Will the Supreme Court End Affirmative Action?

Jonathan Feingold, a Boston University School of Law associate professor, discusses the history of affirmative action in the United States and provides details into how policies can shape race relations in higher education. He also analyzes how he thinks the two upcoming Supreme Court cases involving Harvard and UNC will play out.  

For the transcript for this episode, visit: https://www.bu.edu/articles/2022/will-the-supreme-court-end-affirmative-action/

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[MUSIC] This is Question of the Week from BU Today.[MUSIC] Affirmative action is a controversial and long debated topic with widespread implications in higher education as well as employment. Modern affirmative action policy in America dates back to the 1960s when Executive Order 10925 was implemented by President John F Kennedy as a means to reduce racial discrimination in hiring processes in the United States. The Supreme Court last heard an affirmative action case in 2003 when they ruled that higher education institutions are able to consider race when reviewing and admitting applicants. This fall, the Supreme Court is reviewing two important cases that may change the future of affirmative action policy in America. Some claim the policies that dictate how higher education institutions view applicants in regard to race has resulted in Anti-Asian or anti-white bias. While others feel that affirmative action is necessary to ensure equitable admissions in higher education. I'm Molly Callahan, senior writer at BU Today. Our guest on the pod today is Jonathan Feingold, Associate Professor at Boston University School of Law. His recent research has interrogated how and why various American legal regimes, including the equal protection doctrine, function to reinforce and reproduce racial hierarchy. Today, we've invited him to discuss the Supreme Court's upcoming review of two affirmative action cases. John, thanks so much for joining us.>> Thank you, I'm thrilled to be here.>> Okay, so let's just dive right in. Can you kind of set the table for us in terms of some of the terms that we're gonna be talking about, such as affirmative action? And explain how it factors in to these two cases before the Supreme Court.>> Sure, and to do so, we will take a little trip back in time. So most of our history, the history of the United States has been one in which most industries, professions, and sectors were designed to exclude on the basis of race and gender, sometimes class as well. Whereby white men, men racialized as white were in positions of power by design, function out of bug. Never uncontested, but certainly described much of our history leading up into the mid 1950s and 60s. And at that point, you have a shift for various reasons, including some key Supreme Court decisions that we know, like Brown v Board of Education, which chipped away at Jim Crow. And then in 1964, we had a Civil Rights Act that contained a number of provisions, including one that prohibited discrimination on the basis of race. And in some incidents have even created an affirmative duty on the part of institutions that had a history of segregation to remedy the vestiges of that legacy. Now, one thing important to know about the Civil Rights Act of 1964 is that it was deeply opposed by segregationists. And it happened to survive the longest filibuster in Senate history and became, I believe, the fifth Federal Civil Rights Act ever passed by Congress. And one of the consequences of the Civil Rights Act is federal financial assistance can be pulled by institutions that continue to discriminate. And so that leaves a number of institutions to adopt either a by court order or voluntarily a range of policies that today we would think of as affirmative action policies. And the basic design is to open up institutions to people who would have been there were the system's fair and neutral. And so these are policies happening in fire departments, in Fortune 500 companies, on university campuses. And they take a number of forms. One can be getting rid of exclusionary parts of the selection process. One could be through targeted outreach or recruitment, and another is accounting for an individual's identity. The basic logic here is you identify sources of exclusion. That could be something like racism, it could be something like sexism, and then you capture them. You know that sexism matters, and so you account for it by attending to gender. And so that's one reason why white women, just descriptively, are arguably the biggest beneficiaries of affirmative action. On the other hand, if you know racism matters, you have to account for it, and you can do that by just seeing and recognizing race. So in a sense, affirmative action policies are what today we would think of as anti-racist reform, just being honest with the way the world works and taking steps to try to alter that, so that you promote equal opportunity. And by doing so, you actually increase merit and neutrality. Because you're removing or countering all of these systemic structural forces that have been historically excluding folks who should have been there from the beginning. Harvard and UNC both employ a particular sort of affirmative action policy. One component of it is what many people would refer to as a race conscious admissions policy. So they both have holistic admission. So for every student, they consider a range of factors. One factor is the student's racial identity. We'll get into more, I'm sure. But the only other thing that I'll add is that, this sort of policy is supported by 40 years of Supreme Court precedent that says you can do precisely what these two institutions are doing so long as it's in a holistic sort of process.