The Court may signal that it considers efforts aimed explicitly at racial equity to be unconstitutional.
1. the history
In June, 2016, Justice Samuel Alito took the unusual step of reading aloud from the bench a version of his lengthy dissent in the case of Fisher v. University of Texas. A white applicant who had been denied admission had sued, saying that she’d been discriminated against because of her race. The Supreme Court, by the narrowest of margins and on the narrowest of grounds, upheld Texas’s admissions policy. Alito, with steely indignation, picked apart the logic of U.T.’s arguments and of his colleagues’ majority opinion. “This is affirmative action gone berserk,” he declared.
The civil-rights revolution ended the Jim Crow system of legally mandated racial segregation in the South. Its success made it obvious that much of the rest of the country was segregated, too, in fact if not always explicitly by law. In the years after the passage of the major civil-rights legislation, many colleges and universities made a concerted effort to become more racially integrated. Alito was complaining about U.T.’s version of this effort, but affirmative action has been controversial from the beginning, because more Black students usually means fewer students of other ethnicities. Students who weren’t Black used the laws banning racial discrimination to claim that universities were now discriminating in favor of Black people, and against them.
Alito concluded his dissent with an impassioned statement: “What is at stake is whether university administrators may justify systematic racial discrimination simply by asserting that such discrimination is necessary to achieve ‘the educational benefits of diversity,’ without explaining—much less proving—why the discrimination is needed or how the discriminatory plan is well crafted to serve its objectives.” In his view, the University of Texas, once the target of a civil-rights lawsuit charging it with discriminating against Black people, was now discriminating, just as unacceptably, against others. He went on, “Even though U.T. has never provided any coherent explanation for its asserted need to discriminate on the basis of race, and even though U.T.’s position relies on a series of unsupported and noxious racial assumptions, the majority concludes that U.T. has met its heavy burden. This conclusion is remarkable—and remarkably wrong.”
Affirmative action is one of many policies—not just in admissions but also in employment, contracting, education, and voting—that take race into account, as a way of reversing the effects of many more policies, lasting for many more years, that openly discriminated against Black people. The Supreme Court has been ruling on these policies for half a century. In 1954, the Court joined the civil-rights revolution in a unanimous decision declaring legally segregated public schools to be unconstitutional. Since then, it has had a much harder time making up its mind in cases involving race.
The Court has considered affirmative action in university admissions six times. The first time, the Justices wound up declaring the case moot. The second time, they voted 5–4 against an explicit, numerical version of affirmative action, and 5–4 in favor of a less explicit version. The third and fourth times involved two lawsuits against the University of Michigan, which the Court decided simultaneously. In one, it ruled against another explicit, numerical version of affirmative action by a 6–3 vote, and in the other it once again voted 5–4 in favor of a less explicit version. The fifth time was the University of Texas case; the Court sent it back to a lower court for reconsideration. That led to the sixth time, in 2016. It decided, by a one-vote margin, in favor of keeping a soft-edged kind of affirmative action that relies on the judgment of an admissions office to use race appropriately when considering an applicant. Is there any issue on which the Supreme Court has produced less clarity? But one thing has been true every time the Court has upheld a form of affirmative action in admissions: the swing vote in the decisions came from a moderate Justice appointed by a Republican President—a breed that no longer exists.
The nine Justices are now considering whether to hear Students for Fair Admissions v. Harvard, which accuses Harvard of discriminating against Asian American candidates. The case was organized by Edward Blum, a financial adviser who for more than twenty-five years has been bringing lawsuits against various efforts to take race explicitly into account with the aim of helping people of color—including the Texas case. Another of Blum’s cases, which accuses the University of North Carolina of rejecting white and Asian American applicants because of their race, is currently moving through the lower courts.
The country appears to be embarking on a great racial reckoning. A year ago, the murder of George Floyd by the white police officer Derek Chauvin set off some of the largest public demonstrations in American history, and prompted forceful official statements of opposition to racism by just about every prominent institution in America. Joe Biden has repeatedly called for racial equity, using unusually strong language. Many organizations have issued public pledges to recommit themselves to racial diversity, to more fully acknowledge Black history, and to more extensively represent Black perspectives. And a conservative resistance to all these changes is under way, in Congress and state legislatures, in the media, and in the courts, where there are new legal challenges to race-conscious Biden Administration programs. It’s distinctly possible that the Supreme Court, as early as next year, could signal that it considers efforts aimed explicitly at helping Black people to be unconstitutional.
In June, the Court asked the Biden Administration to give its views on the Harvard case. If the Court decides to take it, that would be seen as good news by the plaintiffs and bad news by Harvard, which has won in the lower courts. It would be the Court’s first affirmative-action case involving a private university, although Harvard, like all major research universities, receives a great deal of government funding. Given the current makeup of the Court, it’s hard to imagine that it would be inclined to build a bigger, friendlier space for race-conscious policies. There is no reason to believe that Justice Alito has changed his mind in the five years since his dissent in the U.T. case.
Two other conservative Justices who have been consistently hostile to affirmative action—Clarence Thomas and Chief Justice John Roberts—signed on to Alito’s dissent. Roberts has referred to race-conscious policies as “a sordid business.” Anthony Kennedy, the now retired, moderate Republican-appointed Justice who wrote the majority opinion in the Texas case, had in the past been inclined to vote against affirmative action. Joan Biskupic revealed in her recent biography of Justice Sonia Sotomayor that when the case first came before the Court, in 2012, Sotomayor had initially drafted a “heated opinion,” offering “a fierce defense of affirmative action.” When she sensed that Kennedy was moving away from his former position, she decided not to issue it and instead wound up voting for his opinion, in 2016, when the case came back to the Court. Now there are six Republican-appointed Justices on the Court, three of them—Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett—appointed in the past four years, by Donald Trump.
