UVA Law Professor Explains the US Supreme Court’s Affirmative Action Decision

Q. What is affirmative action, and when and why did it come into force?

A. The term “affirmative action” can mean several different things. It can mean making every effort to ensure that people from different backgrounds are aware of opportunities, and that the processes by which people are selected for college or for jobs are genuinely open. Today, people use the term in the context of college admissions to refer to the use of race as a plus factor in the admissions process. What this means is that members of some racial minority groups get a boost within a system that assesses each candidate in a holistic fashion.

Colleges (and employers) began using affirmative action in various forms for many different reasons, including to ensure fair access, to compensate for prior disadvantage, and in the university context, to include a diverse group of students for educational reasons. However, as the Supreme Court began to decide cases dealing with affirmative action, the court limited the reasons sufficient to justify the use of race as a criterion to the educational benefits of a diverse student body and to remedies for specific instances of past discrimination.

Q. Can you describe the court’s ruling?

A. The court today holds that universities may not use race in itself as a “plus factor” in admissions. The court rejects its prior holding that student body diversity can justify the use of race in admissions because the goals that diversity aims to achieve are, in the court’s view, too “amorphous” and unmeasurable to permit courts to evaluate the universities’ programs. Of note, the court does not apply this holding to the military academies, as the interests at stake in these cases could lead to a different result. 

Earlier cases had given universities some deference or leeway in deciding for themselves how best to achieve their educational goals. That deference was always in some tension with the idea that the explicit use of race requires “strict scrutiny” by the court. Today, the court dissolved that tension, saying that it is for the court to decide whether the goals are compelling and whether they are achieved. The chief justice, who authored today’s opinion for the court, also offers two additional reasons for this ruling. He contends that given the “zero sum” nature of university admissions, it is impossible for race to be a plus factor for some applicants without, at the same time, functioning as a negative for others. In addition, the opinion claims that using race as a plus factor inevitably involves impermissible racial stereotyping.

In a dissenting opinion, Justice Sonia Sotomayor rejected the claim that using race in admissions involves stereotyping. Rather, flipping the argument, she asserted that, “It is not a stereotype to acknowledge the basic truth that young people’s experiences are shaded by a societal structure where race matters.”

Q. Why do you think the plaintiff, Students for Fair Admissions, was successful?

A. Over time, the Supreme Court has vacillated regarding what it sees as the underlying principle animating equal protection. You can see two of the central possibilities in the passage from Justice Harlan’s dissenting opinion in Plessy v. Ferguson that the majority cites today:

“[I]n view of the Constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. Our Constitution is color-blind, and neither knows nor tolerates classes among citizens.”

This passage refers to two important, yet distinct, ideas. First, it is caste or racial hierarchy that violates equal protection. Second, it is racial classification that violates equal protection. Affirmative action is not in tension with the anti-caste principle, but is in tension with the color-blindness principle. One reason that [Students for Fair Admissions] won the case is that the “anti-classification” vision has been steadily gaining ground on the court.

Law professor Deborah Hellman says even though the court had previously upheld the use of affirmative action in college admissions decisions, there was always some legal “tension” in how much of a factor race could play in the process. “Today, the court dissolved that tension,” she said. (Contributed photo)

Also important – and a site of disagreement – is the significance of the history of racial discrimination in informing what is constitutionally permissible today. Justice Ketanji Brown Jackson, who participated in the UNC case only, filed a dissenting opinion that emphasized that “[o]ur country has never been colorblind.” Given that historical reality, she argued that universities and others ought to be able to use race in ways that acknowledge that historical truth.

Q. What does the Constitution say about race-conscious admissions?

A. The Constitution does not say anything specifically about the use of race in admissions. What the Constitution says is this: “nor shall any State … deny to any person the equal protection of the laws.” The question, then, is what that text means? Does the use of race in university admissions deny equal protection? It is not an easy question to answer, as clearly that text cannot require that everyone be treated the same. Laws distinguish among people all the time. Think about a law that says that you have to be 16 to drive. In one sense, that’s age discrimination, in that young people are treated worse than older people. But I don’t think anyone thinks this law violates equal protection. So, what the Supreme Court is doing in these cases and others is developing theory (which in law we call a “doctrine”) that translates that broad language into more specific rules. 

The upshot of today’s opinion is that the reigning theory today of what equal protection demands (in the context of race) is no (or almost no) racial classification.

Q. How do you see the court’s ruling affecting school admissions in the United States?

A. At the very end of the opinion for the court, the chief justice says that while race in itself may not be considered, universities may take into account “an applicant’s discussion of how race affected his or her life, be it through discrimination, inspiration, or otherwise.” At the same time, the court emphasizes that this permission should not be taken to permit the consideration of race indirectly.

How this will operate in practice is an open question. The court stresses that the key is a kind of individualized inquiry, noting, “A benefit to a student who overcame racial discrimination, for example, must be tied to that student’s courage and determination.” This answer is not satisfying, however. The view that overcoming discrimination shows courage itself rests on a generalization, as does anything that a university considers in making a decision (good grades generally show academic ability, for example). In addition, the prior law permitting the use of race as a plus factor also required the same kind of individualized inquiry.

Interestingly, in another case decided earlier this month, Allen v. Milligan, the court upheld a lower court’s ruling that Alabama voting districts likely violated the Voting Rights Act. In so holding, the court permitted a form of analysis that is race-conscious. One might wonder how to reconcile these two cases.

There are two possibilities. First, perhaps the Alabama case is different because there was strong evidence of prior racial discrimination by Alabama. Remedying such specific discrimination via race-conscious action is permissible, but remedying more general societal discrimination is not, according to the court. Alternatively, the difference may lie in the sort of action at issue. Drawing voting districts does not require explicit racial classification, which the court in the two cases decided today does not permit.

Q. Even before the ruling, some states like California and Michigan had banned affirmative action. How have schools in those places attempted to draw diverse classes using race-neutral criteria?

A. Those states have used a variety of methods, including outreach efforts to low-income students, students from families with little experience of higher education and students from economically disadvantaged high schools. In addition, they have used scholarships targeted to low-income students, holistic review, de-emphasis on standardized test scores and the elimination of early admission. California, in particular, also guaranteed admission to one of the state universities to a small percentage of the graduates of each high school in the state.

Both California and Michigan contend in their amicus briefs that despite using these methods and others, the numbers of underrepresented minority students admitted have declined.

Q. Are there cases brewing in lower courts arguing in favor of affirmative action you think might rise to the Supreme Court?

A. Many people were speculating about what today’s decision striking down the explicit use of racial classification would mean for the deliberate use of racially neutral policies aimed at achieving racial diversity. It is noteworthy that both the chief justice’s opinion, as well as the concurring opinions of Justice Clarence Thomas and Justice Brett Kavanaugh, emphasize that universities may use race-neutral policies, like giving a plus to first-generation college students, even if they adopt these policies with the aim of achieving diversity.

Q. Why is equal protection under the law important?

A. Equal protection requires that each person be treated as an equal. It is important because from a moral perspective, each person matters equally and should be treated by the government in a way that respects her equal worth.

While this statement is one that most – perhaps all – people would agree with, it also masks enormous disagreement. People disagree about what treating each other as equals requires. To some, consideration of race in admissions violates that mandate because they think that using race, even in part, to affect decisions constitutes an insult. To others, the government can attend to race and still treat people as equals because consideration of race merely recognizes the fact that a person’s race affects the person’s life story in countless ways. One can see the debate between the majority and the dissenting opinions in this case as about these two ideas.