Affirmative action is dead. Or is it? Chief Justice John Roberts wrote a deceptively clear majority opinion in SFFA v. Harvard, which appears to hold that the race-conscious affirmative action programs of Harvard University and the University of North Carolina violated the equal protection clause of the Constitution and Title VI of the Civil Rights Act. His plain language led journalists and legal commentators to proclaim that Roberts overruled precedent on affirmative action, held that diversity is no longer a compelling interest, and categorically banned the use of race in higher education admissions. That is an incorrect reading of Roberts’s opinion.
A better reading leads to the conclusion that Grutter v. Bollinger, a 2003 case upholding race in admissions, is still good law, diversity remains a compelling interest, and the narrow use of race, albeit in limited circumstances, continues to be permissible. Undoubtedly, universities must rethink and change their admissions policies after Harvard. But affirmative action is not dead, as I will explain.
Before I do, discussing a curious, even disturbing aspect of Roberts’s opinion is essential. It’s something missing in his opinion—or, rather, who is missing. In a case where the plaintiff represents Asian American students alleging racial discrimination, Roberts barely mentions them. The chief justice doesn’t refer to the Asian American claim of discrimination in his issue statement, and Asian Americans are not central to the reasoning and holding of the case. He refers to Asian Americans mainly to argue their “race” is an arbitrary category. Discussion of Asian American claims is relegated to a couple of footnotes. If a person did not know the case background and read the opinion, they would have no idea this was about Asian Americans. Roberts deleted Asian Americans from their own narrative.
As context for Roberts’s opinion, consider Justice Sandra Day O’Connor’s opinion in Grutter upholding affirmative action, where she held that race could be a plus factor in higher education admissions but applied the strict scrutiny test reserved for laws or policies that explicitly consider race. Under strict scrutiny, the state must have a compelling interest in the race-conscious policy, and its use must be narrowly tailored or necessary to further that compelling interest.
In Grutter, O’Connor held that the University of Michigan Law School’s affirmative action policy survived strict scrutiny. She determined that student body diversity—of which racial diversity can be a component—is a compelling interest. Specifically, she asserted that educational benefits such as the promotion of “cross-racial understanding” and the breaking down of “racial stereotypes” that flowed from diversity make it compelling. Notably, O’Connor deferred to the judgment of colleges and universities that diversity has compelling educational benefits.
Regarding the narrow tailoring part of strict scrutiny, O’Connor allowed that race as a plus factor could be narrowly tailored to further diversity. She contrasted plus factors with quotas. Race as a plus factor means a slight boost for an applicant who can add to the university’s diversity needs. Race as a quota, on the other hand, means admitting students of a particular race to meet a numerical goal. That fails narrow tailoring.
However, O’Connor did permit schools to admit a “critical mass” of students of a racial group, a number necessary to provide the benefits flowing from diversity. A critical mass differs from a quota because it is not set. It can and should vary from year to year. Finally, in a sentence that O’Connor probably regrets including, she casually mentioned that she expects race will no longer be needed in 25 years.
Twenty-two years later, Roberts took Grutter and gutted it much like he did with the Voting Rights Act in 2013’s Shelby v. Holder. However, he did not overrule Grutter. Unlike how Justice Samuel Alito explicitly mentions multiple times in his abortion decision last year, Dobbs v. Jackson, that the 1973 Roe decision and the 1992 Casey ruling are overruled, Roberts does not state that Grutter is overruled. Grutter still stands as precedent, which is why Justice Clarence Thomas wrote that Roberts’ opinion “effectively overruled Grutter,” not that it actually did so.
So, what did Roberts do to Grutter if he did not overrule it? He essentially made the same move the Court made in Casey regarding Roe. In Casey, the Court upheld Roe’s “core principles” while jettisoning the trimester framework and permitting more state restrictions on the procedure. Casey also substituted the undue burden test for determining whether an abortion restriction violates a woman’s right to choose. Similarly, Roberts kept alive one core principle from Grutter while jettisoning virtually everything else, severely constraining how race can be used in admissions.
So, what aspect of Grutter survived Roberts’ hatchet job? Diversity as a compelling interest survived. Roberts never declares that “diversity is no longer a compelling interest.” Comb through his opinion, and you won’t find that statement or words to that effect. Nor did he declare that race can never be used in admissions. He stated that the educational benefits of diversity proffered by Harvard and UNC “are commendable goals, but not sufficiently coherent for purposes of strict scrutiny.” He lambasted educational benefits such as “producing new knowledge stemming from diverse outlooks” for being too vague and amorphous to justify diversity as a compelling interest. But he did not scrap the broader goal of diversity itself.
Roberts engaged in hair-splitting by differentiating between diversity and its educational benefits. Understandably, many commentators concluded that Roberts said diversity is no longer compelling. But there is a meaningful difference between the statement, “diversity is not a compelling interest,” and the statement, “amorphous educational benefits of diversity are not sufficiently coherent to make diversity a compelling interest.” Why? Because Roberts leaves the door ajar for universities to devise measurable, quantifiable educational benefits of diversity to justify the use of race.
