Supreme Court Poised to Strike Down Affirmative Action?

AMAC Exclusive – By Daniel Roman

Monday, January 17 was Martin Luther King, Jr. Day. While King stood for many things over the years, the public memory of him will always be defined by his seminal speech where he told America that he had a dream. A dream that his “four little children will one day live in a nation where they will not be judged by the color of their skin but by the content of their character.” A week after the nation commemorated the anniversary of his birth, the Supreme Court took a step in the direction of making that dream a reality—agreeing to revisit the controversial issue of so-called Affirmative Action.

For decades, the Court has struggled with the question of the role of race in admissions and hiring. Well-intentioned jurists, even conservatives, have preferred muddle and compromise, recognizing the real injustices of the past. Yet the results of these half-measures – namely, the notion that racial quotas are unconstitutional but race can be taken to account on an individualized basis – have helped feed the current identity politics culture. And they have, over time, revealed a fundamental truth. You cannot run any system which takes “race” into account without defining applicants by race, and hence such policies have served to categorize applicants by race rather than diminish its relevance. Now, with a new conservative majority on the Court, there are indications the justices may be inclined to abandon half-measures and make clear that race has no place determining whether one is hired or accepted in America.

On Monday, the U.S. Supreme Court agreed to hear the appeal of a District Court ruling that Harvard University’s admissions policy did not unconstitutionally discriminate against Asian American applicants on the basis of race. Notably, Judge Alison Dales Burroughs did not in fact find that no discrimination took place. The Judge merely concluded that she was not persuaded beyond reasonable doubt that the majority of any anti-Asian discrimination occurred during the Harvard Admissions process rather than before at the high school level, or that such discrepancies, if they occurred, were a basis for striking down the Harvard policy. She would “not dismantle a very fine admissions program that passes constitutional muster, solely because it could do better.” Now, the Supreme Court is considering doing exactly that.

One reason the Supreme Court may have taken the case is because the lower court decision is remarkably thorough. Many of the factual contentions on both sides about what precisely Harvard is doing are uncontested. What is contested is what they mean, and whether that is a basis for striking them down. At almost every step, Burroughs deferred to Harvard, whether it was in accepting the explanations of Harvard’s expert witnesses to discredit those of the plaintiffs, or, in the final accounting, placing the burden of proof on those suing Harvard to prove beyond any reasonable doubt that Harvard did unconstitutionally discriminate. The very thoroughness made the problem with the decision clear. It applied a standard more common to criminal trials to a civil proceeding, setting an almost impossible standard for proving wrongdoing. It could “probably exist,” Harvard could probably “do better” to avoid discrimination, but apparently none of that was a basis to tell Harvard it had to do better, or to compensate those harmed by Harvard’s unwillingness to do so.

The case provides the Supreme Court the perfect opportunity to transform the norms about Affirmative Action and revisit what is and is not constitutional. It is not necessary for the justices to contest the factual evidence presented at the trial. The revelations from the trial, coming as they did before COVID, before nationwide riots, and before focus turned to CRT, showed an academic culture that, insulated from the wider public and accountability, had internalized social engineering as desirable and legitimate. Racial stereotypes, rather than crude caricatures, had become inherent parts of social justice discourse. Where the Supreme Court has the chance to shift the paradigm is by flipping the burden of proof. Harvard did not have to prove it was not illegally discriminating because Burroughs did not require it.

In not requiring it, Burroughs took the Supreme Court’s 4-3 2016 decision in Fisher v. University of Texas and twisted it to its most extreme possible interpretation. As might be noted, that decision itself did not even command 5 votes. Justice Scalia had died several months earlier, and Justice Kagan did not take part. While the decision likely would have been 5-4 if they had both taken part, Anthony Kennedy and Ruth Bader Ginsberg, who both voted with the majority, are no longer on the court, having been replaced by Brett Kavanaugh and Amy Comey Barrett. Unless both are willing to break with even Justice Roberts to vote with the liberals, it seems likely there is now a 6-3 majority ready to rule in the opposite direction. In his dissent in Fisher, Alito argued that “if a university can justify racial discrimination simply by having a few employees opine that racial preferences are necessary to accomplish these nebulous goals… then the narrow tailoring inquiry [of strict scrutiny] is meaningless. Courts will [effectively] be required to defer to the judgment of university administrators, and affirmative-action policies will be completely insulated from judicial review.” Justice Thomas went further, arguing that “a State’s use of race in higher education admissions decisions is categorically prohibited by the Equal Protection Clause.”

While many Americans would welcome the court embracing the clarity of Justice Thomas’ words, even adopting the position laid out by Alito would transform the issue. Alito described how the problem with present precedent is that it defers to schools—both on their claimed need for diversity programs and the lack of alternatives to racial discrimination—to such a degree that the burden of proof for plaintiffs challenging such policies is almost at the level of prosecutors trying to prove a murder or another criminal act. In fact, the technical nature of these cases makes it worse, as Justice Alito wrote, rendering these policies “completely insulated from judicial review.” If the Court now adopts Justice Alito’s position, that there may be some circumstances and some cases where race can be used in hiring or admissions, but that the onus should be on those discriminating to prove why they need to do so, it would likely necessitate dramatic changes to hiring and admissions across the nation. “Taking their word for it” is akin to legalizing quotas by a legal “back door.”

The Harvard case is a prime example of just what Alito called out. At all points, Burroughs applies the plurality standard from Fisher in such a way as to always defer to Harvard, no matter the evidence against the school, provided Harvard can provide one expert witness with one alternative explanation for any phenomenon. It is exactly what Alito warned about in 2016: in practices, it effectively places the admissions practices beyond judicial review. Simply voiding the decision and ordering the District Court to revisit the case, this time placing the burden of the argument on Harvard would send shockwaves through the country.

Daniel Roman is the pen name of a frequent commentator and lecturer on foreign policy and political affairs, both nationally and internationally. He holds a Ph.D. in International Relations from the London School of Economics.