Affirmative action in jeopardy

Few seem to have much doubt that the conservative Roberts Court will end affirmative action in higher education in two cases that it will hear on October 31: Students for Fair Admission v. Harvard College. The Court's decisions are likely to have a devastating effect on diversity in colleges and universities across the country.

For over 40 years, the Court repeatedly has held that colleges and universities have a compelling interest in having a diverse student body and may use race as one factor among many in admissions decisions to benefit minorities and to enhance diversity. In 1978, in Regents of the University of California v. Bakke, the Court was splintered, but five justices agreed on the importance of colleges and universities engaging in affirmative action to achieve a diverse student body.

Twenty-five years later, Grutter v. Bollinger, the Court upheld a University of Michigan Law School affirmative action program. Justice Sandra Day O'Connor, writing for the Court in a 5-4 decision, explained the vital importance of a diverse student body for the education of all students and reaffirmed the constitutionality of colleges and universities using race as one factor in their admissions decisions.

In Fisher v. University of Texas, Austin, in 2016, the Court upheld a University of Texas affirmative action program for its undergraduate admissions. Justice Anthony Kennedy, writing for the majority, explained that the Texas program was constitutional because the university had shown that there was no other way to achieve having a diverse student body.

But since 2016, the composition of the Court has changed significantly. Most important, two of those in the majority in Fisher - Anthony Kennedy and Ruth Bader Ginsburg - have been replaced by more conservative justices. The three dissenters - Chief Justice John Roberts and Justices Clarence Thomas and Samuel Alito remain. They have been joined by three staunch conservatives: Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett.

Affirmative action, like abortion, long has been a target for conservatives. As the Court demonstrated in Dobbs v. Jackson Women's Health Organization in June, the conservative justices have no hesitation in overruling precedents. And unlike in Dobbs, Chief Justice Roberts is likely to be with them in ending affirmative action. Throughout his time on the Court he has vehemently opposed affirmative action, famously declaring in Parents Involved in Community Schools v. Seattle School District No. 1, in 2007, "The way to stop discrimination on the basis of race is to stop discriminating on the basis of race."

The effect of the Court having two cases on the docket this term is that it is likely to end affirmative action in both public and private schools. The University of North Carolina case involves whether affirmative action violates the equal protection clause of the Fourteenth Amendment. But the Constitution does not apply to private schools. The suit against Harvard is based on Title VI of the 1964 Civil Rights Act, which provides that recipients of federal funds cannot discriminate on the basis of race. The Supreme Court has ruled that the standards under Title VI are the same as under equal protection.

The impact of eliminating affirmative action is revealed by California's experience after Proposition 209 was adopted in 1996. This initiative prohibits governments in California from discriminating or giving preference on the basis of race or sex in education, employment and contracting. The effect was immediate and dramatic. At UCLA, for example, it took over 20 years to achieve the diversity in its undergraduate population that existed prior to 1996. At Berkeley Law, where I am now dean, there was just one Black student in the year after Proposition 209 was enacted.

Ultimately, schools in states that have eliminated affirmative action, like California, Michigan, and Washington have found ways to achieve diversity while complying with their state constitutions that outlawed it. But it took concerted effort and many years. The effect of simultaneously eliminating affirmative action at all public and private schools is sure to have a serious devastating effect on admission of students of color across the country for many years to come. The long history of race discrimination in American society and current inequalities in educational opportunity make affirmative action essential.

This also will have a detrimental effect on the education of all students. I am in my forty-third year as a professor. I have taught college and law school classes that were almost all-white and those that had substantial diversity. It is vastly different to teach about racial profiling or affirmative action without many students of color. As Justice O'Connor explained in Grutter, preparing students for working with diverse clients and in a diverse society demands that law schools have diverse populations.

Colleges and universities always have recognized the importance of diversity. It has long been easier to get into Ivy League schools if the applicant is from Wyoming or Montana. Those with exceptional skills, including in sports, often have gotten admitted with lower test scores and grades. Sadly, many colleges do this for "legacies," children and grandchildren of alumni.

The irony is that the conservative justices who profess to be originalists abandon that here. The evidence is overwhelming that the Congress that adopted the Fourteenth Amendment in 1868 did not believe that the government had to be colorblind. They adopted many race conscious programs, such as the Freedmen's Bureau. Yet this history never gets mentioned in the opinions of the originalist justices who oppose affirmative action.

Conservatives long have had an agenda for how they want to change constitutional law.; Overruling Roe v. Wade was a key part of that agenda. So is ending affirmative action. The cases to be argued on October 31 provide the Supreme Court the vehicle to do exactly that.