>> So you mentioned as part of this sort of judicial and legislative history, we have Brown v Board, the Civil Rights Act. Another big case in this legal history is Grutter v Bollinger, which the court decided in 2003. And I'm wondering if you could kind of briefly explain that case and what the court's holding was.>> Sure, so Grutter v Bollinger, and then there's also Gratz v Bollinger, were two cases in which you had white plaintiffs who challenged the admissions policies at the University of Michigan's undergrad campus and their law school. Grutter is the case that involved the law school, and it's the one that is arguably more well known. And it is the case that the plaintiffs in the Harvard and UNC litigation are asking the Supreme Court to overturn. And in that case, what the Supreme Court ultimately said was that it is permissible for a university, for a public university under the 14th Amendment, to consider the race of individual applicants. So long as that was done in a holistic admissions process in which the university considered a number of factors, not just race, and so long as it was done to promote the compelling interest of student body diversity. And the only other thing that I'll add, which sort brings us back into the time machine, is that Grutter and Gratz were not the first case in which you had white plaintiffs challenging race conscious admissions. And arguing that because race conscious admissions or because universities considered an applicant's race, that constituted either unlawful or unconstitutional discrimination. The first case to reach the Supreme Court was a case called Bakke vs Regents of California, that implicated UC Davis' Medical School. And I get back to this, in part, because I actually think that history is relevant. And so UC Davis opened its med school in 1968, just four years after the Civil Rights Act was passed. First year it was opened, 50 students, 47 were white, and 3 were Asian American. By 1971, the school was admitting 100 students here. But it recognized that it's initial admissions policy was simply rewarding inherited advantage, and therefore overlooking students who were qualified, talented, and had a ton of potential. So they adopted a special program that was targeted for, quote unquote, disadvantaged students, and it produced meaningful results. Over the subsequent three years, there were 63 students of color, including 12 Asian Americans adopted through that special program. Only 44 students of color in the same year adopted through sort of its standard process. That program, which was, in a sense, very modest attempt to try to neutralize or counter the inherited advantage that was otherwise shaping the process, was challenged by this guy named Allan Bakke. He was a little bit older than your standard med school applicant, and he was rejected twice from Davis. And his claim was that this affirmative action policy, because it is accounting for race, it is discriminating against me. Now, the interesting side story is, it's likely that Allan Bakke was subject to discrimination, but it's likely that it was age discrimination. That at the time, med schools were not, they were somewhat open about the fact that age actually could be a notch against you. And now that opinion led to a split decision, but the controlling sort of important opinion was the conclusion that student body diversity could constitute this compelling interest. And the other important piece about the opinion that's not talked about all that much is that, five justices concluded that any consideration of race should be presumptively unconstitutional. And this is an important moment because less than 15 years, or I guess by the time of the decision about if less than 15 years after the Civil Rights Act of 1964 has passed, the Supreme Court is saying that, we are going to be just as skeptical of affirmative action programs designed to remedy Jim Crow as we are of Jim Crow itself.>> Yeah, and I think to your point, too, and correct me about which case this was, I think it was Gruder, but one of the justices mentioned that eventually this is some race-conscious admissions is something that we should not have to do anymore. This is something that we should be able to sunset at some point. And it seems like we're not there, yet.>> Yes, so Gruder, which was the 2003 decision. Justice O'Connor who wrote the controlling opinion just threw in what is called dicta. So it's not controlling, it's not the law, but it's just commentary in the opinion, in which she's in a very aspirational sense, said that hopefully in 25 years it's no longer necessary to account for race. Essentially hopefully we, in 25 years, a generation down the line, we actually are post-racial. I think that anyone who's living in America right now would know that this notion of post-racialism, we're getting to a place in which race does not matter. In which racism is not shaping so many, if not all, aspects of our lives, is a nice aspiration, but it's something that we're nowhere close to achieving. One reason why we're not close to achieving is because every time there are moments of racial progress, we see immediate backlash. And so we see that right now, and all the backlash to the summer of 2020 in which there was a national racial reckoning, and everything that's come since. But also in the decade following the Civil Rights Act, you had, essentially, strategies that were shifting to, well, we weren't able to prevent the Civil Rights Act from being passed, well, how can we neutralize it, how can we defuse it? And one of the arguments that immediately enters is to suggest that just seeing race, just accounting for race, all these remedial programs, they are just as bad as the policies that they are designed to solve and to remedy. And you can see sort of that continued effort to thwart the remedies necessary to actually realize multiracial democracy. And that some of the organizations that are supporting the plaintiffs in the lawsuit against Harvard and UNC are some of the same entities that filed and were involved in early litigation after the Civil Rights Act was passed.