It would be 25 years, Justice Sandra Day O’Connor wrote.
The court validated affirmative action in a foundational decision, Grutter v. Bollinger (2003), which involved the University of Michigan Law School. Justice Sandra Day O’Connor, writing for the court, emphasized racial diversity’s importance in elite academic environments.
Nevertheless, she also stated that “race-conscious admissions policies must be limited in time.” Toward the opinion’s end, she noted that 25 years had elapsed since Justice Lewis Powell provided the decisive fifth vote to uphold affirmative action in Regents of the University of California v. Bakke in 1978. Then, in Grutter’s most arresting feature, she concluded, “We expect that 25 years from now, the use of racial preferences will no longer be necessary.”
Some of you won’t remember Bakke, but it shook up the world by holding that race could be lawfully used as a factor in admissions in order to achieve a pedagogically valued diverse student body. But as Chief Justice John Roberts wrote in 2007, “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”
The Supreme Court will hear oral argument in suits against Harvard and University of North Carolina for discriminating against Asians. Between what the Court did with Dobbs and the conservative majority, the assumption is that affirmative action is dead. Even the Court’s newest liberal, CJ Roberts, isn’t a fan of affirmative action.
Yale law prof Justin Driver argues that rumors of affirmative actions demise may be greatly exaggerated.
Fortunately, reports of affirmative action’s demise have been greatly exaggerated. Several plausible reasons suggest that the Supreme Court may not kill affirmative action — at least not with such alacrity. Even if most of the justices wish to end affirmative action, authoritative legal considerations may nevertheless compel the court to issue a decision permitting it to exist until June 2028. Given that the Harvard and UNC cases will almost certainly not be resolved until next summer, this approach would provide universities with a five-year reprieve before they adjust to a post-affirmative action world.
From the Kendian “anti-racist” perspective, admissions should be more race conscious, discriminating openly on the basis of race until such time as equity was achieved. But then, this has been going since before Bakke, and is now fairly deeply ingrained in college admissions culture, and yet here we are, still engaging in this debate 44 years after the Supreme Court decided Bakke.
It may be tempting to dismiss Grutter’s quarter-century horizon as mere loose talk. After all, sunset provisions are fundamentally the province of the legislature, not the judiciary. On this account, it seems absurd to view Grutter’s 2028 expiration date as meaningful, let alone as cognizable legal authority.
Upon reflection, though, Grutter’s time frame is not something that can be haphazardly disregarded. When Grutter initially announced that the sun would set on affirmative action 25 years hence, the policy’s supporters excoriated that timeline as woefully aggressive and naïve; today, however, that once-reviled statement has improbably become the last best hope to extend affirmative action beyond the coming year.
Driver’s argument, ironically, is that the 25 year window may be the best argument in favor of sustaining affirmative action, at least until 2028 if one takes Justice O’Connor’s 25 years technically and from Grutter rather than Bakke, which was decided 25 years before Grutter.
No, there was no sound empirical basis for Justice O’Connor to pull 25 years out of nowhere as the sunset for the Court’s winking at the Fourteenth Amendment. While Justice Jackson makes a strong originalist argument that the Equal Protection Clause was intended to be race conscious, to favor black people, former slaves, in order to achieve equality with white people, was it intended to continue in perpetuity or was there an intention that at some point in time, we would forbid discrimination on the basis of race?
The case coming before the Supreme Court, however, reflects a variation on a theme as it involves Asians, another “race” that was subject to severe discrimination and have distinguishing physical characteristics that impede their blending in like, say, Jews, Italians and Irish, even if there remains lingering discrimination against them.
It was one thing to argue “reverse discrimination” against white people, as was the case in Bakke, and discrimination against another group with distinguishing features, a history of severe discrimination, that somehow managed to be too omnipresent in their qualification for admission that they had be putatively dinged for their “personality.”
The assumption in the earlier cases was that given the opportunity for a window to overcome discrimination, it would enable black students to gain admission on their own merits such that they would no longer need to get extra credit for their race. Is 25 years enough time for this to happen, given the depth of discrimination against black people for so long? What happens if it takes another 50 years for black people to overcome the legacy of discrimination that’s prevented their doing what Asians have managed to do? What happens if the day never comes?
Inside the Supreme Court, the nation’s pre-eminent legal advocate of civil rights — Justice Thurgood Marshall — agreed that affirmative action would be required for generations. When the justices gathered in conference to consider Bakke, the question of duration arose, and he contended that the policy would be needed for 100 years. At this, Justice Powell blanched, deeming it an unfathomably long period.
Do not be shocked if the Roberts court announces next June that it will, in effect, split the difference between Justices Marshall and Powell, permitting affirmative action to reach the five-decade mark. Time will tell.
As Driver notes, some of the conservative justices are not as hostile to affirmative action as many assume, that “Justices Kavanaugh and Barrett and — against all odds — Chief Justice Roberts” may well join with the “liberal wing” of Justices Kagan, Sotomayor and Jackson to extend the time frame for affirmative action to work its magic. As Justice Marshall recognized, the legacy of slavery, Jim Crow and all that’s happened since will take generations to overcome.
