supreme court roundup #3: affirmative action

the benefits of diversity are standardless, apparently

The day I became a baby lawyer 🥹

Welcome to the third and final day of my Supreme Court roundup! I covered the notable intellectual property cases of the Term previously—read about the copyright case here and the trademark case here—and am moving onto the controversial affirmative action decision today.

As a reminder, these roundups are not, and are not intended, to be full summaries—if you want that, go to SCOTUSblog—but are rather highlights that I find interesting and which implicate broader societal questions. I am not a “Supreme Court expert.” If you want that, I encourage you to read Jeannie Suk Gersen’s summary in the New Yorker and listen to Stephen Vladeck’s interview on Bloomberg. I also really enjoyed The Daily’s episode on how Justice Clarence Thomas came to despise affirmative action, which reflects a lot of how I used to feel.

Background

This one—fortunately or unfortunately, I’m not sure—needs no introduction. But in case you want a quick primer, find one here.

Affirmative action, as it was practiced at Harvard and UNC, is no more.¹ The reason isn’t that affirmative action disadvantaged Asian Americans or that it led to admitting “unqualified” students disproportionately by race. No—those are all questions of fact, which an appellate court like the Supreme Court does not review.

The reason that affirmative action is no more is because the Supreme Court found that the way that Harvard and UNC operated their programs were not “sufficiently measurable to permit judicial review under the rubric of strict scrutiny”² and did not draw a “meaningful connection” between the consideration of race and the school’s interest in diversity.³

Harvard’s goals, for examples, included “training future leaders,” “preparing graduates to adapt to an increasingly pluralistic society,” “educating its students through diversity,” and “producing new knowledge stemming from diverse outlooks”—all goals that were “commendable,” according to the Court, impossible to measure.⁴

“How is a court to know whether leaders have been adequately ‘train[ed]’; whether the exchange of ideas is ‘robust’; or whether ‘new knowledge’ is being developed?” Chief Justice John Roberts asks.⁵ The Court calls these interests “standardless,” especially when compared to permissible race-based programs like “discerning whether a prisoner will be injured or whether an employee should receive backpay.”⁶

Musings

As much as I may disagree with Supreme Court opinions, I admire them for one quality: the ability to flatten the issues and consequences of any case for maximum persuasive power. The justices are smart. Their clerks are smart. Which means their decisions are smart.

But smart doesn’t always mean “right.” Judges (and law professors and many lawyers) are masters at identifying their desired outcome and wending towards the outcome in writing as if merely following procedure.

That’s why it’s possible to read a decision, nod along with it, and then read the dissent, also nodding along with it. The closed universe of each opinion always makes perfect, magical sense. (Unless you go into each preparing to disagree—that’s another issue entirely.)

But real life is not easily flattened or simplified. Not all goals in life are binaries (e.g., whether a prisoner will be injured) or monetarily quantifiable (e.g., backpay). Many harms are immeasurable, in magnitude or calculation. What are the butterfly effects of slavery? Of interference with receiving federal benefits like the GI Bill? Of redlining?

I feel an overwhelming sadness when I think about those losses and the justice system’s unwillingness to remedy those past injustices because their success may not be “sufficiently measurable.” Some justice, huh.

And it’s not like the Supreme Court overturned affirmative action and now we have some sort of gaokao that all high school students will take and be evaluated using. SFFA didn’t require admissions to be race-blind. The opinion expressly left open the option of personal essays discussing race in the context of the person’s life. “A benefit to a student who overcame racial discrimination, for example, must be tied to that student’s courage and determination. Or a benefit to at student whose heritage or culture motivated him or her to assume a leadership role or attain a particular goal must be tied to that student’s unique ability to contribute to the university.”⁷

In other words, race is still a component of admissions—albeit in a subtler way. I’ve generally found that opponents of affirmative action believe that the race checkbox is a large contributor to admissions, whereas supporters of affirmative action believe that the race checkbox is just one part of a more holistic evaluation. And in the wake of SFFA, at least we can put all of this arguing over a checkbox to rest.

