Moment Debate | Should the Supreme Court Outlaw Affirmative Action?

By | Apr 13, 2022
Debate, Opinion, Spring Issue 2022
Protesters in Washington DC in 2003


Curt Levey, president of the Committee for Justice, is a constitutional lawyer who has worked on several landmark affirmative action cases.

Valerie Strauss has covered education for The Washington Post for more than 25 years.


Should the Supreme Court Outlaw Affirmative Action? | Yes

Should the Supreme Court outlaw affirmative action in college admissions?

Yes, if what you mean is outright racial preferences, that is, bonus points for being a certain race. In Grutter v. Bollinger, in 2003, the Supreme Court said it was constitutionally permissible for schools to use race as one of many factors to achieve a broadly diverse student body. It’s when you look for what proponents would call a critical mass, but what is essentially a quota, that you run into trouble. Justice William Rehnquist’s dissenting opinion in Grutter noted that the percentage of Black, Hispanic and Native American students admitted by the University of Michigan Law School each year just happened to mirror their proportions in the applicant pool. In a lot of people’s minds, that’s a quota.

Sometimes people use “affirmative action” more broadly to mean combating elitism. It’s true, the best professional schools like to take graduates from the best colleges, and the best colleges like to take from the best high schools, and that practice can have the unintended consequence of suppressing minority representation. If you’re just trying to counter that effect with broader outreach, I don’t know who would object. And schools do that to some degree. But using racial preferences is easier.

If there are performance gaps, race-based college admissions just papers over the problem.

It doesn’t take extra money or effort to add bonus points for someone based on skin color. The Supreme Court in previous cases gave schools multiple chances to comply with the spirit of viewing race as one factor among many. But they haven’t.

The Supreme Court this fall will hear two cases alleging discrimination in admissions practices at Harvard and the University of North Carolina. What do you think will happen?

I don’t think it’ll be the end of racial diversity in education, but I think the court will create more of a bright-line rule saying you can’t explicitly use race. Harvard and UNC don’t deny that they use racial preferences along with other factors, so they’ll have to change what they’re doing. The pressure of political correctness on universities to have a racially balanced student body is so great that most of us on my side suspect they’ll find a way to achieve it.

Are the goals of affirmative action still pressing?

The top colleges and professional schools remain quite elitist, so you could say there’s still a pressing need to make them less so. Neither of my parents went to college, and I could argue that that’s a bigger disadvantage than being a minority. In that sense racial preferences actually allow schools to be more elitist, because they can say they’re diverse without being diverse in any deep way. Not that they don’t take broad diversity into account at all, but the minority students they take tend to come from professional and affluent families similar to those of the white students.

Are affirmative action’s goals in conflict with other values?

Of course. On the one hand we have the Constitution and Title VI of the Civil Rights Act, which on their face seem to forbid race-based admissions; on the other hand, our society has a big focus on racial diversity. How do we square these two goals? The Supreme Court has repeatedly found that the educational benefits of diversity are the only constitutionally compelling rationale for race-based admissions. Most people don’t believe that’s the actual rationale—they believe it’s to remedy historic
injustice—but we’re stuck with it.

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I benefited from going to a diverse college. But is that value enough to throw away one of the most important principles in our law, which is that people should be treated the same regardless of race? In a legal system where we apply the highest level of scrutiny to racial discrimination, that standard is not met by the educational benefit of diversity.

Have your views evolved over time?

I once saw a presentation showing that when affirmative action was first instituted, minority scores on standardized tests differed from those of non-minorities by a full standard deviation. By the 1980s that difference had narrowed to .6—evidence that affirmative action was functioning as a counterweight to disadvantage and racial preferences were working to level the playing field. But as the playing field leveled out, so did the narrowing. Why the gap persists is a big mystery, but it has to be addressed before students are 18. Race-based college admissions just papers over the problem.

Is the history of quotas used against Jews a factor in your views of affirmative action?

That “diversity” arguments were used to limit Jewish enrollment 100 years ago is a very good reminder of how cynical the diversity rationale is and how malleable and frankly racist it can be. There’s so little difference between saying we have to have more Black and Hispanic students and saying we have to have fewer Jewish or Asian students. And yet one is seen as noble and one as racist.