Perhaps a time will come when we will overcome the legacy of slavery or, at least, decide that we’ve done all we can and it is what it is. The problem for now is that it’s not just white students, but Asian students, who are paying the price for well-intended efforts, something that likely wasn’t anticipated when Justice O’Connor gave us 25 years to bring discrimination to an end.
The Court was trying to prevent allocation of opportunities by race as a matter of simple racial politics, but ended up actually perpetuating that practice instead. Perpetual duration of race-based programs conflicts with the notion that they should be “narrowly tailored.” Also, as we are past the 40-year mark, the contention that race-based programs are still needed is concurrently a concession that they haven’t worked despite over forty years of implementation. As the great Jesse Jackson has recurrently proclaimed, it is insane to keep doing the same thing while expecting a different result.
In the early cases, it was presumed that students were fully qualified regardless of race, and then race would be a “plus factor” in order to achieve a diverse student body. Whether or not that was wise, we are now at a place where standardized tests are being discarded because black students do worse on them than others, curriculum is being dumbed down. grades are adjusted or eliminated and the pedagogy is no longer competitive and merit based and nobody should be allowed to flunk out.
The problem is AA is still discussed and thought about as the former, while the latter is what’s happening, though it’s impolite to raise it in arguments.
Agreed. Which is why Greenfield’s take is particularly off today. It’s not so much white and Asian students that suffer but society as a whole, sliding into Idiocracy on a path paved with race and gender based revanchism.
And before you say it- I’m not claiming the way to fix disparities is to shove our heads in the ground like Roberts. I think bussing should have continued- it put wealthy skin in the game that is school administration. And it was fair. College admissions must be based on merit.
Hard as I try, I see nowhere in the post that Scott argues that students should be admitted if they aren’t fully qualified.
When should the clock start running? Should it be from the end of slavery, or perhaps from the end of segregated and unequal schools, or maybe from the end of government sanctioned discrimination in voting, or the end of government sanctioned redlining in real estate?
Sorry Sandra. When your country is so racist that it’s “anti-racism” becomes a vehicle of white supremacy, your estimate of 25 years becomes even further off the mark with every passing year.
“Disparate impact” could be the way forward. “Color blind” class-based policies will have disparate benefit and are a de facto affirmative action. Instead it’s used as a way to entrench a new racism that profits from the gaps by removing symptoms while ignoring and exacerbating underlying causes. The end point gets more distant with time, not closer.
I use to think that the Civil Rights Movement was about eliminating special privileges based on race. Over time, I came to realize that while many opposed special privileges for “others” that they love special privileges for their own “group”.
Feudalism continues its proud march through history.
AA, and all other “programs and policies” used to cater to black inefficiencies over the last 60- some odd years have only served to MAINTAIN that level of inability, “dumbing- down” course materials and testing to give a false sense of accomplishment. All they did was manage to corrupt the entire school system apparatus whereby failing anyone, especially a black child was simply no longer an option.
The entire premise has always and only seemed to me to be utterly insulting to an entire race of peoples, subliminally (and not so subliminally) that you can never make it without “special provision”, as if they are congenitally handicapped. Why anyone thinks this is good thing, especially black people in general is to me the height of irrationality.
Complex problems/issues have complex causes and the majority of members species homo sapiens sapiens are incapable of understanding them and in fact their may be no intelligence yet on this planet capable of doing so.
Behind every issue considered a social problem lies a network of causal elements that is so complex that to diagram it on a whiteboard one would need one the size of a county. This network consists of a hierarchy of sub-networks such as sets of causal elements in parallel, in series, negative causes, positive and negative feedback loops, nonlinear (chaotic) relations between cause and effect. Some complex systems like the climate, the economy, he financial markets and the weather are described by mathematics of chaos theory including fractals and Mandelbrot sets. These systems are intrinsically .unpredictable because the simplifications in creating models manageable to human intelligence separate them too far from reality. I suspect that for a science of history we would need a technology to look SIDEWISE IN TIME to observe alternate histories in which for example Napoleon’s army won the battle of Waterloo because the weather on that day was fine and the impeding of it by deep muddy ground did not render the French cannon fire ineffective as happened in our version of the battle of Waterloo.
Some issues are OVERDETERMINED because there are many parallel casual elements A, B, C, D ….. etc tending in the same direction and proponents of action against any one of these elements spend as much effort impeding action against other than their favoured element as they do advocating their own. The disadvantage of coloured people in the US may be so OVERDETERMINED that ANY progress is ACTUALLY IMPOSSIBLE.
I used to think that “merit” was the only valid criterion. I was probably 16 or 17. Since then, after having become a little more aware of some people who generated high academic credentials, I’m much less sure just what constitutes “merit.” I have come to think diversity for its own sake is a worthwhile goal, not an evil, just as advertisers strive to put as many different types of faces as they can in their commercials. Next, what is the goal of so-called “elite” educational institutions? To produce hedge fund managers who become so rich they can buy sports teams or lawyers who can bust the most unions or pharmaceutical executives who can most profitably manipulate patent law? Last, if [fill in blank] got into….