A particularly firm conservative decision would amount to an invitation to further lawsuits challenging state and local measures designed to increase Black employment, electoral power, and economic resources. On race, it’s by no means clear that the Supreme Court has shared in the resurgence of passion for racial-justice issues that has swept through many other leading American institutions. This could be one of those Court decisions which set off not just private legal readjustments but public demonstrations, and years of political organizing. There is little common ground between people who see explicitly racial remedies as justifiable and necessary and people who see them as morally indistinguishable from the Jim Crow laws.
It will be fitting if the Court takes the Harvard case. The long-running battles over affirmative action involve a clash between two opposing principles, both arguably invented at Harvard: meritocracy and diversity. At large universities, it is possible to employ both principles at once, since the institutions have to balance many goals that sometimes seem at odds. But in the national debate, because people tend to choose either meritocracy or diversity, it’s important to understand where the ideas came from.
In 1933, James Bryant Conant, a chemist, became the president of Harvard. Unlike his immediate predecessors, who were Boston Brahmins, Conant grew up in middle-class Dorchester, not one of Boston’s patrician precincts. During Harvard’s almost four-hundred-year history, it has organized itself along a number of different principles, beginning with its founding mission to train ministers. Conant’s predecessor, Abbott Lawrence Lowell, had overseen an institution dominated by students from wealthy families in the Northeast who had been educated at New England boarding schools. Lowell had introduced a quota restricting the number of Jewish students and a policy of residential segregation for Harvard’s few Black students. Conant wanted to make Harvard more purely academic, like the great research universities in Europe, so the clubby atmosphere of the place struck him as something that had to change.
Conant became entranced with the idea of using standardized intelligence tests as a way to attract academically outstanding public-school graduates from all over the country, regardless of their socioeconomic backgrounds. He decided that the best test available was the SAT, a multiple-choice test adapted from an I.Q. test given to Army inductees during the First World War. Immensely influential in the world of education, Conant led a successful effort to make the SAT a critical part of the admissions process for millions of college applicants, and to make other I.Q.-like tests a key screening device for graduate and professional schools. This consequential policy was established with no legislative action and little or no public debate.
During the nineteen-forties, Conant wrote a series of manifestos proposing a vast remaking of American society. The best known of these, titled “Wanted: American Radicals,” was published in The Atlantic Monthly. Conant hoped to create a Cold War version of Plato’s Republic, with a new class of brainy, selfless, superbly educated men leading the competition with the Soviet Union. As he perceived it, standardized tests would bring to the best universities the most talented students, who would go on to become highly influential public servants. This position wasn’t completely wrong. One of the first SAT-selected scholarship students to attend Harvard, which was all-male at the time, was James Tobin, the son of a sports-information director at the University of Illinois, who distinguished himself as a Nobel Prize-winning economist, a professor at Yale, and a member of the White House Council of Economic Advisers. One of Tobin’s students was Janet Yellen, the daughter of a Brooklyn family doctor, who is now the Secretary of the Treasury.
But Conant was mistaken in believing that he could use the SAT as a way to create a classless society. He liked to predict that, in the postwar world, inherited privilege would be abolished. In 1958, Michael Young, a British sociologist, introduced the word “meritocracy,” warning that the widespread use of I.Q. tests as a sorting device would result in a new and deeply resented kind of hereditary class system. But that’s not how people came to understand the term. To many, it denoted an almost sacred principle: that tickets to success, formerly handed out by inheritance or luck, were now given to the deserving. Inevitably, the system became widely understood not as an entry point into public service but as a promise of financial reward and social prestige. And fortunate parents learned how to manipulate the system, insuring that their children received every possible advantage—or even, in extreme cases, bribing their children’s way into élite universities.
White establishment liberals of Conant’s generation almost never considered race when they thought about the American future. In the summer of 1948, Henry Chauncey, an assistant dean under Conant who became the first president of the Educational Testing Service, was stunned to read an article co-written by one of the most prominent Black academics in the country, the anthropologist Allison Davis, who argued that intelligence tests were a fraud—a way of wrapping the privileged children of the middle and upper classes in a mantle of scientifically demonstrated superiority. The tests, he and his co-author, Robert J. Havighurst, pointed out, measured only “a very narrow range of mental activities,” and carried “a strong cultural handicap for pupils of lower socioeconomic groups.” Chauncey, who was convinced that standardized tests represented a wondrous scientific advance, wrote in his diary about Davis and Havighurst, “They take the extreme and, I believe, radical point of view that any test items showing different difficulties for different socioeconomic groups are inappropriate.” And: “If ability has any relation to success in life parents in upper socioeconomic groups should have more ability than those in lower socioeconomic groups.”
But that thought contradicted Conant’s assurance that the American radical he wanted to put in charge of the country would be “a fanatical believer in equality,” committed to “wielding the axe against the root of inherited privilege.” As the civil-rights movement grew, universities wanted to integrate more seriously, and standardized tests complicated their commitment. Testing made it possible to create a numerical ranking of all applicants, which helped enormously in handling the crush at the gates of selective institutions. Yet there had always been substantial average Black-white gaps in test scores—a reflection of the divergent quality of education and other resources in the lives of Black and white Americans. Conant’s efforts had resulted in greatly increasing the importance of tests, but the enhanced integration, beginning in the nineteen-sixties, of Harvard and other colleges and universities required decreasing their importance.