Moreover, understanding that Roberts’s opinion reaffirms diversity as compelling is vital to protect Diversity, Equity, and Inclusion programs, or DEI, in higher education. A holding that diversity is not compelling, or worse, even illegitimate, could have subjected those programs to constitutional challenges.
With that understanding of Roberts’ opinion, race-conscious policies are not categorically barred after Harvard. However, schools must comply with a new strict scrutiny standard if they use race as a plus factor in admissions. The new standard requires that universities provide an “exceedingly persuasive justification that is measurable and concrete enough to permit judicial review,” and there must be “the most exact connection between justification and classification.”
That means three things. First, if a school wants to use diversity as a compelling interest, it must develop measurable learning outcomes that flow from a racially diverse student body. This will require consulting with educational researchers, who may soon find themselves fielding numerous calls and emails for their services.
Second, the school must refrain from using race to harm another racial group. That seems to mean that any use of race cannot dramatically affect the racial composition of an entering class. In other words, using race as a plus factor for Latino students cannot be done on such a scale that it significantly decreases the admission rate for Asian Americans or whites.
One way for schools to avoid a negative impact is to expand the size of their admitting class to ensure that students are not negatively affected by the use of race. Towards the end of the admissions cycle, Harvard could assess the incoming class’s racial composition. If it appears that the use of race for underrepresented students resulted in fewer white students being admitted, then Harvard could simply eliminate the adverse racial impact by admitting more students.
Eliminating the negative impact on other groups by increasing enrollment would not result in a zero-sum trade-off. The use of race would ultimately benefit Asian Americans and white students, as more of them would be admitted. It’s the proverbial win-win situation. Of course, an elite university like Harvard will likely not want to dramatically increase class size if they can avoid it. But that’s a choice available to Harvard. Its administrators must decide based on their values, priorities, and the strength of their commitment to diversity.
Third, any use of race must have a durational limit. So, Harvard must include a termination date for its use of race. Then what? Could Harvard reinstitute race-conscious affirmative action somewhere down the road if it determines that specific learning outcomes are being hampered without robust diversity? That is unclear. But that is a question for the future. It seems clear that universities cannot ignore time limits as they did with O’Connor’s Grutter opinion.
One last point about the compelling interest requirement. Diversity may not necessarily be the only compelling justification for using race in admissions. There may be other justifications that the Court would deem “compelling.” Two Court decisions could guide university lawyers in this respect. In Richmond v. Croson, a case involving race-conscious affirmative action programs in government contracting, the Court ruled that state actors have a compelling interest to assure that “public dollars…do not serve to finance the evil of private prejudice.” Otherwise, state actors would become “passive participants” in private racial exclusion and discrimination.
Similarly, the Court in Palmore v. Sidoti stated, “The Constitution cannot control…[private] prejudices, but neither can it tolerate them. Private biases may be outside the reach of the law, but the law cannot, directly or indirectly, give them effect.” Given that all public and private universities rely on federal and state funding, they may want to think about how they may be “passive participants” in private prejudice and racism, and then take the necessary steps to assure that public money does not serve to finance the evils of private racism. For example, numerous studies have demonstrated that pernicious racial stereotypes about African American intelligence actually lower test scores for bright African American students. If universities fail to account for the measurable effects of “stereotype threat” caused by private racist beliefs, then they would be giving effect to private racial biases. To avoid becoming a passive participant in unfair racial exclusion, universities may need to use race as a plus factor in admissions.
So, what are race-neutral admissions policies that universities could adopt? After all, they should be favored because they are easier to justify under equal protection. They are rarely subject to strict scrutiny, so schools may employ such policies without having to comply with the new “exceedingly persuasive” standard. Below are four race-neutral options.
First, according to Roberts, considering an individual student’s actual, concrete experience with race and racism counts as race-neutral. He wrote that “nothing in his opinion should be construed as prohibiting universities from considering an applicant’s discussion of how race affected his or her life, be it through discrimination, inspiration, or otherwise.” The key, for Roberts, is that universities tie “a benefit to a student who overcame racial discrimination…to that student’s courage and determination.” Since considering a student’s experience with racism or race is not a racial classification, universities are not subject to strict scrutiny requirements and durational limits.
Second, I suggest that universities may still provide a plus factor for Native American students and justify it not as a race-conscious policy but as a race-neutral one. This argument bears some explanation. I contend that it is race-neutral to provide a plus factor for Native American students based on their membership or eligibility for membership in a Native American tribe. Membership in a tribe is not race.
To understand why, it is necessary to know what Roberts means by “race.” He equates “race” with “the color of one’s skin,” a physical trait that is irrelevant and says nothing meaningful about a person. Defining a person or group by a meaningless trait is arbitrary, which makes racial discrimination inherently arbitrary. Under Roberts’ colorblind principle, the goal of ending the use of race is ultimately the goal of ending arbitrary decision-making.
Native American status is different from race, according to Roberts himself. We know this because he joined Justice Amy Coney Barrett’s majority opinion in this year’s Haaland v. Brackeen, upholding the constitutionality of the Indian Child Welfare Act. In her opinion, Native American status under the Constitution is categorically distinct from race.