What used to be “checking a box” will become “racial gamification,” turning college admissions essays into a “perverse, racialized version of the Keynesian beauty contest.” And who benefits from gamification? Not the students from lower-income households who don’t have thousands to pay consultants to help them with the rules of the game, that’s for sure.

But who knows. The Supreme Court opinion has only made the college admissions process less transparent and more uncertain. Colleges will revise their admissions processes and pray that they don’t become the next target in what is now a game of whack-a-mole.⁸ Applicants who can afford essay reviewers and admissions consultants will get coached on how to racially gamify their essays. And applicants who can’t will just do as they always have done—attempt to figure things out for themselves.

But Cece, this case paved the way for the legal challenge to legacy admissions. Isn’t that a good thing?

I’m not so sure about that. Oren Sellstrom, the litigation director at Lawyers for Civil Rights, which filed the complaint against Harvard, explained: “Our complaint is based on long-standing federal anti-discrimination law that makes clear that if there are barriers that have a disproportionate impact on students of color, they need to be dismantled, unless the institution can provide an adequate justification for them. In the case of Harvard, it’s clear that donor and legacy preferences have a significantly disproportionately harmful impact on applicants of color, and there is no educational necessity for them.” (emphases added)

My wariness is because of the emphasized clauses. SFFA’s holding wasn’t about disproportionate impact on any racial groups—it was about measurability. And what is one of the easiest things to measure? Money. Donations. Costs of buildings.

We don’t yet know Harvard’s defense strategy, but SFFA essentially clears a path forward for legacy admissions programs. If Harvard can prove that the goal of legacy admissions is “sufficiently measurable to permit judicial review” and draws a “meaningful connection” between legacy/donor status and quantitative rationales such as increasing funds available for scholarships and student resources, then I’m skeptical that legacy admissions will be found unconstitutional.

Moreover, we don’t even know if strict scrutiny—the strictest level of judicial review which is applied to suspect classifications like race—will be applied to the class of “legacy/donor.” Yes, nearly 70% of legacy admits at Harvard are white, but will courts see “legacy/donor” as a strictly racial designation, like the checkbox was? When 30% of legacy admits aren’t white?

Of course, the legal challenge isn’t the only issue here. In all litigation of this magnitude, there’s the legal arena and the PR arena. An AP-NORC poll in May found that less than 20% of Americans polled thought that legacy status or donations should be somewhat or very important in admissions. Oftentimes, the PR arena is even more important than the legal arena—and even can affect the legal arena. I’ll be curious how Harvard responds to the legacy admissions lawsuit—by catering to its donors or public opinion polls?

I want to end on a less depressing note, though. Professor Harper said it best in his op-ed:

Remember that racial gamification is just that: a game. Ignore anyone who would have you believe that attending Ivy League universities — with their endowments as large as a reasonably sized country’s nominal G.D.P. — is the only path to happiness or success or racial equality. Civil rights leaders did not endure the dogs and the cold baptism of the fire hoses in the hopes that one day their children’s children could become Ivy-minted venture capitalists and management consultants. Remember that Martin Luther King Jr. did not dream of a multiracial oligarchy and that the “vaults of opportunity” of which he spoke are not hidden only behind a golden door at Yale University. There are other paths in life that do not require gaming anything. Remember that hope is wherever you find yourself. ◆

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Do you think deciding the affirmative action case based on “measurability” makes sense? Can something else besides “racial gamification” occur, post-SFFA? Do you think legacy admissions will survive, using SFFA’s logic? Let me know in the comments!

1. Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, 600 U.S. ____, 39 (2023).

2. Id. at 23.

3. Id. at 24.

4. Id. at 23.

5. Id.

6. Id. at 24.

7. Id. at 40.

8. While Chief Justice Roberts wrote extensively about why the Harvard and UNC admissions programs did not pass strict scrutiny, he gave little indication about what procedures might pass muster.