By the early nineteen-seventies, rejected white applicants at a number of universities were beginning to sue—charging that the schools had engaged in reverse discrimination. The plaintiffs based their legal arguments on two landmarks in the country’s historic quest for racial justice, the Fourteenth Amendment to the Constitution and the Civil Rights Act of 1964, both of which forbade racial discrimination. Those measures were aimed at helping Black people, but, the plaintiffs argued, they applied equally to white people who had been rejected even though their test scores were higher than those of admitted Black applicants. In these lawsuits, admissions based on standardized test scores had risen to the level of a constitutional right.
The first celebrated white litigant against an affirmative-action program was Marco DeFunis, who had been turned down by the University of Washington’s law school. In 1974, the Supreme Court declared DeFunis’s case moot because a lower court had ordered that he be admitted to the law school, and by the time the Court ruled he was close to graduating. Supporters of affirmative action were worried. Mainstream Jewish organizations, seeing affirmative action as a possible harbinger of a return of Jewish quotas at universities, took DeFunis’s side. Alexander Bickel, of Yale Law School, one of the country’s most prominent legal scholars, co-wrote an anti-affirmative-action friend-of-the-court brief for the Anti-Defamation League. The sociologist Nathan Glazer wrote a book called “Affirmative Discrimination.” The Supreme Court’s most theatrically liberal white member, William O. Douglas, wrote a solo opinion that treated affirmative action as unconstitutional. The Fourteenth Amendment, he wrote, “commands the elimination of racial barriers, not their creation in order to satisfy our theory as to how society ought to be organized.” The feeling that issues involving race had obvious solutions, which had prevailed at the Court in 1954, had evaporated. Justices were predisposed to see affirmative action as presenting a bewildering conflict between two competing values: the impulse to integrate universities and the impulse to organize admission as an open competition in which each individual applicant would be judged solely on the basis of grades and test scores.
2. The Diversity Detective
David Oppenheimer is a veteran law professor who teaches at the law school of the University of California at Berkeley. According to family legend, his paternal grandparents, who were not acquainted, were so upset by the release of “The Birth of a Nation,” in 1915, that they separately wrote to Booker T. Washington to ask what they could do about it—and he introduced them to each other. As Oppenheimer sees it, the cause of racial justice is responsible for his existence.
Everything about affirmative action and the law—and, today, much more about race relations—hinges on one word: “diversity.” The word comes from a decision by Justice Lewis Powell, the first of the moderate Republican-appointed swing Justices, in a 1978 case, Regents of the University of California v. Bakke, about admission to the medical school at U.C. Davis. The medical school had rejected Allan Bakke, a white student, and had set aside sixteen places for minorities in its entering class of a hundred. The Court disallowed the program, which, in the language of opponents of affirmative action at the time, was called a “quota.” Powell’s decision made diversity the only permissible justification that a university could use in increasing its cohort of Black students. It had to be able to demonstrate that the intent was to create an intellectually richer environment on campus, not to address racial discrimination in society.
Oppenheimer, like many civil-rights lawyers, was frustrated with the use of diversity as the sole legal foundation for such an important issue. (The philosopher Elizabeth Anderson, in a 2010 book, “The Imperative of Integration,” listed four possible models of affirmative action: to compensate Black people for past harms, to generate diversity, to prevent discrimination, and to achieve integration.) Considering diversity to be the only permissible model appears to regard greater numbers of Black students on campus primarily as a way to broaden the experience of white students, and it fails to recognize the historical debt the country owes to Black people. Oppenheimer decided that, if he could unearth diversity’s source, something crucial about race, education, and the law in America might be revealed.
The Bakke case framed affirmative action for decades. By the late seventies, admission to higher education had become a national obsession, and race had always been a national obsession. The case drew intense public attention—The Atlantic Monthly ran a cover story about Bakke titled “The Issue Before the Court: Who Gets Ahead in America?” There were more friend-of-the-court briefs filed than in any recent Supreme Court case. On the day the Bakke case was argued, people lined up for hours hoping to get a seat.
Powell assigned one of his clerks, Robert Comfort, to draft a “bench memo” summarizing the case—making clear his initial inclinations. Comfort, who is now retired after a career as a tax lawyer, told me, when we spoke not long ago, “In Powell’s view, the best result was to preserve affirmative action in some form. He said, ‘I want to find a middle ground. My client, the country, needs for this to be the result. How do we get there?’ ” Powell hated the medical school’s system of explicitly reserved places for minority applicants. Comfort said, “Powell thought that was offensive—to let politics decide how to cut up the melon.”
Four Justices were willing to support U.C. Davis. If the case had arrived a few years later, John Paul Stevens, who was moving left, might have provided a fifth vote. Powell’s biographer John Jeffries has written that Powell realized how far the Justices really were from reaching a natural consensus when Thurgood Marshall, a liberal and the Court’s only Black Justice, said in conference that some form of racial recompense would be necessary for the next hundred years—it would take that long to heal the wounds left by the country’s racial history. “This remark left Powell speechless,” Jeffries writes, giving him “a sharpened sense of the vast gulf that separated him from the liberals.”
