Affirmative Action Is About to Face a Judicial Assault

It will survive by going further underground.

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Harvard University Emily Hsieh/iStock/Getty Images Plus

We are nearing rulings in the first big affirmative action case of the Trump era: Students for Fair Admissions v. Harvard.

Lawyers for SFFA and Harvard will make closing arguments on Wednesday, with a decision is expected this spring. Whatever the ruling by U.S. District Judge Allison D. Burroughs of the U.S. District Court for Massachusetts, the case is expected to eventually reach the Supreme Court.

Conservatives hope, and liberals fear, that a right-wing Supreme Court bolstered by a pair of Trump nominees will soon issue a decision spelling the end to affirmative action. But examining the legal history of affirmative action tells a different story. Even if a stable conservative majority uses SFFA v. Harvard as a platform to dismantle admissions programs that explicitly take race into account, affirmative action will not disappear. It will, though, be driven underground—with ever-less overt uses of race.

Affirmative action emerged in the 1960s as an attempt to undo the effects of racial discrimination. Yet, as practices that sought to level the playing field for racial minorities became challenged by white applicants, affirmative action shifted from programs explicitly based on race toward those in which race has been far less conspicuous.

Back then, as now, some predicted that affirmative action would soon be gone for good. The Association of American Law Schools told the Supreme Court in 1977 that if a challenge to affirmative action succeeded, “no consideration may be given to race, either explicitly or by indirection.” But affirmative action did not end—it embraced indirection.

In the landmark 1978 case Regents of the University of California v. Bakke, the Supreme Court outlawed racial quotas but allowed the use of race as one factor among many to ensure a diverse student body. Affirmative action thus won the day not as a policy promoting social justice for racial and ethnic minorities, but as a policy promoting educational diversity for all students. This is the basis of our current legal regime around affirmative action.

In the most recent major ruling on the issue, 2016’s Fisher v. University of Texas, the court upheld race-sensitive admissions policies at the University of Texas–Austin on a 4–3 vote. Justice Anthony Kennedy, who had never before voted to uphold affirmative action, specifically endorsed U.T.–Austin’s indirect reliance on race. “[R]ace is but a ‘factor of a factor of a factor’ in the holistic-review calculus,” he explained, adding that “race, in this indirect fashion, considered with all of the other factors … can make a difference to whether an application is accepted or rejected.”

The Supreme Court has for decades struck down admission programs setting aside seats for racial minorities or automatically awarding points on the basis on race, while upholding programs that consider race in more subtle and indirect ways. There is a logic to these decisions: If a direct reliance on race is deemed constitutionally problematic, then a diminished reliance on race must be considered less problematic, if not unproblematic.

Even some conservative justices who reject explicitly race-based affirmative action have bought into this logic to a degree. They have been open to measures that appear “neutral” on their face yet implicitly consider race and disproportionately benefit racial minorities. Individual justices have thus offered approval of alternatives to race-based affirmative action, including intensifying out­reach and financial aid efforts, placing greater weight on socioeconomic factors, introducing and uncapping “percent plans” (which increase diversity in state universities by accepting top students from state schools that are often de facto segregated), and de-emphasizing standardized test scores.

This last option, de-emphasizing standardized test scores, is promising in part because it aligns perspectives from the left and the right. Progressives have long criticized the rise of “testocracy” in college admissions—a system in which standardized test scores are the most important measure of merit, and a heavy reliance on test scores benefits mainly wealthy and white applicants. Standardized tests may well be appealing to those who want admissions decisions to be based on merit rather than patronage or lineage. However, progressives argue that such tests promote a narrow understanding of merit that does more to reproduce and justify social stratification than to alleviate it.

These progressive criticisms of testocracy converge with the views of some conservative justices in affirmative action cases. In the 2003 case Grutter v. Bollinger, which upheld the University of Michigan Law School’s admissions program, Justice Clarence Thomas observed that “no modern law school can claim ignorance of the poor performance of blacks, relatively speaking, on the Law School Admission Test,” arguing that “[t]he Law School’s continued adherence to measures it knows produce racially skewed results is not entitled to deference by this Court.”

In 2016, Justice Samuel Alito in Fisher v. U.T.–Austin referred favorably to Wake Forest University’s decision to “drop[] standardized testing requirements based at least in part on ‘the perception that these tests are unfair to blacks and other minorities and do not offer an effective tool to deter­mine if these minority students will succeed in college.’”

A retreat from testocracy could be a new form of affirmative action—inuring to the benefit of racial minorities without the overt use of race. The current, more right-wing Supreme Court may be willing to uphold such indirect affirmative action precisely because it does not classify individuals by race, and because any racial considerations involved are not plainly in view.

De-emphasizing tests in admissions decisions could prove fruitless if replaced with criteria that replicates privilege and disadvantage along racial and class lines. But at its best, reducing reliance on tests could launch a deeper conversation about how inequitable educational opportunities produce unequal outcomes, and a broader rethinking of what constitutes merit and how best to achieve it.

Moving away from standardized tests is likely to provoke resentment among certain segments of society, including those with the wherewithal—or resources—to prepare for tests and whose sense of fairness and worth is tied to the ability to succeed in a testocracy. Anti–affirmative action activists are already tapping into such resentment to bring lawsuits challenging admissions reform, claiming that ending tests is unfair to those who perform well on them.

But lessons from affirmative action’s indirect past can help future measures to mitigate and withstand resentment. For instance, universities should have non-racial reasons for the adoption of new admissions policies, so that something like a diminished reliance on tests does not become challenged as solely racially motivated. They should emphasize the universal benefits of diminished reliance on tests, including benefits for whites from poorer communities as well as some racial minorities.

Some selective universities have already begun to do this. The University of Chicago recently stopped requiring standardized test scores in order to “make sure [requirements] were fair to every group, that everybody, anybody could aspire to a place like UChicago.” The University of California is currently revisiting its testing requirements so as to adopt “the best procedures that are the fairest.”

Affirmative action in higher education has a historic trajectory, from race-based to racially-indirect. Justice Brett Kavanaugh’s confirmation seems likely to spell the end of affirmative action as we know it. Still, efforts to desegregate America’s universities are not about to disappear. Instead, affirmative action is about to take another step toward racial indirection.