Is Race-Based Affirmative Action Near an End?
The term “affirmative action” was coined by the Kennedy administration in 1961. 1 Less than a year after the 1960 Civil Rights amendments, President Kennedy issued Executive Order 10925 instructing government contractors to "take affirmative action to ensure that applicants are employed, and employees are treated during employment, without regard to their race, creed, color, or national origin." 2 In the years following, states promulgated affirmative action legislation and regulations. 3 However, unlike President Kennedy’s instruction to disregard race, state legislation and regulations often provided a competitive edge to racial minorities.
The United States Supreme Court first addressed the use of race-based affirmative action in Regents of University of California v. Bakke. 4 The case captured the attention of people around the country. A record number fifty-eight amicus briefs were filed, with only sixteen arguing that race-based affirmative action was unconstitutional. 5 The Court held that the University’s racial quota program violated the Fourteenth Amendment’s Equal Protection Clause. Justice Powell writing for a small plurality indicated that race may nevertheless be a consideration in school admission if the state has a compelling interest and uses the least restrictive means to achieve the interest.
Twenty-five years later, the Supreme Court decided two race-based affirmative action cases. First, in Gratz, the Court held that universities may not award admission points for race when such points “virtually” guarantee admission. 6 Then in Grutter, the Court held that race-based affirmative action considering race as a “plus factor” was constitutional. 7 Unlike the policies in Bakke and Gratz, the policy in Grutter was narrowly tailored to accomplish the university’s compelling interest to achieve student diversity. 8 The Court also indicated that race-conscious policies may no longer be constitutional in twenty-five years. 9 The dissenters in Grutter argued that the majority’s opinion ignored both the plain language of the Equal Protection Clause—“[n]o State shall… deny to any person… the equal protection of the laws.”—and provided extreme deference to the respondent’s purported compelling interest. 10
In 2007 the Court limited Grutter to higher education institutions. In Parents Involved in Community Schools v. Seattle School Dist. No. 1, the Court held that the school districts did not have a compelling interest in remedying past discrimination nor was diversity a compelling interest in elementary and secondary schooling. 11
Presently set for oral argument on October 31, 2022, are two cases challenging the constitutionality of Grutter. In these two cases, Students for Fair Admissions Inc. v. President & Fellows of Harvard College and Students for Fair Admissions, Inc. v. University of North Carolina, the petitioners argue that Grutter (1) is grievously wrong, (2) has led to significant negative consequences, and (3) has not generated legitimate release interests. Thus, stare decisis does not favor maintaining Grutter. 12
While the petitioners make a number of strong arguments in favor of overturning Grutter, two are particularly persuasive. First, the petitioners assert that Grutter has no support in the Fourteenth Amendment because “the Fourteenth Amendment contains no exceptions: it protects ‘any person’ from denials of ‘the equal protection of the laws.’” 13 Even with an existing debate between originalists and the living constitutionalist, nearly all judges agree that constitutional interpretation begins with the text. 14 Justice Kagan, a more liberal voice on the Court, has said that “[w]e’re all textualist now.” 15 Therefore, this argument, rooted in the text of the Constitution, will surely resonate with the Court.
The second compelling argument is that Grutter has enabled universities to discriminate against historically oppressed minorities, namely Jewish and Asian American students. 16 This discrimination has directly contributed to high levels of anxiety, depression, and even suicide for students. 17 It seems that race-based affirmative action has created a new spectrum of social woes.