Native American tribal status is not an arbitrary way of defining a person for two reasons. First, Native American tribal status is akin to citizenship status, not status based on an irrelevant physical trait. Barrett in Brackeen refers to Native American status as actual or eligible membership in sovereign “Indian Tribes,” not as race. Why? Because the Indian Commerce Clause of Article I of the Constitution states that Congress has the power to “regulate Commerce…with the Indian Tribes.” The Court has interpreted that clause to mean that Congress has power over not only economic relations with Indian Tribes but over “Indian affairs” more broadly. By “tribes,” the Court interprets that term to mean virtually the same thing as nation-states. For constitutional purposes, then, Native Americans are defined by their membership in semi-sovereign nation-states, not by the color of their skin.
The colorblind principle is simply inapplicable to Native American tribal status. The colorblind principle’s central goal is to eliminate race from government decision-making. But, the Constitution, through the Indian Commerce Clause, does not envision that the United States’s relations with Indian Tribes will or should end. It envisions the permanence of Indian tribes. Native American tribal status is as permanent as the Constitution itself.
Second, the Court acknowledges that Native American tribes have their own culture. The ICWA is based entirely on recognizing and preserving Native American culture. It is about keeping Native American children with Native American families to preserve their Native American cultural identity. While no culture is associated with skin color, a culture is associated with Indian tribes. And cultural identity, unlike skin color identity, is worth preserving, not eliminating. John Roberts’ Constitution is colorblind, not culture blind.
Moreover, Native American tribes have a special constitutional status, unlike other nation-states. The Court has recognized a special “trust relationship” between Native American tribes and the United States in which the U.S. has constitutionally-based “moral obligations of the highest responsibility and trust toward Indian tribes.” The United States, in the words, has a constitutional duty to promote the welfare of Native American tribes.
Admittedly, Haaland did not explicitly rule that Native American status is a political classification, not a racial classification, for equal protection purposes. Thus, the Court may, in a future case, conclude that Native American status counts as race for equal protection, even if it is treated as membership status under the Indian Commerce Clause. After upholding the ICWA in Haaland under the Indian Commerce Clause, the Court will unlikely turn around and strike it down on equal protection grounds anytime soon. For now, with the guidance of Haaland, there should be nothing to stop schools from treating Native American applicants as members of tribes, not as a race.
And, even if the Native American status is treated as race for equal protection, schools could assert a compelling interest, not in promoting diversity, but in promoting the constitutional trust relationship between the United States and Indian tribes. Bottom line: There are ways to justify tribal status as a plus factor in admissions that do not implicate race and the Harvard decision.
A third race-neutral option is for schools to give students a plus factor in admissions if they are a descendant of enslaved persons. For several reasons, such a policy is race-neutral and should not be subjected to strict scrutiny.
If the Court applies the logic of Justice Clarence Thomas’s reasoning in his Harvard concurrence, then slave status should be deemed race neutral. Thomas argued that the status of freed enslaved people in the United States is race-neutral, reasoning that, even though all freedmen were African Americans, not all African Americans were freedmen. And if freedman status is race-neutral, then, logically, slave status is also race-neutral. Although all enslaved persons were African Americans, not all African Americans were enslaved.
Under the equal protection doctrine, even if a law or policy affects only members of one group, such a policy is not necessarily treated as discrimination against that group. In Dobbs v. Jackson, Alito rejected the equal protection challenge to abortion restrictions as sex-based classifications subject to heightened scrutiny and asserted that the fact that only women are affected by abortion laws alone does not make them sex-based laws. Instead, for abortion laws to be treated as gender discrimination under equal protection, plaintiffs must prove that they were enacted with “invidiously discriminatory animus” against women.
Similarly, even if a descendant of enslaved admissions policy only applies to African Americans, unless it can be demonstrated that Harvard implemented the policy with “invidiously discriminatory animus” against whites, the Court would treat the policy as race-neutral and not subject to strict scrutiny.
The argument that a plus factor for descendants of enslaved people is race-neutral could be made even stronger by explicitly making it available to persons of all races, not just African American descendants of enslaved African Americans. If a descendant of an enslaved African American identifies as white, she should still qualify for the admissions boost. For that matter, schools need not limit the policy to descendants of enslaved African Americans. They could permit a descendant of any enslaved person in the past to qualify. So, a Korean American student whose ancestor was enslaved during the Joseon Dynasty period should be able to qualify.
Finally, the fourth race-neutral option is to give a plus factor to any student whose parents are immigrants from underrepresented regions. Immigration status is race-neutral, and Roberts permits schools to consider geography when admitting students and asserts that “treating someone differently because of their skin color is not like treating them differently because they are from a city or a suburb, or because they play the violin poorly or well.” If it is permissible to treat a student differently because she is from Montana instead of California, then it would seem equally permissible to treat a student differently if she and/or her family is from Central America instead of the United States.
Those four options are just a few of the many possible race-neutral policies for promoting student body diversity in higher education, including so-called 10 percent plans or eliminating legacy admissions. If schools are as genuinely committed to diversity and inclusion as they say they are, they should take all the necessary, affirmative, legal steps to make good on their commitment.