>> Totally, yeah, and thank you for that excellent segue right into the next thing I was gonna ask you about which is, you've laid a really beautiful foundation for the history on which the UNC case and the Harvard case are kind of born from. But I wanna talk about these two cases, more specifically now. So can you talk a bit about who's behind the party suing Harvard and UNC, and what are they, as the plaintiff, asking the court to do?>> The name of the entity suing Harvard and UNC is this organization called Students for Fair Admissions, which I'll refer to as SFFA. But, really, this is just a corporate entity that serves Ed Blum. And who is Ed Blum? Ed Blum is, in a sense, a very entrepreneurial anti-Civil Rights activist. He's the same person that spearheaded litigation that ultimately gutted a section of the Voting Rights Act in 2013. He has, in various sectors, through various ways, in various states, systematically targeted race-conscious remedies. From this slick, rather radical viewpoint that any time the government or a private entity sees or attends to racial inequality, that is actually a moment of racism. And SFFA has become the vehicle that Ed Blum uses to continue his quite committed and sustained attacks on affirmative action. Prior to this case, Ed Blum was the benefactor that supported the last affirmative action challenge that reached the Supreme Court in 2016, which was a challenge against University of Texas. That was in challenge involving a white woman. This woman named Abigail Fisher, who by all accounts was rather mediocre student, and ultimately lost at the Supreme Court. I'm pretty sure that she, and maybe her father, as well, have actual formal roles within Students for Fair Admissions. But when they lost in 2016, they then, through SFFA, began filing a number of other lawsuits against schools across the country, even another one against University of Texas, and two of those lawsuits are the ones that are now before the Supreme Court. And the only other thing that I'll add with respect to the question of, well, who is suing Harvard and UNC? So I think it's also helpful to see or ask, who is backing the litigation through amicus briefs? So they're public statements that are on the side of the party's trying to eliminate affirmative action. And it's a host of very right-wing institutions, including the Pacific Legal Foundation, who's funded and deeply intertwined with the Heritage Foundation, and other right-wing think tanks, the Claremont Institute, the Attorney General's from states like Texas and Oklahoma. And in a sense, it's the same coalition that right now is also targeting voting rights, reproductive freedom, the rights of LGBTQ folks, classroom censorship laws, and book bans. And so that, in sort of a narrow and broader sense is who is on the side of the party that is targeting and trying to outlaw race-conscious admissions.>> Some of this kind of anti-affirmative action rhetoric can get pretty close to sort of, quote unquote, reverse racism rhetoric. And this idea that if the scales are equal, then the people who have historically benefited from them being unequal are suddenly at a disadvantage. And I wonder if we could just unpack that.>> Yeah, and so I think that you don't even need to qualify your statement. And so since 1964, so since gender-conscious, since race-conscious modes of affirmative action were first implemented, the response from right-wing entities, and individuals, and forces was that this is immoral because it is just another form of racism. And that trades on what legal scholars would refer to as color blindness. Which is the logic, first of all, that race doesn't matter until we sort of consciously see it or think about it. And it is therefore bad, again, morally and lawfully to think about or to see race. Now, again, for anyone who is living in the United States right now, it's very hard to square this notion of color blindness, on the one hand, with the reality of all the ways in which we are constantly reminded about how race and racism shape every sort of contour of our private and public lives. But at the same time, color blindness is an aspiration that most Americans gravitate towards, and most have been socialized in. And so there is an allure to this notion that, just by seeing and thinking about race, we're doing something that's not just unlawful but also morally wrong. But, as you said, to sort of uplift color blindness as a sort of prescription, is to erase all of the ways in which an individual's racial identity, either benefits or disadvantages them. And so a different way to ask the question is, okay, well, if you have a purely color-blind or race-blinded admissions process, does that mean you have a process in which race is somehow irrelevant? And the answer is, of course, it's not. If you don't account for a race, then you're simply going to be rewarding individuals who had the most inherited racial advantage.