So Comfort had to devise an argument for keeping affirmative action while limiting the open use of race in admissions. He burrowed into the friend-of-the-court briefs. “There were a lot of really bad briefs,” he said. But one stood out: “the Harvard brief,” as Comfort described it, which focussed on diversity. Comfort’s memo to Powell said, “Educational Diversity—This seems to be the step in the analysis offering the best opportunity for taking a middle course.” Powell wound up being assigned to write the majority opinion in the Bakke case, and he quoted heavily from the Harvard brief, which three other leading universities had signed. Harvard had originated admissions by standardized tests, and now it offered diversity as a justification for affirmative action. From within the institution, those two positions didn’t seem contradictory, because they had in common a large social ambition and an insistence that Harvard be permitted to decide whom to admit without having to adhere to any one externally required standard.
Years later, when Oppenheimer began his search for the origin of diversity, the idea had become ubiquitous. It was the basis of all subsequent Supreme Court decisions, and it became one of the stated principles underlying the admissions policies of essentially all universities, and a goal widely adopted, at least rhetorically, in corporate America, in the arts, in the military, and elsewhere. Oppenheimer assumed that the term had originated in the legal world, but it had never previously appeared in any court decision or piece of legislation that he could find. He discovered that, in the DeFunis case, Harvard had submitted two friend-of-the-court briefs to the Supreme Court, but the one that focussed on diversity hadn’t entered the standard legal databases.
The principal author of this brief was Archibald Cox, a Harvard law professor who had recently been fired from his position as a special prosecutor in the Nixon Administration during the Watergate “Saturday-night massacre.” When Cox returned to Cambridge, in 1973, Harvard’s new president, Derek Bok, asked him to write the brief. (Cox, a generation older than Bok, had been a mentor when Bok was a young member of the Harvard Law School faculty.) A few years later, during the Bakke case, Bok sent his general counsel to persuade the University of California to let Cox argue on its behalf before the Supreme Court.
Only one person who signed the brief with Cox is still alive: James Bierman, a Washington lawyer who was a twenty-eight-year-old assistant dean at Harvard Law School, working in the admissions office, when Cox asked him to write a first draft. Before affirmative action, Bierman told me, a typical law-school class had only four or five Black students out of more than five hundred. “We had to do something deliberately, because of racism in this country,” he said. “You have an applicant pool where the objective numbers for Blacks and whites do not look the same. How do we justify accepting someone with a lower LSAT score?” He took language from a report that the Harvard undergraduate-admissions office had produced in 1960 about how it selected students, which mentioned the goal of creating a student body that would include people of different talents and backgrounds—including a hypothetical “Idaho farm boy.” (One of Harvard’s admissions deans was himself a former Idaho farm boy.) This absolved Harvard from applying a single academic standard to all applicants, and allowed it to add racial diversity to the list of qualities the university was looking for. In Comfort’s memo to Justice Powell about the Bakke case, next to the passage where Comfort brought up diversity, Powell jotted down, “This is position that appealed to me in DeFunis.”
Oppenheimer was still unsatisfied. Surely the concept of diversity must have specifically racial roots. As he kept looking, he came across what he considers the Rosetta stone of the Supreme Court’s jurisprudence on affirmative action, which in turn generated our current understanding of the word “diversity.” It is a slim book, published in 1957, titled “The Open Universities in South Africa.” At the time, two South African universities conducted integrated classes, but the apartheid government was preparing legislation that would force them to segregate. Officials from the integrated universities, the University of Cape Town and the University of the Witwatersrand, organized an opposing campaign. South Africa’s integrated universities, the book says, “believe that racial diversity within the university is essential to the ideal of a university in a multi-racial society.” It goes on, “Nowadays it is almost axiomatic that a university should be more diverse in its membership than is the community in which it exists. This diversity itself contributes to the discovery of truth, for truth is hammered out in discussion, in the clash of ideas.” The book presents diversity as a justification for racial integration, and places the issue in the context of universities’ historic claim to academic freedom and protection from political interference.
Oppenheimer discovered that T. B. Davie, the principal of the University of Cape Town, had received a grant from an American foundation to travel to the United States and talk to prominent educators about the material that would appear in the book. Davie visited Harvard Law School and met with the dean, Erwin Griswold. Oppenheimer located a diary that Davie kept during his trip, in which he wrote that he and Griswold had discussed race and academic freedom.
Albert van der Sandt Centlivres, the Chief Justice of South Africa and the chancellor of the University of Cape Town, also got a travel grant from the foundation. He met the Supreme Court Justice Felix Frankfurter, who quoted at length from the “Open Universities” book in his opinion in a 1957 free-speech case. (Harvard’s briefs in the DeFunis and Bakke cases quoted from Frankfurter’s opinion, and so did Robert Comfort’s memo to Powell.) Frankfurter was a former Harvard Law School professor, still very much in touch with his erstwhile colleagues; Archibald Cox was a former student and protégé of Frankfurter’s. Oppenheimer found a letter of solidarity sent to Centlivres by nineteen faculty members at Harvard Law School, Cox among them. Oppenheimer concluded that, long before the DeFunis and Bakke cases, Cox had encountered and embraced the idea that universities should pursue racial diversity.
Oppenheimer’s discovery left him more kindly disposed to diversity. He now regards it as a way of placing affirmative action at the center of a project, dating back centuries, of protecting the university’s sacred place in the world, so that it has the right, in the words of the “Open Universities” book, quoting Davie, “to determine for itself on academic grounds who may teach, what may be taught, how it shall be taught, and who may be admitted to study.” The constant invocation of diversity today by many American institutions underscores how influential universities can be. In the immediate aftermath of the Bakke decision, Oppenheimer says, not much attention was paid to the word—its inherent power has been demonstrated only over time.
