Affirmative Action On The Ropes At The Supreme Court

The Supreme Court seems likely to severely limit the use of race-based preferences at public universities

Yesterday, the Supreme Court heard argument in its first major Affirmative Action case in several years, with many people anticipating that the changes on the Court since the last time the issue was argued could place serious restrictions on the use of race-based preferences in public education:

WASHINGTON — With the future of affirmative action in higher education hanging in the balance, the Supreme Court on Wednesday grappled with two basic questions, repeated by Chief Justice John G. Roberts Jr. in various forms at least a dozen times.

He wanted to know how much diversity was enough. And he wanted to know when colleges would be able to achieve an acceptable level of diversity without using racial preferences.

“What is the critical mass of African-Americans and Hispanics at the university that you are working toward?” Chief Justice Roberts asked a lawyer for the University of Texas at Austin. The chief justice never received a specific answer from the university’s lawyer or from one representing the federal government.

Their reluctance to answer illuminated a tension in the court’s precedents, which reject quotas but allow public universities to use race in admissions decisions as but one unquantifiable factor among many.

Had the lawyers responded to the chief justice by proposing a percentage goal, they would have run headlong into cases prohibiting quotas. In failing to offer a number, though, they left the court with very little to do in the face of precedents requiring judges to look closely whenever the government draws distinctions among people based on race.

“You won’t tell me what the critical mass is,” Chief Justice Roberts told the university’s lawyer, Gregory G. Garre. “How am I supposed to do the job that our precedents say I should do?”

The questioning on Wednesday from the chief justice and his colleagues was by turns caustic, exasperated and despairing.

Justice Sandra Day O’Connor, who retired in 2006, attended the argument and listened attentively as her former colleagues debated whether to reaffirm, limit or overturn one of her legacies, her majority opinion in Grutter v. Bollinger, the 5-to-4 decision in 2003 that allowed public universities to take account of race as part of a “holistic review.”

Her replacement by Justice Samuel A. Alito Jr., who has been hostile to affirmative action programs, may have altered the balance on the court on whether such admissions programs are constitutional.

The member of the court who now probably holds the decisive vote, Justice Anthony M. Kennedy, tipped his hand only a little, asking a few questions that indicated discomfort with at least some race-conscious admissions programs.

Those questions, along with his voting record, suggested that Justice Kennedy may be prepared to limit the Grutter decision. He told Mr. Garre that he was uncomfortable with the university’s efforts to attract minority students from privileged backgrounds.

“What you’re saying,” Justice Kennedy said, “is that what counts is race above all.”

He asked a lawyer for Abigail Fisher, a white woman who was denied admission to the university and who filed the lawsuit before the justices, whether the modest racial preferences used by the university crossed a constitutional line. Then he proposed an answer to his own question.

“Are you saying that you shouldn’t impose this hurt or this injury, generally, for so little benefit?” he asked.

Justice Sonia Sotomayor summarized the central question in the case, echoing Chief Justice Roberts. “At what point — when — do we stop deferring to the university’s judgment that race is still necessary?” she asked. “That’s the bottom line of this case.”

SCOTUSBlog’s Lyle Denniston once again does an excellent job of recapping yesterday’s argument and getting to the central issue in the case:

Affirmative action is alive but ailing, the idea of “critical mass” to measure racial diversity is in very critical condition, and a nine-year-old precedent may have to be reshaped in order to survive.  Those were the dominant impressions at the close of a one-hour, nineteen-minute argument in the Supreme Court Wednesday.  There is almost no doubt that the University of Texas’s affirmative action plan for admitting its freshman classes is in trouble with four Justices, but has at least qualified support from three others.  The one most in doubt among the eight taking part: Justice Anthony M. Kennedy.  He wanted to be convinced that the program does not use race at all costs, and it appeared that he was not.

At the center of the discussion was the Court’s last major ruling on affirmative action in college admissions - Grutter v. Bollinger, in 2003.  There was almost no one at the hearing thinking that Grutter would be flatly overruled, but Justice Sonia Sotomayor wondered what was on almost everybody’s mind: would it be “gutted”?  At a minimum, it seemed, it would have to be rewritten, and its central point — that a university can make some limited use of race until it achieves a “critical mass” in a diverse student body — may well be cast aside.   Chief Justice John G. Roberts, Jr., led a determined assault on the concept, finding it far too indefinite, and the idea had no fervent champions.