>> Really well said, thank you. Okay, so let's get back to the specific two cases before the court this term. The plaintiffs claim that there's an anti-Asian bias, specifically, as it relates to its affirmative action challenge at Harvard and at UNC. Can you explain how those two, what the relationship is?>> Yeah, and let me enter this two different ways. First, just as a matter of strategy. So if we're thinking about, so we're SFFA, if we're Ed Blum, our goal is to outlaw race consciousness. We just, for whatever reason, it's our personal belief that there's something bad about race consciousness, and affirmative action is our target. We know that when you have white plaintiffs, you can almost get there, but you can't get there all the way. And so, who do you want as the face of your anti-affirmative action campaign? And you don't have to ask me, Ed Blum is on the record of saying, I needed Asian Americans. And so he, after Fisher, he went around recruiting Asian American plaintiffs, faces, to be the face of the anti-Affirmative Action Movement. And that does a couple of things. One is it can provide this veil of Or it can mask what is at road an anti-Civil Rights agenda by centering a community of color who has experienced the history of discrimination as the putative victim. But it also, because it's trading on more the idea of sort of Asian American as opposed to actual Asian Americans, it is, one, legitimizing the methods that we use to admit students, like heavy reliance on standardized tests that we know have a racially disparate outcome. It legitimates those, because it implicitly, if not explicitly, says, well, this community of color was able to overcome their discrimination. And so, presumably, if other groups aren't, it's because of them, not because of any host of social, structural, or individual forces that we would think of as racism. And so part of the gambit is that if you're going to high achieving Asian American students, it's more sympathetic plaintiff that can also legitimate the absence of other students of color. And, in a sense, sort of just make the case feel as if affirmative action is just pitting Asian Americans against other students of color. So that's the narrative that Ed Blum and SFFA are trying to cultivate, because it renders it easier to attack affirmative action morally and legally. Well, so then, let's get into their claims. With respect to the Harvard litigation, SFFA has two basic claims. One is that Harvard is intentionally discriminating against Asian Americans. A discrete claim is a claim attacking affirmative action. They are discrete and separate claims, where you're actually asking different questions of law and considering different facts. But SFFA has blurred that and conflated those claims Again, to cultivate the narrative that Asian Americans suffer harm and affirmative action is the culprit. And so then you might ask, well, how do you know that affirmative action isn't the source of anti-Asian bias? The ironic thing is, you just look to SFFA's own evidence. So if you look to SFFA, if you look to their expert witness, what you will see is that the source of anti-Asian bias to the extent there's a anti-Asian bias come from two pieces of Harvard's admissions process. The first are legacy bonuses, and we can talk more about that if you want. But broadly, legacy bonuses are a boost, an admissions boost that Harvard gives to the children of alumni, kids with super wealthy parents, and athletes. Now, it turns out that all of those groups are predominantly white and predominantly wealthy. So that's one source of quite quantifiable clear disadvantage for Asian Americans, legacy policies. The other is this subjective personal rating that factors in a bunch of different elements like guidance counsellor recommendations, and other interviews, and other factors. And there's reason to believe that Asian Americans there might actually take a hit due to implicit biases that, in this particular context, actually harm Asian Americans. So those are the sources. Neither of those sources of harm our race conscious, those are both facially race neutral. So the source is not affirmative action. But we also know it's not because the beneficiaries of legacy bonuses and the personal rating with respect to the harm that Asian Americans are experiencing are white applicants. And again, we know this because the plaintiffs actually tell us that. But somehow, that gets lost quite quickly, in part because it behooves the plaintiffs to conflate it, such that the narrative that travels is that Asian Americans suffer harm and affirmative action is to blame. Even though the plaintiff's own evidence suggests that these other sites within the admissions process are causing anti-Asian bias, and that the beneficiaries are wealthy white applicants.>> This conflation is, as I understand it, the topic of an amicus brief that you wrote in this case and co-authored in this case, I should say. Do you wanna explain what else is in there?