Diversity, though, hasn’t converted the entire country. Most of institutional Black America would have preferred that the Supreme Court had simply endorsed the University of California’s policy of reserving places for minority applicants. After the decision, the headline in the Amsterdam News was “BAKKE—WE LOSE!” Powell’s decision in Bakke insisted that any use of race in admissions be subject to “strict scrutiny,” meaning that it would be presumed to be unconstitutional unless universities could offer an extraordinary justification. Many white liberals saw affirmative action as a temporary fix, a bridge to take the country from its racist past to its nonracist future. The Bakke case came as a relief to them, because it preserved affirmative action without resorting to quotas. It wasn’t designed to remake the country. It was a compromise.
Future lawsuits and other attacks were inevitable as long as diversity was seen as the only permissible justification for affirmative action, because it doesn’t specify that programs explicitly favoring Black people are acceptable. A California ballot initiative in 1996 proposed banning the state government from using race as a factor in employment, contracting, and education, including in universities. It passed by a wide margin, and most other such political efforts have been successful. Last fall, the voters of California, a state with a “majority minority” population, supported Joe Biden over Donald Trump by a nearly thirty-point margin, but they decisively rejected a ballot initiative to reinstitute race-based affirmative action. A Pew poll in 2019 found that nearly three-quarters of Americans, including sixty-two per cent of Black Americans, oppose using race as a factor in admissions decisions. But in a Gallup poll conducted the year before, in which affirmative action was not precisely defined, more than sixty per cent of Americans said they were in favor of it.
The legal justification for affirmative action dances around the obvious fact that it was a direct result of the civil-rights movement, aimed at racially integrating universities. This approach generates a good deal of cognitive dissonance. Jamal Greene, a professor at Columbia Law School, writes in his new book, “How Rights Went Wrong,” that the “Supreme Court’s distaste for overt race-conscious admissions plans . . . means that instead of forthrightly acknowledging structural racial inequality and tailoring their programs to the metes and bounds of that special social problem, schools—with the Court’s blessing—pursue racial justice in the shadows.” Schools claim that they take race into consideration only as part of their efforts to achieve diversity, not because they want to become more racially integrated. Greene writes, “This isn’t quite hogwash, but it’s close”—meaning that universities pursue racial diversity much more ardently than other kinds of diversity. Diversity, taken literally, isn’t what they are really after.
The outcomes of the next Supreme Court cases, in 2003, Grutter v. Bollinger and Gratz v. Bollinger, support Greene’s point. The Court rejected an explicitly numerical affirmative-action policy at the University of Michigan by a 6–3 vote, but accepted, by a 5–4 vote, a policy at the law school that was based on qualitatively evaluating all the applicants. Universities that use standardized tests and also have affirmative-action policies prefer to avoid being statistically specific about the extent of their commitment to affirmative action, which is partly because of the direction in which the Supreme Court has pushed them. A study published in 2009 by two sociologists, Thomas Espenshade and Alexandria Walton Radford, estimated that at selective private colleges being Black is the equivalent of adding three hundred and ten points to the SAT score of a white applicant. At Harvard, according to documents produced for the current lawsuit, average SAT section scores of accepted Black applicants were sixty-three points lower than those of accepted Asian American applicants.
Standardized tests provide opponents of affirmative action with hard evidence of exactly how race-conscious admissions are. Peter Arcidiacono, an economics professor at Duke, was an expert witness for the plaintiffs in both the Harvard and the University of North Carolina cases. He told me that he would prefer that universities be made to reveal the test scores of their accepted applicants by race, as the lawsuits have forced them to do. If they were more transparent, he told me, they might work harder “to make sure Black students achieve,” and to shift the focus of national attention away from college admissions and toward the racial disparities in high-school education. In real life, though, when tests become a more obvious factor in admissions, the Black presence decreases. The number of Black students enrolling at Berkeley dropped by nearly fifty per cent the first year that California’s anti-affirmative-action initiative was implemented. Arcidiacono estimates that if the Supreme Court takes the Harvard case and finds for the plaintiffs that number will drop by two-thirds.
Affirmative action has always been racially motivated, and it has produced the intended result: universities have become significantly more integrated. That has helped to increase racial integration, from a very low baseline, in the places where a degree from such universities is a meaningful credential—corporate America, Wall Street, Silicon Valley, and so on. Members of the Black élite often reflect ruefully that affirmative action helped them get into Ivy League schools—and generated annoying perceptions about them—but they also note that it has created a Black leadership class that hadn’t previously existed. David Garrow’s biography of Barack Obama says that when Obama applied for membership in the Harvard Law Review, he declined to check the box indicating his race—and that one reason he joined was to demonstrate that he hadn’t been admitted to Harvard Law School because of affirmative action. Nevertheless, he has staunchly defended affirmative action throughout his career.
Extremely competitive people who perceive the handing out of rewards as a zero-sum game and who are exquisitely attuned to the question of who truly deserves them often find the pursuit of social justice a secondary concern, or not their concern at all. In the 1982 book “Liberalism and the Limits of Justice,” the Harvard philosopher Michael Sandel imagined this letter being written to a rejected applicant: “It is not your fault that when you came along society happened not to need the qualities you had to offer. Those admitted instead of you were not themselves deserving of a place, nor worthy of praise for the factors that led to their admission. We are in any case only using them—and you—as instruments of a wider social purpose.”