As the arguments turned out, the Court seemed unwilling to accept as conclusive the academic judgment that university officials make when they fashion admission plans that take some account, however limited, of the race of the applicants.  TheGrutter decision was famous for its deference to universities’ calculation of the educational benefits of racial diversity, but that now appears to be a dated and perhaps even discredited approach.  Judges, it appeared, will assume a more dominant role in weighing the constitutionality of any use of race.

It strikes me that this is exactly what Judges ought to be doing in this situation. The 14th Amendment, which governs this situation, clearly provides that all Americans are to be guaranteed equal protection of the laws regardless of their race. This strikes me as meaning not only that public institutions such as universities should not be discriminating against African-Americans on the basis of  their race, but also that they shouldn’t be discriminating against Caucasians, Asian-Americans, and members of other racial groups even if it’s for what they claim to be a good purpose, in this case making up for past discrimination against African-Americans by specifically discriminating in favor of African-Americans. There is no “affirmative action” exception in the Constitution, and it’s always struck me that the Court’s efforts over the years to find a way to justify the practice, starting most famously with the confusing and in the end badly written opinion in Regents of the University of California v. Bakke in 1978, have done nothing but make the situation worse and allow practices that are ultimately unjust and unconstitutional to perpetuate themselves in the name of “racial diversity.”  If there’s evidence of a long history of racial discrimination at an institution, something that is going to be admittedly hard to find in today’s day and age, then perhaps using programs like this may be acceptable so long as they are narrowly tailored to address the actual harm that was done by past practices. As a general policy, though, it strikes me that race-based preferences just end up perpetuating the very system of racial discrimination that we worked so long and hard to put behind us, only this time it victimizes different racial groups and disproportionately benefits upper middle class and affluent African-Americans.

Furthermore, to the extent that these systems of race-based preferences are meant to achieve a “diverse” college campus, they often end up undermining that goal:

[A] growing stack of carefully vetted research is finding that these large preferences often undermine the very goals they are intended to promote, because they do a poor job of matching students to the college environments in which they are most likely to thrive. A student who would do extremely well at Wake Forest ends up at struggling at Duke; a student who would thrive at a strong state university gets recruited away to the Ivy League and becomes a marginal student.

For example, students who aspire to careers in science or engineering (STEM fields), and who get into a school where they are surrounded by academically stronger students, have low odds of actually getting a STEM degree. Yet these students have what it takes to have a successful career in STEM — if they go to the right school. A careful study led by University of Virginia psychologist Fred Smyth found that the well-matched minority students were nearly 80% more likely to achieve their STEM aspirations. Three other studies have confirmed Smyth’s findings.


Undisputed research has found that students are more likely (holding other things, such as race, constant) to make friendships with other students who have comparable levels of academic preparation. When colleges use large preferences, they interfere with social assimilation, and the minorities who are the “beneficiaries” of these preferences often feel socially isolated and self-segregate. Indeed, preferences that are so large that they produce disparities in academic performance across racial lines are likely to foster negative stereotypes — just the opposite of what diversity programs are supposed to achieve.

In short, large racial preferences, and indeed large preferences of any other kind (e.g., for children of alumni, for athletes, etc.) are often counterproductive.

We’ve know of these problems for quite some time, of course, but the policies themselves never change. That’s why it’s necessary for the Court’s to step in and protect the rights of those who have been discriminated against improperly. Expanding educational opportunity for all, especially members of minority groups that have been economically underprivileged, is a noble goal but it cannot and should not be accomplished by violating the rights of others. Many opponents of race-based preferences have suggested replacing them with programs that look more toward an applicants economic status. As long as this is the criteria that’s being determined, there likely wouldn’t be many Constitutional problems with such a program. However, my fear is that income-based preferences would very quickly be used by admissions officials as a ruse for reintroducing the race-based preferences that they had previously abandoned.