Should the Supreme Court Outlaw Affirmative Action? | No

Should the Supreme Court outlaw affirmative action in college admissions?

No­—not if you want to maintain a key mechanism for achieving a diverse student body. Definitive research over the years shows affirmative action is not just good for higher education, it’s good for American society. It gives people who have suffered disadvantage a chance to contribute in a way they wouldn’t otherwise. And a diverse college population benefits the broader society. Research shows a long list of societal and cognitive benefits: People who go to more integrated schools are more likely to live in integrated communities later on, to have friends of different groups and to look more broadly at issues. In the K-12 sphere, students at more integrated schools generally do better on test scores, if you think that’s an important metric, and are more likely to go to college.

If the goal is to have a diverse society, and to right the historical wrongs of institutional racism, then affirmative action is essential. And that goal is intrinsic to the view America has had of itself, or at least has wanted to have, since its founding.

The Supreme Court this fall will hear two cases alleging discrimination in admissions practices at Harvard and the University of North Carolina. What do you think will happen?

My guess is that this court will completely get rid of the diversity standard [the principle established in 2003 that race can be considered among a number of factors if the goal is to create a diverse educational experience for all students]. I will be very surprised if it doesn’t happen. I don’t know if schools will find some other way to foster diversity. Maybe there are ways, especially if more schools make standardized testing optional. But right-wing legal groups will be bird-dogging and challenging everything that happens, and people will pull back because they don’t want some parent group to sue them. The deterrent factor is huge. Admissions officers will say, “We can’t take this person, someone will challenge us.” And it’ll be awful.

Not if you want to maintain a key mechanism for achieving a diverse student body.

It’s heartbreaking what America’s done to itself across the board on racial issues. I worry that America is shortchanging its fundamental vision of itself. We’ve seen resegregation of communities, of public education, a movement to privatize K-12 education, which inevitably helps further the cause of segregation. I’m concerned as to how America can achieve the kind of society it wants.

Are the goals of affirmative action still pressing?

The goal of diversity is as pressing as it’s ever been. And more specifically, though there are broader views of affirmative action that take in all groups of underrepresented students, its focus is still Black Americans, who still suffer from deeply embedded generational disadvantage in the United States in a way other groups don’t. Affirmative action is one way of helping to remedy those setbacks, even though the courts have slowly peeled back the ways you can do it.

Are affirmative action’s goals in conflict with other values?

You mean, does it conflict with the goal of meritocracy? It’s a myth that colleges are meritocracies. There are no meritocracies in America. There’s always someone who comes from a more privileged background, has more money, is a legacy or who can afford SAT tutoring. The idea that you can actually treat everyone as equal is a dream. I don’t think people appreciate how colleges work.

They’re not picking people willy-nilly because of their skin color. You look for all kinds of qualities in human beings when you put together well-rounded groups. Because some people might do better on test scores or grades doesn’t mean that those are the only people you want.

Am I saying reverse discrimination never happens? It might. But it’s not the problem in America. America’s problem is the continuing effects of past and current racist practices. It’s important for societies to try to fix their fundamental flaws.

Have your views evolved over time?

If anything, seeing how nothing changes makes my views stronger. I’ve been covering education for 30 years. Looking at the demographics and dynamics of where people live, how they live and what jobs they get, I believe more than ever that this country will lose itself if it gives up on the idea of a diverse society with equity. In Sandra Day O’Connor’s 2003 opinion in Grutter v. Bollinger, she said affirmative action was still needed but probably wouldn’t be in 25 years. Wrong. It would have been nice if that were true. But America hasn’t made much progress in that time in remedying the effects of racism.

Is the history of quotas used against Jews a factor in your views of affirmative action?

The history of Jews in higher education and in admissions, the years of quotas restricting Jewish admission, always informs in my head the debate about who gets in and who doesn’t, and the question of how to structure admissions programs to get diverse groups while avoiding prejudice.

Top image: Washington DC, August 2003 (Credit: Elvert Barnes via Flickr / (CC BY-SA 2.0)


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