I believe the Supreme Court is poised to prohibit further use of race-based affirmative action, but not on the grounds advanced by the petitioners. Although the Roberts Court has overturned and abrogated cases, historically the Court’s practice is to narrow cases and rely on existing case law. Some may point to the recently decided Dobbs case as the Court’s willingness to dismiss case doctrine; however, this is the exception to the rule. For example, in Fulton v. Philadelphia, Justices Thomas, Alito, and Gorsuch proclaimed that adherence to Smith leaves the promise of Free Exercise written on “dissolving paper sold in magic shops.” 18 However, the remainder of the Court resolved the dispute without overturning Smith. 19 Similarly, in 2021, Justice Gorsuch called for the overturning of the “rotten” Insular Cases, but the Court has settled the disputes within the confines of established precedent. 20
I find it difficult to believe that Grutter will be overturned in the same manner as Roe. It is far more likely that the Court will end race-based affirmative action by relying on Grutter’s sunset provision. With this provision, the Court may simply reason that Grutter was never intended to remain on the books indefinitely. Relying on the sunset provision will have the same legal effect as overturning Grutter, but it will be less controversial and less likely to be perceived as judicial activism.
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1 Jackie Mansky, The Origins of the Term “Affirmative Action”, SMITHSONIAN MAG. (June 22, 2016), https://www.smithsonianmag.com/history/learn-origins-term-affirmative-action-180959531/.
2 Exec. Order No. 10925, 26 C.F.R. 1977.
3 University of California Irvine, A Brief History of Affirmative Action, U. OF CAL. IRVINE (last visited Sept. 19, 2022), https://www.oeod.uci.edu/policies/aa_history.php.
4 438 U.S. 265, 269.
5 NCC Staff, When the Supreme Court first ruled on affirmative action, NATIONAL CONSTITUTION CENTER (June 26, 2022), https://constitutioncenter.org/blog/when-the-supreme-court-first-ruled-on-affirmative-
action#:~:text=On%20June%2026%2C%201978%2C%20the,Bakke.; William Claiborne, The Washington Post (Sept. 17, 1977), washingtonpost.com/archive/politics/1977/09/17/57-law-briefs-on-bakke/b3cb7c7c-b70e-4008-
adc1-964886cbd552/.
6 Gratz v. Bollinger, 539 U.S. 244, 249 (2003).
7 See generally Grutter v. Bollinger, 539 U.S. 306, 306 (2003).
8 Id.
9 See id. at 343.
10 Grutter v. Bollinger, 539 U.S. 306, 363 (2003) (Thomas J., concurring in part, dissenting in part); Grutter v. Bollinger, 539 U.S. 306, 388 (2003) (Kennedy J., dissenting).
11 551 U.S. 701 (2007).
12 See generally, STUDENTS FOR FAIR ADMISSIONS, INC., Petitioner, v. PRESIDENT AND FELLOWS OF HARVARD COLLEGE, Respondent., 2022 WL 3719165 (U.S.); STUDENTS FOR FAIR ADMISSIONS, INC.,
Petitioner, v. PRESIDENT AND FELLOWS OF HARVARD COLLEGE, Respondent; Students for Fair Admissions, Inc., Petitioner, v. University of North Carolina, et al., Respondents., 2022 WL 2918946 (U.S.).
13 STUDENTS FOR FAIR ADMISSIONS, INC., Petitioner, v. PRESIDENT AND FELLOWS OF HARVARD COLLEGE, Respondent., 2022 WL 3719165 (U.S.) 22.
14 But see Clip of Merrill v. Milligan oral argument, CSPAN, https://www.c-span.org/video/?c5034217/justice-jackson-argues-14th-amendment-intended-race-neutral-race-blind (Justice Jackson arguing that the original intent of
the Thirteenth, Fourteenth, and Fifteenth Amendments was not to create race-blind protections).
15 Harvard Law School, The Antonin Scalia Lecture Series: A Dialogue with Justice Elena Kagan on the Reading of Statutes, YOUTUBE (Nov. 25, 2015) https://www.youtube.com/watch?v=dpEtszFT0Tg.
16 Supra note 12, at 30.
17 Id. at 31.
18 Fulton v. City of Philadelphia, Pennsylvania, 141 S. Ct. 1868, 1887 (2021) (Alito J., concurring in judgment).
19 See generally Fulton v. City of Philadelphia, Pennsylvania, 141 S. Ct. 1868 (2021).
20 United States v. Vaello Madero, 142 S. Ct. 1539, 1557 (2022) (Gorsuch J., concurring).