Based on the oral argument, it looks like the Supreme Court is about to put some very severe limits on race-based preferences at public universities, and it’s about time. Those institution should use this as an opportunity to fundamentally change a flawed and illegal program.

Here’s the transcript of yesterday’s argument:

Oral Argument In Fisher v. University of Texas at Austin

FILED UNDER: Education, Law and the Courts, Race and Politics, , , , , , , , , , , , , , ,
Doug Mataconis
About Doug Mataconis
Doug Mataconis held a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010 and contributed a staggering 16,483 posts before his retirement in January 2020. He passed far too young in July 2021.


  1. Dave Schuler says:

    This strikes me as meaning not only that public institutions such as universities should not be discriminating against African-Americans on the basis of their race, but also that they shouldn’t be discriminating against Caucasians, Asian-Americans, and members of other racial groups even if it’s for what they claim to be a good purpose, in this case making up for past discrimination against African-Americans by specifically discriminating in favor of African-Americans.

    I don’t think that’s quite the issue, Doug. That’s a pre-Grutter point of view. The question is whether racial discrimination can be used in the absence of a history of past discrimination to achieve other goals, particularly a “critical mass” of minority students putatively to improve the educational experience of everybody. . Grutter said “Yes”.

  2. PD Shaw says:

    I think the Grutter opinion (race can be taken into consideration indirectly during the next 25 years) is largely unworkable; its pretty close to an obscenity standard of “I know it when I see it,” meaning that the only way to know whether a racial preference program is acceptable or unacceptable is to have the SCOTUS review it. Also, as noted, by focusing on diversity as the good to be achieved, it shows an alarming disinterest in whether or not the recipient of a preference just arrived from a foreign country or is the descendant of slaves and the victim of Jim Crow. In fact, the foreign immigrant would certainly provide more diversity.

  3. Scott says:

    It seems to me that socio-economic criteria may get the results desired. Unless a pure quantitative measurement is used, there will always be some kind of discriminator in the admissions process. It is interesting that the scores and grades of the girl denied entry into UT (top 12%, under 1200 SAT scores) are not good enough today to compete at UT unless there was some special non-academic reasons (background, experiences, etc).

  4. @Dave Schuler:

    Perhaps, but I’ve never quite bought into the “past discrimination” argument. Why should current students be made to pay for something that stopped being policy long before they were born?

  5. wr says:

    @Doug Mataconis: Yes, let us be all grateful that this noble supreme court will stop the terrible burden on us priveleged whites. Just because this country systematically kept blacks poor and powerless for a century after the Civil War, that’s no reason to believe that there could possibly be any ramifications that last longer than a minute or two. If those people are struggling, well, they should just pull themselves up by their bootstraps. And if they can’t do that, in the immortal words of President Romney, they should borrow money from their parents so they can start their own business.

    Next up: Doug jumps in to explain why people making fun of Jack Welch is exactly like him being sent to a Soviet gulag, as he complains in the WSJ.

    Because the priveleges of the priveleged must never be questioned.

  6. @wr:

    Glad to see you’re in favor of ignoring the Constitution.

    And for the record, Jack Welch is an idiot.

  7. Tsar Nicholas says:

    What’s surreal about race preferences — and lily-white liberals in gentrified neighborhoods would be perplexed by it — is that like everything else the left has pushed upon the country it’s had pretty much the exact opposite effect. Look around amongst the licensed professions. How many black lawyers and doctors do you see? How many Latino engineers? How many racial minorities are accountants? How many hold Series 6, 7, 63, 24, etc.? Where’s the groundswell?

    The same way that rent control leads to higher rents, and living wage ordinances lead to less employment, and gun control laws lead to higher rates of gun crimes, and diversion programs lead to higher recidivism rates, etc., so-called “affirmative action” if anything leads to lower minority participation rates. Or at best no real change. At the cost further of dividing the country along racial lines.

    In law the dichotomy between the left’s fantasies are reality are too surreal to fathom. I went to the loopiest law school around. A sea of white people. Sure, of course, now it’s got a lot of Asian students, but is that what the left wanted to accomplish with race preferences? Obviously not. I worked at a huge law firm that’s based in Chicago. A sea of white. I worked at another huge law firm that’s HQ’d in New York. All white. In recent years I’ve taught CEB and NBI courses for other attorneys. All white. So on, so forth.