>> Sure, and I just have to give tremendous kudos and send lots of thanks to my co-author, Professor Vinay Harpalani, over at the University of New Mexico. And we wanted to make a very particular, precise intervention. And it was, we wanted to make the arguments for affirmative action that Harvard and UNC would make if they were zealous advocates of affirmative action. It's probably a longer conversation. But for various reasons, neither Harvard nor UNC are interested in marshaling the particular facts and theories that will best buffer their own policies from predictable lines of attack. In part, because if you want to make the strongest case for why it's critical to take race into account now, you have to highlight, one, how colorblind criteria, whether it's legacies, whether it's grades, whether it's SATs, function as an anti-meritocratic preference for white applicants. Because it rewards inherited advantage over talent and potential. So that's the first thing you have to do, you actually have to implicate all the ways in which your admissions process in all fair and square, and universities don't wanna do that. The second is, you have to foreground your own institutional legacy of both overt and covert racial exclusion hostility. And so our goal in the amicus brief was to, essentially, make those two arguments that Harvard and UNC weren't making. And so just very briefly, I can run through the argument. So the first, if the goal is just merit in some crude, shallow sense, I'm not suggesting this is how I think admission should be run. But generally, the knock against affirmative action is it contravenes or corrupts something that's otherwise meritocratic. Harvard and UNC should have just started by saying, look, nothing that we do is actually meritocratic. Why not? Because whether it's SATs, whether it's grades, whether it's interviews, all of those metrics are going to internalize racial inequality in a couple of different ways. One is just as a function of who has access to what resources, and almost always that is tethered to a student's racial identity, will impact a student's ability just to provide the credentials that Harvard wants. And we can actually look about this in terms of Asian students and white students. So it turns out that white students tend to have better guidance counselor, letters of recommendation than Asian Americans. And so you could ask, well, what is that? Is it caused by implicit biases? Is it caused by something else? Well, one reason that's likely implicated is that many of the wealthy white students who apply to get into Harvard are going to private schools that have much lower ratios of students to guidance counselors. So guidance counselors can just cater to individual students. Whereas many Asian American students, even those high achieving, are at public schools, where you just don't have that level of individualized catering. And so if you're going to treat the guidance counselor recommendation of your white students the same as your Asian American students, you're essentially comparing apples to oranges in a way that's going to function as a racial preference for white students. So one reason why you have to account for race if you want merit is just this unequal access to resources that just prevent some students from credentialing themselves. The other is that almost all of these tools also just understate the actual talent and qualifications of students from negatively stereotyped groups. Implicit bias is one reason, stereotype threat, which is one of the most deeply studied social psychological phenomena in the last 30 years. What it shows us is that if you're a student whose group is negatively stigmatized as intellectually inferior, you will underperform your actual ability on high-stakes tests like the SAT. Because you're having to deal with potentially an additional mental task that other students don't. And so the SAT, it's not just internalizing unequal access to resources, it's also understating the existing abilities of students from those groups. Which means that our common, quote, unquote, colorblind metrics are going to inevitably artificially inflate the qualifications of white students. Both Harvard and UNC rely on all of this and, which means that both of their admissions processes are already shaped by race even before affirmative action arrives. Formative action offers one way to counter all of those racial advantages that would benefit some students or racial disadvantage that would benefit others. I'll just quickly talk to two other points of our brief that we wanted to surface because Harvard and UNC did not. First is Harvard's legacy admissions policy. My sense is that throughout this litigation, Harvard has done everything possible to avoid having to talk about this policy. That undermines its affirmative action defense, in part, because Harvard's legacy bonuses are arguably the most substantial racial boost that you can find anywhere. And so now I'm just gonna pull some numbers from SFFA expert witness so the party suing Harvard. According to them, in about a five year recent period, Harvard admitted about 2,200 legacy applicants. And here I'm using legacy broadly to include children of alumni, athletes, and kids with parents with a ton of money, 2200 white legacy admits. According to the party suing Harvard, since the party attacking affirmative action, only one quarter of that group would have been admitted if they did not enjoy the legacy bonus. Which means that in this recent five year period, Harvard admitted over 1,600 white primary wealthy students whose academic credentials were worse than the typical applicant. That's more than all of the black and Latin students admitted in that time period. Just to put a fine point in, that means that one third of Harvard's white students are under qualified by Harvard's own standards. And if you wanna talk about the racial advantages embedded within admission systems, and why affirmative