“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. “There should be no serious debate that diversity in a class improves the educational experience for students.”

    Diversity when it occurs naturally can enhance the educational experience, however, when it is forced, it can create resentment and will ultimately hurt the classroom experience.

  2. I am not going to get on here and leave a long answer to why they put affirmative action in place…we already know why. My simple answer is I don’t want a dumbass doing surgery on me because of the color of their skin.

    1. Now that you mention that I also do not want a doctor near the bottom of their class operating on me either. Can we have a way to determine class rankings? -:)

      1. If they have a medical license and hold board certification in their area of specialty you can rest relatively confident.

        That is the cruelty of letting an unqualified student into a grueling professional program. They have to do years beyond getting the medical degree. If they cannot pass the boards, they are saddled with a quarter to half a million in debt that they cannot pay and a dozen years down the drain.

        If they can’t cut it, the empty spot they leave in their class is one less doctor in the field. Recruitment of qualified students who have the ability to stay the course is a tough challenge. There is a high correlation to undergraduate GPA and entrance scores and producing graduates who go on to competitive residences and who can pass their board exams. Yet, there are the non-traditional students who will rise to the task.

  3. Affirmative action has unfortunately created many substitute beneficiaries (who were never discriminated against)…and substitute paymasters (who never discriminated against anyone, -but who now are passed over, despite their qualifications).

  4. It is not uncommon for upper-income, white high school students with poor academic records to arrange for letters of recommendation to be sent to colleges from powerful people they barely know. It pays to have connections. This form of affirmative action should be discontinued.

  5. I am a retired professor from a well-rated state Morrell Act university. The affected minorities here are not the so-called african-americans nor the so-called latin americans, who never apply, but the Pacific Islanders, who here have their own fraternity. Maybe also the so-called native americans. The asian americans go to the university across the state, not applying here. My limited experience is that the Pacific Islanders are terrible students while the native americans are at least studious if rather underprepared.

    Incidentally one of the most brilliant students was a Massai from Kenya; asked the right questions.

  6. Affirmative Action has given us woke, crt, esg, and a vastly divided nation.
    The goal posts and number of whipping boys can never be stationary.
    Let that sink in.

  7. Government or institutional use of race in any form at any time for any purpose is a violation of the equal protection clause.

  8. We have done a complete 180 from when the national guard was called in to allow black students to attend school, and the current crop of ‘woke’ idiots (aka the Democratic Party writ large, at this point regardless of age, nay, in totality, now that they all follow the spreadsheet or memo they receive every morning, to make sure their talking points align – that is a regime, not a party) have dragged us backward by literal *decades* in America, in service of their own neuroses and selfishness, and that is all there is. Ignore the propaganda, look at reality, and stop voting for these cretins. Wish this comment were more illustrative of depth, but that is really all there is there is no depth to address since Obama. When a problem is as shallow as a petri dish, you don’t have to be verbose with quotation. It used to be called basic decency or common sense. Love your fellow humans. No more.

    Our modern Democratic party is run by children and pretty much intent on throwing out any logical notion of fairness. This is one of those loaded decisions – no matter which way it goes, it is going to cause an explosion by virtue of being (gasp!) debated in the first place (ha, ha, ha! Silly laws and rights that are applicable to all people in this country regardless of color or culture! The Dems can’t have THAT, when their power is on the line). Party of compassion my ***.

  9. The slaves said that all they wanted was freedom.

    That was a lie.

    From the looks of the vast welfare state, what they really wanted was any and all “free stuff” they could possibly abscond with.

    The communists (liberals, progressives, socialists, democrats, RINOs, AINOs) coddle liars, dependents and parasites.

    Most men live lives of quiet desperation…or lives of redistribution and social engineering.

  10. Why do we see the children of prominent politicians admitted to elite colleges so often? It is it because they are brilliant and high-performing? Or could it be something else?

  11. “The only diversity universities need is the hiring of conservatives on their faculties.”

