Jurisprudence

How the Latest Front Attacking Affirmative Action Might Backfire Against the Harvard Case

Pedestrians walk past a Harvard University building.
Pedestrians walk past a Harvard University building on Aug. 30 in Cambridge, Massachusetts.
Scott Eisen/Getty Images

U.S. District Court Judge Allison Burroughs is expected in the coming weeks or months to release her opinion in the landmark Students for Fair Admissions (SFFA) v. Harvard affirmative action case.

The case could turn on the court’s view of a “colorblind” alternative to affirmative action. As other plaintiffs have done in previous affirmative action cases, the SFFA plaintiffs argue that such an alternative approach focused on social class will preserve diversity and fairness. Scholars and pundits have written in public forums on the limits of this approach. They’ve also pointed out that there is nothing “colorblind” about using class as a proxy for race.

So far, though, scholars have missed a key new front against affirmative action opening on the other side of the country, one that would make any such “colorblind” option obsolete just as more traditional modes of affirmative action are dismantled by the courts. If the Massachusetts court endorses a so-called colorblind alternative, it might be short-lived, which should call into question any claims that these alternatives would preserve campus diversity.

The second front stems from affirmative action opponents in California, who are claiming that these “colorblind” methods are racially attentive and thus violate the Constitution. In November, Richard Sander and George Shen brought a lawsuit against the University of California to force campuses to hand over admissions data. Sander, a UCLA law professor, is famous for his book Mismatch, which claims that affirmative action places students in elite institutions even though they would be more successful at less-selective schools. The lawsuit might seem innocuous—after all, Sander has filed cases in the past for data that haven’t turned into litigation challenging specific admissions policies. This time, though, Sander plans to use the data as a basis for a lawsuit against the University of California system for using race as a factor in admissions. Even if the University of California fails to provide the data, Sander told me in a recent interview that he and Shen will likely move ahead with a lawsuit anyway, hoping to gain the necessary evidence through the discovery process. Sander might bring this lawsuit within the next six months. [Update, May 3, 2019 5:16 p.m.: Sander says that the intent of any potential lawsuit would not be to challenge what he sees as genuine race-neutral admissions policies used by University of California schools in the past, but rather to challenge UC’s actual practices as violating its own ostensibly race-neutral policies. Specifically, Sander says he is considering challenging holistic admissions policies the system adopted in 2007 that he describes as surreptitious racial preferences, citing evidence from a 2014 internal UCLA report.]

In at least one regard, the potential lawsuit against the University of California would mirror the Harvard case. Sander and Shen say they plan to use Asian American plaintiffs. But one glaring difference is important: Public universities in California already work under an affirmative action ban. Since California voters passed Proposition 209 in 1996, University of California campuses have carefully crafted “race-neutral” policies that try to sustain underrepresented minority enrollment. These practices try to find ways to capture race without directly asking for students’ racial identity in the admissions process. In sum, Sander and Chen plan to challenge whether some of these practices violate Proposition 209.

What makes this potential case so important is that it could undermine important arguments put forth in the Harvard case. While the bulk of the media attention focuses on whether Harvard discriminates against Asian Americans, the fundamental question of the case hinges on whether Harvard can achieve racial and ethnic diversity through “race-neutral” policies. In this respect, the Harvard case is a natural outgrowth of the recent Fisher v. University of Texas decision, where Justice Anthony Kennedy’s opinion placed new burdens on universities while maintaining affirmative action. In order to use race as a factor in admissions, Kennedy wrote that higher education institutions need to show that “race-neutral” alternatives are insufficient to achieve a diverse student body. SFFA claims that Harvard hasn’t met that burden.

In bringing the case against Harvard, SFFA is taking advantage of decades of experimentation with “race-neutral” policies in states with affirmative action bans. In these states, selective public colleges and universities have taken advantage of the loose definitions of “race-neutrality” and the lack of guidance issued by the Supreme Court in Fisher. These practices include using information that tracks closely with race, such as family wealth and neighborhood poverty. Some institutions ask applicants to write essays on diversity to capture students’ racial identity. Other states, knowing that high schools are still largely segregated by race, developed plans to offer automatic admissions to the top graduates of every high school in the state. “Race-neutral” policies have a mixed record, but some selective public universities have come close to sustaining underrepresented minority enrollments with these methods.

It’s important to understand how these “race-neutral” measures fit into the long game of those attempting to dismantle racial equity measures. Edward Blum, the person behind the Harvard case and Fisher, likely won’t stop with this case. In the immediate future, Blum wants to take apart what he sees as the most dramatic affirmative action practices, like those at Harvard, which allow admissions officers to see each applicant’s racial and ethnic identity and use that information in making admissions decisions. In this attack, the relative success of “race-neutral” policies in some states provides a benevolent shield against criticism that ending affirmative action will undermine black, Hispanic, and Native American access to higher education. It also helps that “race-neutral” policies bring more low-income students into elite universities, which allows Blum to claim that he is the true representative of justice. Racist attacks on equity always work best when they can hide behind claims of benevolence.

But if the Supreme Court strikes down Harvard’s affirmative action policies—as seems likely given the new conservative makeup of the court—it’s not hard to imagine that Blum and like-minded individuals will then go after the most successful “race-neutral” programs. It’s easy to expose the intentions behind these programs because—given the continued systemic harms of this country’s historic racist structures—true racial inclusion in selective universities requires careful thought about race and inequality. In places like California with affirmative action bans, it takes committees experimenting with alternative admissions factors that will uncover applicants’ racial identity with a reasonable degree of certainty.

The problem for Blum is that Sander isn’t playing by the long game. For all the criticism Sander receives for his views on affirmative action, he isn’t a stooge of the conservative playbook. If Sander’s lawsuit happens in time and something good comes out of it for proponents of affirmative action, it will be that such a case would make it harder for Blum to claim that Harvard and other schools can use alternative “race-neutral” policies to sustain underrepresented minority enrollment without facing further attack. The benevolent shield will disappear before Blum is ready.

The hard truth is that people like Blum are interested in a specific type of “colorblind” world where policies that benefit white people are “race-neutral,” while policies that try to dismantle institutional racism are “race-conscious.” For that reason, if Blum wins the Harvard case, SFFA won’t be the final nail in the coffin in the fight against affirmative action. It will be just one more step toward defining policies that strive toward racial equity as unconstitutional “race-conscious” practices.