder if they will cease the combines so that white football players will have an easier time getting into the NFL. Why should speed tests be used to judge applicants?

    The NHL is being questioned about why there are so many whites in the league and MLB is being attacked due to a dearth of black players in this years world series and yet not a peep about the NBA having a 70% black player rate when blacks only make up 13% of the population. Why is the NHL and MLB under different rules?

    The Dems are losing Asians, Hispanic’s and whites in droves in their attempt to appease blacks to the exclusion of the rest of society. This election may smarten them up, but we shall see.

  15. Affirmative Action in higher education admissions has not aged well. The practice has increased the racial division we are currently experiencing.

    The policy is unconstitutional based on the Reconstruction Amendments. The phrase that “All men are created equal” sets a goal for the United States. Previous court rulings have danced around the fact that as MLK stated that a person should be judged on character not the color of their skin.

  16. Since these colleges…take Federal Money…then import millions of foreign students for CASH….time to END ALL FEDERAL AID and LOANS for US colleges!
    if they can pay sport coaches millions of dollars…they don’t need the federal money!

  17. time to tax all non-profits where ANYONE gets $100k+…including colleges, hospitals, non-profits. Time to END all federal aid/loans to colleges. Obviously all these defaulting loans SHOW that college educations are a BAD investment!

  18. Professor Turley just informed us of how the universities of America churn out the same woke, neurotic, compliant activist types year after year. The fact that a university would use a personality as admission criteria shows us how all students consistently leave school like robots entering the work force. They all believe one set of principles which is completely abnormal for any group to adopt. By filtering out people who think for themselves, they come up with a homogeneous group of pliable young people. The Stepford Students.

    1. having gone through the process at the very top schools with a virtually perfect white girl student….and seeing the 2nd rate kids that get in over kids with perfect SAT, extras and Grades. Something is VERY BROKEN!

  19. Justice Roberts got it right. The only way to stop racial discrimination is to stop discriminating on the basis of race. Affirmative action is, and always has been, racial discrimination.

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