    Race preferences don’t work. They never have worked. They never will work. And to discriminate against whites so that effete liberals can preen at cocktail parties is one of the greatest scandals of all time. It’s high time these preferences get cast to the dustbin of history.

  8. David M says:

    @Tsar Nicholas:

    The same way that rent control leads to higher rents, and living wage ordinances lead to less employment, and gun control laws lead to higher rates of gun crimes, and diversion programs lead to higher recidivism rates, etc., so-called “affirmative action” if anything leads to lower minority participation rates.

    I don’t think “lead” means what you think it means.

  9. PD Shaw says:

    I attended a private school with racial preferences, which would be untouched by the Court’s decision. I believe that most, if not all, of the racial/ethnic minorities came from advantaged economic backgrounds and were not first generation to college. To me the silliness of Grutter is how non-diverse that type of environment is.

  10. wr says:

    @Doug Mataconis: Yes, Doug, I am in favor of ignoring the constitution, just like everyone else who ever disagrees with you. Because only you can interpret the constitution, and only your views are valid.

  11. Ron Beasley says:

    I am one of those dreaded “liberals” but I think it’s time to end affirmative action. There should have been a serious effort to make minorities competitive in the education system. We have spent a lot of money trying but it has not worked. Not nearly enough emphases on pre-school. If parents don’t read and spend time encouraging their children before school they are set up for failure. Rather than being fixed it has spread into the white middle class where parents have the ability but not the time to be actual parents. The electronic drug also known as television is also a factor- a very cheap baby sitter.

  12. rudderpedals says:

    If there’s anything left of Grutter after its evisceration, guts spilled on the floor a bloody mess, will minority and women sorts of preferences in government contracting be next?

  13. bk says:

    @Tsar Nicholas:

    Look around amongst the licensed professions. How many black lawyers and doctors do you see? How many Latino engineers? How many racial minorities are accountants? How many hold Series 6, 7, 63, 24, etc.?

    Instead of saying “black” lawyers or “Latino” engineers, change that to “How many minority doctors, lawyers, engineers and accountants do you see?” My answer is – quite a few.

    So much fail in your post, without even getting into your gratuitous asswipe

    everything else the left has pushed upon the country

  14. PD Shaw says:

    @Ron Beasley: I think if you look around you’ll find a number of liberals unhappy with the type of affirmative action supported by Grutter. Its a corporatist version of affirmative action, which is premised on the values racial diversity has for whites. Under the new affirmative action, a diverse education is valuate so whites can better sell goods to non-whites, they can compete in the global marketplace, they can learn from other points of view, and learn to understand minorities. It also means that the country would better be able to field minority officers to lead minority troops in war. I am paraphrasing the Court opinion here, or more precisely Justice O’Connor’s, whose views were probably solely her own anyway, but she got to write the majority opinion since she had the fifth vote.

    This decision was as Dave Schuler alluded to a pivot away from the previous central premise that affirmative action was intended to address historical de jure discrimination and offer a remedy for those harms. I agree that a better starting place is pre-k education, not fifteen years too late.

  15. superdestroyer says:


    Once would think that is the Supreme Court rules that universities must stop violating the civil rights of whites that someone will try to sue arguing that the federal government must stop violating the civil rights of whites.

  16. superdestroyer says:

    @PD Shaw:

    The students at UT-Austin would have a very diverse education without race-based affirmative action. The classes are full of foreign students from around the world. I doubt is most white students ever really interact with the few blacks who have been admitted under either the 10% rule or the race-based affirmative action.

  17. Ken says:

    @Doug Mataconis: I’ve never quite bought into the “past discrimination” argument. Why should current students be made to pay for something that stopped being policy long before they were born?

    Because it’s not about “being made to pay”.

    It’s about making sure that the people who weren’t born on third base have the same opportunity to score as those who were.

  18. Rob in CT says:

    I’m fine with shifting from racial to socioeconomic measures.

    I agree that a better starting place is pre-k education, not fifteen years too late.

    Hell, yes!