    – Joe diGenova

  12. Where is the objective data showing that race based “diversity in a class improves the educational experience for students”?



    equity noun

    eq·​ui·​ty | \ ˈe-kwə-tē
    plural equities
    Definition of equity

    1a : justice according to natural law or right specifically :

    freedom from bias or favoritism

  14. Jonathan: We already are seeing what “free speech” will look like with Elon Musk in charge of Twitter–a lot of fact-free posts–and they are coming from Musk himself. In reacting to a Hilary Clinton tweet about GOP responsibility for creating the environment that resulted in the hammer attack on Nancy Pelosi’s husband, Musk tweeted yesterday: “There is a tiny possibility there might be more to this story than meets the eye”. Musk linked his post to a right-wing cite, “Santa Monica Observer”, that claims the suspect did not break into the Pelosi home but David DePape and Paul Pelosi were lovers who had met in a bar. The Santa Monica Observer promotes other conspiracy theories–including the claim that a body-double stood in for Hilary Clinton during the debate with Trump. It took only days until Musk turned facts into pretzels by promoting this fact-free conspiracy theory. But Musk isn’t the only one to promote baseless claims about the attack on Pelosi. Newsmax host Greg Kelly suggested that Speaker Pelosi even “staged” the attack.

    I take no solace in predicting (see my comment yesterday) that a Musk-owned Twitter would be a platform for all sorts of false conspiracy theories. Musk’s decision to peddle a false conspiracy theory about the attack on Paul Pelosi is a worrisome indication of what eliminating “content moderation” on Twitter will look like. Is Musk’s conspiracy theory tweet what you had in mind when you predicted Musk would bring “free speech” back to Twitter?

    I take no solace in predicting what would happen when Musk took charge of Twitter. And I hate to compare myself with the Donald. But it appears I am also a “stable genius”.

    1. Free speech allows for “conspiracy theories.” After all, theories are opinions that are yet to be proven or disproved. The remedy for an assertion that something is factually incorrect, is to prove that it is factually incorrect. You do not disprove a false assertion by prohibiting it from being made.

    2. Let’s see — Which is worse, a Twitter full of “false conspiracy theories” (according to you) or a Twiiter where only one lie is allowed? You are far from a stable genius.

    3. Outstanding post, Dennis. While I agree you are a “stable genius”, are you also in “astonishingly good health”, too? In addition to the lie about Paul Pelosi’s attack being based on a homosexual hook-up, Twitter users are now spewing the “N-word” freely–over 500% increase in such posts. Why didn’t Turley address this? Wait. I know the answer to that one–it’s not on the Fox list of topics he’s paid to promote.

      1. Did you bother to learn that almost the entirety of those slurs were generated by 300 accounts? Oh, I bet you didn’t. You did not get that info for your talking points today.

    4. “will look like with Elon Musk in charge of Twitter–a lot of fact-free posts–“

      Twitter has been banning the truth and pushing lies. I wonder if Dennis still thinks the pee video was real. He makes so many errors on fact that it wouldn’t be surprising.

  15. Why isn’t the failure/drop-out rate of race-based admitted students taken into consideration at this point. It has been noted that pushing not-well prepared or qualified students into an academic situation leads to, at least, two results; 1) a higher drop out rate of students overwhelmed by academic and social requirements above their ability and 2) the lowering of academic standards or the passing of less then stellar students in order to maintain that delicate false equilibrium of “racial balance”. The free market had begun to work well to improve the lot of minorities as they had begun to improve their own economic situations prior to the 60’s Great Society legislation that has, instead, held many in an economic jail of utter dependency on government handouts – a generational a mindset of sorts, if you will. Now we witness many entering college, taking out loans, dropping out or being urged to study in such questionable roads of study as gender issues, racial issue etc, most of which leaves them ideologically charged but academically poor in general knowledge. The best path forward is PURELY on merit. Leave the social engineering in the faculty lounge where it can be studied as a failed concept.

  16. “Harvard University’s admissions policy as an example of how race can be one of a number of diversity elements.”

    Evaluating an individual on the basis of race is racism. It matters not whehter race is *the* factor or one of countless. It’s still racism. And it matters not whether race is used to exclude or include minorities. It’s still racism.

    The mental contortions performed to evade that basic fact illustrates a profound intellectual dishonesty and an inability to think in principles.

  17. There should be no serious debate that diversity

    Diversity of individuals, minority of one… i.e. Baby Lives Matter (BLM).

  18. We’ve been subject to decades of affirmative action in education placing merit on the sidelines, time to eliminate it and show us what we got for our money? If the constant whining of “being oppressed, safe spaces, pay for my loans, shouting down speakers, eliminate testing” is what we got, I think we’ve been cheated?

Comments are closed.