Justice Sandra Day O’Connor, in one of the 2003 Michigan cases, noted that many corporate and military leaders had petitioned the Supreme Court not to strike down affirmative action: “It is necessary that the path to leadership be visibly open to talented and qualified individuals of every race and ethnicity.” This justification went far beyond promoting diversity on campus, and it more accurately describes what affirmative action is intended to do, and does. But O’Connor also wrote, “We expect that 25 years from now, the use of racial preferences will no longer be necessary.” Eleven years later, Michael Brown was killed in Ferguson, Missouri, and the current era of activism against racism began. Three years after that, O’Connor told her biographer Evan Thomas that the twenty-five-year deadline “may have been a misjudgment.” The deadline is now seven years away.
Robert Comfort, Powell’s law clerk, reflecting on Powell’s decision in the Bakke case, said, “It was not the most elegant piece of legal reasoning, but it was the right result. The mainstream-press reaction to the decision was overwhelmingly positive. We had saved the country from another civil war. The academic reactions, on both sides, were very harshly critical. Sometimes the right answer is not the intellectually defensible answer. It’s not the lawyerly answer. It’s a compromise. A lawyer isn’t interested in producing the clearest opinion. He wants to produce the best result.”
It is true that even public opponents of affirmative action have endorsed the goal of racial integration, while insisting that it should be achieved by means that do not explicitly take race into account. (Justice Alito’s dissent in the University of Texas case indicated his understanding, which isn’t historically accurate, that affirmative action was invented to correct for economic disadvantage. He believed that the University of Texas was betraying affirmative action’s founding spirit by using it to admit Black students from prosperous families.) But, on the current Supreme Court, ideological conservatives are more numerous than they have been in decades, and there are no Justices like Powell who have spent long careers as practicing lawyers.
David Oppenheimer wrote an article a few years ago about his detective work on diversity, concluding on a triumphant note: diversity “was such a persuasive explanation of how race can be properly considered in college admissions without violating the principles of equality that it remains the blueprint for virtually every highly selective college in America today.” Yet soon it may not be legally possible to use the diversity argument as the compromise solution to a tough problem.
3. The President
Four years ago, when Gabrielle Starr became the president of Pomona College, she gave a speech that began with what she called “a bit of an origin story.” Pomona has among the highest endowments per student of any college in the country, and Starr, a scholar of British literature who is also trained in cognitive neuroscience, is its first Black president. She choked up a little as she talked about six successive generations in her family “who resisted oppression and found their voices.” Her great-great-great-grandfather Henry Weeden was a freedman in Boston who worked as a tailor, and refused a federal marshal’s request to mend his coat, because the marshal’s job duties included enforcing the 1850 Fugitive Slave Act. Starr had found a letter that Weeden had written to the deputy, which said, “With me, principle first, money afterwards.”
I asked Starr to imagine that she had been Lewis Powell’s law clerk in 1978, assigned to draft his opinion on affirmative action. What would she have said to him? “I think the decision he wrote still has some merit,” she said, “but there are also some considerations that were not permissible at the time. The law is a lagging indicator of society. There is a chain of causality from one decision to the next, so we see the accumulated weight of past decisions. Past decisions have starkly shaped the landscape. It’s foolish to pretend they haven’t.” She said that the first thing she’d suggest to Justice Powell is that the Supreme Court be forward-looking, not backward-looking. “There’s a false premise that the responsibility of the Court is to interpret the law in the not fully knowable framework of the Framers’ minds. The Court has to consider the future effects of removing race from consideration. With each erosion, we have become less diverse. Therefore, consider what would be the appropriate language to achieve a more perfect union. Each part of society has a responsibility to provide equity of opportunity. It’s a requirement to have higher education open.”
Like many other colleges and universities, Pomona suspended its standardized-test admission requirement during the pandemic. Starr said that she “would like to see this as permanent, but we’ll see—I’m not a believer in those tests as predictive. My concern would be to show that we are not unduly influenced by any input measurement.” She has called affirmative action “one of the best tools we have developed over four hundred years, without which we would be seriously handicapped”—a way of addressing the much broader needs of Black Americans.
In another conversation, Starr described higher education as a means of “countering the barriers to social mobility, many of which have to do with racial and economic injustice.” She went on, “Helping first-generation college students to complete college—that is revolutionary in their families and communities. If they are not successful in college, there may never be another college student in that family. Black young men in particular, if they don’t complete college, fall out of the middle class, and what some might call the American Dream, at an alarming rate. And that suggests to me that there is something particular going on with race and the United States of America that colleges can help with, but colleges cannot do on our own. We have to come up with new and better strategies to counter racial inequity. Affirmative action is one of those, but it will not be enough.”
The overwhelming majority of Americans get their higher education in public colleges and universities. The California State University system has more than four hundred and fifty thousand students, nearly half of them people of color. California’s community colleges have more than two million students, most of them people of color. Starr often mentioned these systems in our conversations, conceding that Pomona has fewer than fourteen hundred students, eleven per cent of them Black and eighteen per cent Hispanic. Students at public institutions are also far more obvious victims of structural racism—many of them live in segregated, stressed neighborhoods. I asked why, then, Pomona’s role in racial progress is so important. She replied, “The fundamental answer is policy. Policy is largely set by graduates of highly selective institutions in this country. The ability of higher education to influence racial justice is the ability to produce policy and research. It’s unlikely that a nondiverse group will prioritize these issues. The perspectives don’t exist. Not out of bad intent.”