    Not unrelated:

    We want, generally speaking, a population of rule-following (within reason, of course! The rules need to be good ones), gratification-delaying, hard workers.

    All my life I’ve heard people talking about poor people and how they’re irresponsible and such. The point I’ve tried to make, without a lot of success, is that it’s all well and good to ask that people play the game the right way (stay in school, don’t do drugs, work hard, etc), but it will only work if they believe that it will actually work out for them. I’m a decent fellow, but it was easy for me to play the game right (mostly… I was a teenaged boy once) because I KNEW – just KNEW – that if I played the game right I’d do well. All I really had to do was not screw up. What if I hadn’t known that? What if, instead, all indications were that I’d still lose? Would I be such a good citizen then? I don’t know. I was raised well, so perhaps I’d have held up. But it would’ve been harder. And I’ve been known to have impulse control issues from time to time 😉

    To bring this back to A.A. – the goal here is to give disadvantaged people a leg up. I strongly support that. If we want it to work, the path to success has to be plausible. So whatever programs are set up, reformed… whatever… it won’t work well if the very people we’re trying to help believe the game is rigged and they’re screwed.

  19. Rob in CT says:



    I used to be exactly where Doug is now. About 15 years ago, when I was still in college.

    Balancing out privilege is always going to be perceived by the privileged as an attack. I got over it. It’s not an attack.

  20. grumpy realist says:

    I’ll be willing to get rid of Affirmative Action the day the universities get rid of legacy admissions. Deal?

  21. Rob in CT says:

    Good point, GR. That should go too.

    I’d make that deal w/o missing a beat.

  22. mannning says:

    There is a regress here, in that improvements should begin with educating, influencing, and motivating parents to see their chlidren succeed from K on, but, as many teachers testify, far too many parents of the underpriveleged are indifferent or even hostile to the school system, to the teachers and to disciplining their children, which was the case for their parents, and their parents..back in time. The parents must work, and often work brutal hours that preclude spending very much time with their kids and creating a good learning environment for them at home. This leaves the kids to bootstrap their way upwards, perhaps with some assistence from the teachers or other mentors that happen along.

    The cure for this deficiency at home resides in those who have managed to bootstrap their way up; there will be no regress in their homes, I believe, which augers well for generations to come. Meanwhile, the question is, “who is focusing on the problems of today’s parents, and how?” Then, too, at college time, who is lending a helping hand to these “bootstrappers” to give them a chance at a degree? Should they receive AA of some sort?

  23. superdestroyer says:


    Most of the minority professionals are Asians who get no benefits from affirmative action. If recent immigrants from Asian can succeed in the U.S. while having to learn a new language, why can’t blacks who have been here for generations succeed. Are whites really racist in favor of Asians and against blacks or is the problems with black culture in the U.S. ?

  24. superdestroyer says:

    @grumpy realist:

    When the Jennifer Gratz was successful in her lawsuit it was shown that the University of Michigan gave race a much higher score than being a legacy. One their 150 point scale, being a legacy worth 4 points and being black was worth 20 points.

    Of course, progressives have had a decade since Gratz and Grutter to make proposals concerning the eliminaiton of legacy admissions and have refuse to do anything. There is no reason for the government to deny Americans due process because of their race just because legacy admissions exist. Maybe progressives just like the idea of discriminating against whites and Asians.

  25. CSK says:

    @grumpy realist:

    Legacy admissions will never go. In the first place, their parents and grandparents (and any further-back forebears who went to the university or college) tend to be heavy, heavy donors. In the second place, legacies are often–not always, but very often–full-pay students, meaning that the parents can write a yearly tuition check for $52,000 without a second thought. AA students, on the other hand, cost the college or university money. And their parents or guardians won’t be writing a one million dollar check to the endowment fund any time soon.

  26. grumpy realist says:

    @CSK: Well, it seems to me the same arguments against Affirmative Action can be held against legacy admissions. If they’re not up to the work academically, why should they be admitted?

    And it seems to me the very existence of legacy admissions show why we need affirmative action admissions.

    (I agree with your arguments, by the way. Unversity == credentialism == getting into the network. So much for the leg-up for the disadvantaged….)