action is necessary as a corrective, you can't do that, unless you are talking about legacy as a racial preference. With UNC, it turns out also has a very small legacy bond for some students, which is far less significant, at least in gross numbers. But UNC was a historically whites only institution, was founded in 1789, is the nation's quote unquote first public university, but it formally barred all non-white students until 1955. Which is notable in part because Brown V Board was 1954, but UNC did not change its policy, it argued that Brown didn't apply to it. UNC then resisted integration for another 25 years, that involved a decade of litigation with the federal government and entities like the NAACP to try to force university to comply with the Civil Rights Act. And that only ended in 1981 when the Reagan administration brokered a backroom deal. And if you're just trying to ask yourself, okay, for UNC's entire history from 1789 till these lawsuits were filed in 2014, how much of that history had been devoted to maintaining a segregated whites only institution? And how much time had been spent trying to remedy and reckon with that history? It wasn't until 1998 that the university formally embraced diversity as a value. And so it should not surprise us that expert witnesses in the UNC litigation, witnesses that the district court quoted, noted that yes, UNC has started to reckon with its history, but it has a long ways to go. And race conscious admissions are one modest sort of tool that will help it get there.>> Let's do a little forecasting. So the composition of the court has changed quite a bit since the last time it sort of weighted into affirmative action territory. But I'm curious what you think is gonna happen, how these justices will go? What the outcome will be? What that might mean for colleges moving forward?>> What do I think's gonna happen? My guess is certainly five maybe six of the right wing justices will side for the plaintiffs. My guess is you have five who overturn Gruder. This court seems quite content overruling precedent with which it disagrees. And I think the question is how far it goes? The plaintiff's request is not just to eliminate race conscious admissions, but to forbid universities from even knowing the race of individual applicants. And what that would entail is essentially censorship of students. Because it would mean that if you are a student for whom your race is a salient aspect of your identity, you are not permitted to write about it in your college essay. Or if you do, you have to redact it. And not only is that an indignity for students for whom race has mattered, but it makes their life story unintelligible. For other students for whom race hasn't been salient, this effectively is another form of a sort of racial preference or racial advantage that they would be sort of enjoying sort of under this colorblind regime. But what might be equally important is to see what is coming down the line, not in this case but sort of the next race conscious admissions case. Because there's a series of lawsuits that have been filed by entities like the Pacific Legal Foundation, which is one of the parties backing the SFFA's claim and the argument that they are making. And this is often arising in the elite sort of public magnet or high school context, is that anytime an institution thinks about race when it is implementing a policy, just thinking about race, having a racial purpose is unlawful. And so an example would be if you're an institution, if you're an elite high school, and you decide to go test optional or stop using an interest exam because you want a more racially diverse student body. And because you know that those sorts of exams do a better job rewarding inherited advantage than a student's actual talents and potential. That's the next Gambit is to actually deem unlawful the race neutral alternatives that the plaintiffs say Harvard and UNC should be using right now. And the end game in a sense is to constitutionalize a right to racial inequality. What it ultimately comes down to is that the end game is not just to eliminate a race consciousness, but it's to eliminate all anti-racist projects. By which I mean projects that are thinking about race and racism in order to overcome race and racism. And as radical as that would be, as contrary to the constitution and federal anti-discrimination law as that would be, we should not be surprised if this is where the court ultimately goes. It won't be this term, but we should be prepared for it down the road.>> So, the Supreme Court will hear students for fair admissions be president and fellows of Harvard College and students for fair admissions, the University of North Carolina both on October 31. And you can listen live if you want to,. I know that I will be because I can't think of a scarier way to spend Halloween than contemplating the end of an infection in colleges and Universities. But thank you so much, Jon. It was great to chat with you and to kind of unpack some of these nuances.>> Thank you so much for having me. And I have to give a shout-out to one of my RAs, Julian, who suggested that we pitch this to you all, and so he gets all the credit for anyone who likes any of this. Thanks, Julian.>> Thanks so much to Jonathan Feingold for joining us on this episode of Question of the Week. To learn more about affirmative action, check out the links in the show notes. This episode was produced and engineered by, Andy Halleck and hosted by me, Molly Callahan. Thanks for listening, and see you in two weeks.[MUSIC]