Between the 1984 and the 2020 Presidential elections, at least one of the major-party nominees had a degree from either Harvard or Yale, and usually both nominees did. Joe Biden attended the University of Delaware and Syracuse University, but, according to Politico, more than forty per cent of his senior and mid-level staff have Ivy League degrees. The White House is just an unusually prominent example of a whole range of influential institutions that pay close attention to élite educational backgrounds. Having Black people in the room, regardless of which class within Black America they come from, brings a different perspective and makes a difference in how and what decisions are made. As Starr pointed out, affirmative action is more than a racially representative apportionment of élite admissions slots. It is linked to a larger mission in race relations and for Black America.
Starr emphasized that she sees affirmative action as an educational policy, not just an admissions policy. Pomona has to “be able to overcome an extraordinarily broad range of kinds of disadvantage and can help students climb the hills that they have been born at the bottom of—and if they haven’t been born at the bottom they slide down faster than other people do.” She was optimistic, telling me that a number of special programs at Pomona have helped the school “all but erase differential graduation rates.” One provides grants for assistance in science, technology, and math. Another used a different set of teaching strategies in biology classes, which produced better results for these students. Starr believes that such programs, at Pomona and elsewhere, have unfortunately received far less attention at most universities than affirmative action in admissions.
I asked Starr how universities will react if the Supreme Court takes the Harvard case and issues a decision that bans universities from applying any consideration of race in admissions. She said, “Colleges and universities will have to say, ‘What ways remain to us to be true to our missions without falling on the wrong side of the highest court of the land?’ I think that what we will see are changes in recruitment to make sure we are reaching students earlier. I think we will see institutions trying to enter into partnerships with high schools and community colleges, to really maximize the effects we can have. And then I definitely foresee that there will most likely be a slew of further-on court cases that will make the case that supposedly race-neutral policies are not race-neutral at all, because they put proxies in place for success and admissibility that, when you scratch just beneath the surface, have overwhelming correlations with racial and ethnic identity.” In other words, one should expect universities to immediately resist by looking for ways to admit students that comply with the law but minimize the racial impact of the Court’s decision. Over the longer term, universities and their allies might respond the way they would to a Supreme Court decision overturning Roe v. Wade, by organizing to get state legislatures and Congress to pass laws that would allow them to do what the Court will not.
4. The Integrationist
Michelle Adams grew up in Detroit in the nineteen-sixties and seventies, a child of the Black upper middle class. Her life story has a threading-the-needle quality. She was raised in an integrated neighborhood, she told me, but only because her parents had paid a handsome fee to a white proxy who acted as the official buyer of their house. She went to an integrated school, but only because it was private and unusually progressive. (It was founded by refugees from Nazi Germany.) She remembers a racially comfortable upbringing, surrounded by whites who weren’t prejudiced and Black professionals, her parents’ friends, for whom American society seemed to be working well.
“Everybody we knew was like the Obamas,” she told me. One could say that she exemplifies the color-blind ideal cherished by the Supreme Court’s conservative Justices, except that her life was wildly exceptional. In the Detroit of her childhood, neighborhoods, schools, and workplaces were largely segregated. As Black people arrived in the city, white people left. Not far from where Adams lived, a white real-estate developer had built a six-foot, half-mile-long concrete wall to separate a Black neighborhood from a white one.
In Black America, nationalism and integrationism have always coexisted, sometimes as opposing ideas in tension with each other, but often as elements within the same person’s consciousness. Adams has written a book, to be published in 2023, about the 1974 landmark Supreme Court case Milliken v. Bradley. The Court, in a 5–4 decision, rejected an argument by the local branch of the N.A.A.C.P. that Detroit public-school students should be bused between the city and the suburbs in order to achieve integration. One of the heroes of Adams’s book is the nationalist minister Albert Cleage, who founded a church called the Shrine of the Black Madonna. Cleage was one of the first prominent leaders to call attention to the segregation and the underfunding of the Detroit public schools. Adams told me that she has come to see nationalism and integrationism as a dialectic about how to deal with white supremacy. “You might draw on different weapons in your arsenal at different times,” she said. “Cleage was a brilliant guy. I have a lot of respect for him. You use different approaches, depending.”
Adams is now a professor at the Cardozo School of Law. She became especially interested in the Milliken case in 2006, when, as a new member of the Supreme Court bar, she sat in the audience and heard the arguments in Parents Involved in Community Schools v. Seattle School District No. 1. White parents were suing because they objected to Seattle’s use of race as a factor in assigning students to high schools, in order to make them more integrated.
In yet another split decision, the Court ruled in the plaintiffs’ favor. Chief Justice Roberts wrote the decision, which contained the line “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” The Seattle school district had argued that the previous Supreme Court decisions about affirmative action in university admissions indicated that its policy of intentionally integrating schools was constitutional. Roberts stated that the Court’s decisions about higher education didn’t apply to high schools. Will it now maintain the position that higher education can follow different rules from high schools? Adams is pessimistic. “I have to be honest,” she said. “I think there’s a very high chance of the Court overturning the higher-education cases.”
As the Supreme Court has moved in the direction of what its conservative members consider color blindness, real life, at least for Black people who are poor or close to it, has remained highly color-conscious—maybe increasingly so. Blacks are much more likely than whites, Latinos, or Asian Americans to live in ethnically segregated neighborhoods. Black students are much more likely than white students to attend segregated schools and schools with a high percentage of students from poor families, even though Black students perform better, on average, in integrated schools—largely because those schools usually have better resources. Black neighborhoods have far less access to employment. They are often less safe, and subject to police violence. Because homeownership is the main asset for most Americans and real-estate values in Black neighborhoods are low, residential segregation is a major factor in the substantial Black-white wealth gap.
These interrelated realities, all of which rest on a foundation of laws and policies, are what people mean when they talk about structural racism. They apply far more strikingly to Blacks than to members of other ethnic groups. In Black America, segregation mostly hasn’t worked, and integration mostly has worked. That’s why it is so perilous for the Court to decree that any policy aimed at increasing integration—in education, in housing, in people’s economic lives—is unconstitutional.
Adams is part of an important and underpublicized conversation about race, the law, and government policy that focusses heavily on a set of issues affecting most Black people: public schools, real-estate practices, and job markets. The Biden Administration is more vocally concerned about these problems than any recent Administration has been. People in the conversation don’t always agree. Sheryll Cashin, a former Clinton Administration official and a law professor at Georgetown, calls, in her 2014 book, “Place, Not Race,” for “jettisoning race-based affirmative action,” even though she considers herself “a passionate advocate for integration.” Instead, she proposes conferring advantages based on whether one lives in a disadvantaged neighborhood.
Cashin is a reluctant convert to opposing race-based affirmative action. Richard Kahlenberg, a senior fellow at the Century Foundation, has always been critical of it. So I was surprised to see that in a recent report published by the foundation, of which he was a principal author, he endorsed the racial integration of public schools as a deliberate government policy. I asked him how he could oppose race consciousness in one place and favor it in another. He said that he is concerned by the use of race in admissions because it is being used to bestow a reward: “The selective institution is conferring substantial benefits by putting some students on a different life trajectory. And admitted students often interpret admission as: ‘You’re a winner in a meritocracy. You deserve this.’ ” Kahlenberg isn’t endorsing the world as it is, but he walks a careful line—race exists as a powerful category in American life, and it makes most Black people’s lives harder. Government policy can help. His mission is to achieve racial integration in universities without using racial criteria.
Kahlenberg’s idea of affirmative action based on class rather than on race violates both the principle of meritocracy and the idea that each applicant should be treated as an individual, not as a member of a category. Probably any reward system that considers itself a meritocracy, certainly the one we have now, is going to favor people from economically, educationally, and culturally fortunate backgrounds. They will, on average, be more qualified by standard academic criteria than people who are admitted partly because they come from disadvantaged backgrounds. Because so much of the debate about affirmative action revolves around what kinds of preferences there should be, not whether there should be preferences at all, the question of racial affirmative action really comes down to how offended you are by the idea of an admissions preference for, say, the child of a Black doctor. Do you consider racial preferences to be so wrong that policies that were created to end discrimination against Black people must now be applied to exclude them? Élite universities routinely tip the scales in favor of athletes, alumni children, and so on. Nobody in the Harvard case is challenging the constitutionality of those practices. Only race would be eliminated as a preferred category.
Elise Boddie, a former litigation director at the N.A.A.C.P. Legal Defense and Educational Fund who now teaches at Rutgers Law School, told me that she thinks the best over-all solution is to increase the racially integrated spaces in American society. “For government to express a racially inclusive purpose—is that unconstitutional?” she said. “I’d say no. We should value having Black people of different kinds of experience. Then you see that Black people are complex, so we can see the richness of our experience. For the Court to issue a decision that declares it unconstitutional to be race-conscious would be catastrophic.” She pointed out, “You’re constitutionalizing a racial caste system. There is a consistent impulse to return to massive racial exclusion.”
Michelle Adams is exploring a range of ideas in education and housing that are meant to bring to an end the phenomenon of poor all-Black neighborhoods. I asked her whether these would be color-conscious or color-blind. She replied, “The answer is, I don’t care about that. The Supreme Court cares. I personally don’t care.” She went on, “Where I think about interventions, I think lowering barriers to entry so that people who have lower incomes can move into areas where folks have higher incomes and have access to resources.” She believes that many kinds of interventions will be necessary. “But this is going to be hard. Because, when folks have stuff, they want to hang on to it.” For most Black Americans, race is a daily reality shaping one’s life—often experienced as a barrier. A legal ban on explicit considerations of race makes it more difficult to address the problem head on, but explicit race consciousness engenders resentment. Adams, after many years of thinking about all this, hasn’t landed yet on a definite position about how much one gains politically by insisting that policies aimed at making life better for Black Americans be officially presented as race-neutral.
I asked her why, if the central goal is helping Black people who are in real need, affirmative action in admissions to élite universities is so important. “The answer is, you get people like me. I assume I’m a beneficiary of affirmative action, and the school made a good bet on me.” She noted that white supremacy is operating in many ways simultaneously. “Why would you want to attack just one piece of it? You try to bring more diversity into public schools, as you do into more selective institutions. You do all those things simultaneously, to try to change the culture and to change the society.”
The term D.E.I., meaning diversity, equity, and inclusion, has become ubiquitous, at least in mainstream, relatively liberal institutions. One should not assume that the abbreviation is a sign of general acceptance. Diversity has its roots in a more than forty-year-old Supreme Court decision written by a Justice who was looking for a compromise. The same decision banned what most people today mean by equity—the explicit goal of a racially equivalent outcome. Nearly sixty years after the great victories of the civil-rights movement, the country is still far from insuring that people on both sides of the racial divide can thrive in the same space. And diversity in admissions is one Supreme Court decision away from being prohibited in the context of race. If America is indeed undergoing a racial awakening, it will have true meaning when it has changed lives as well as attitudes. That will require laws and policies that are nowhere near established—that, indeed, are threatened. ♦