On Monday, October 31, 2022, the Supreme Court of the United States heard oral argument in both Students For Fair Admissions v. Harvard and Students For Fair Admissions v. the University of North Carolina. [1] These cases are the latest challenge to race-conscious admissions policies at the nation’s elite universities. And they may be the last. Given the composition of the Court, it appears almost certain that Grutter v. Bollinger will be overturned, or at the very least, significantly narrowed. [2]
Conservatives have a 6-3 majority on the Court, and that block will likely view any explicit racial classification with great skepticism. But eliminating race from consideration is more complicated than eliminating a classification. Race is not so much a classification as it is intersectional, intertwined with other aspects of one’s identity. [3] The term intersectionality was coined by Kimberlé Crenshaw to describe the interlocking forms of discrimination Black women face. But its emphasis on how race is integral to someone’s experience of other categories of identity, such as gender, socioeconomic status, etc., shows that race cannot simply be a classification. It refuses to remain in a box. For example, it matters that a student not only made a varsity team but was the first member of their race to do so. Their experience of racial isolation, and of overcoming social obstacles related to their race speaks to the nature of that accomplishment. If the admissions programs had been designed around this reality, the goal of Justice Powell in his U.C. Regents v. Bakke (1978) opinion could have been achieved: race would have become part of an application, but ‘hidden’ in the process.
However, Grutter v. Bollinger (2003) complicates this. Nothing in Grutter requires an intersectional approach. Grutter did not specify how race could be considered. It only said that, “[u]niversities can, however, consider race or ethnicity more flexibly as a ‘plus’ factor in the context of individualized consideration of each and every applicant.” 539 U.S. 306, 334. Under Grutter, race can operate as an independent factor; it does not have to be intertwined with some other factor or considered as part of that other factor. Starting with Bakke, the holistic approach to race-conscious admissions allowed universities to consider race, but only as one factor among others, within a system where every individual competes for every spot. [4] Later, Grutter would specify that, since the goal is diversity, the weight of race and other factors must vary, based on the characteristics already present in the school’s student body and the other applicants in the pool. Grutter also clarified that the compelling interest in attaining the educational benefits of diversity justified the otherwise constitutionally invalid process of considering race. In defending the holistic admissions system in Fisher v. the University of Texas, the Solicitor General Verrilli highlighted how admissions officers in such systems “will look for individuals who will play against racial stereotypes…[t]he African American fencer; the Hispanic who has…mastered classical Greek.” [5] The Supreme Court upheld the admissions system in Fisher, showing how some of the Justices’ anxieties about racial classifications can be eased if race is considered in conjunction with other factors, not as a separate classification that could determine admission or rejection. [6]
But, holistic admissions systems obscure the role of race in the process. [7] Justice Ginsburg pointed this out in her dissent in the Gratz case. Released the same day as Grutter, the Gratz majority struck down an admissions program that gave race a set number of points within a system where every applicant had to gain a certain number of points to be admitted. Justice Ginsburg warned that, “[i]f honesty is the best policy, surely … [an] … accurately described, fully disclosed College affirmative action program is preferable to achieving similar numbers through winks, nods, and disguises.” [8] Within holistic admissions systems like Harvard’s and UNC’s, applicants do not need a certain number of points to be admitted, and admissions officers do not assign points to certain characteristics. [9] Rather, teams of admissions officers evaluate applicants based on all the factors present in the application and make a recommendation to admit or not, so it is nearly impossible to tell how much weight is given to each factor, absent sophisticated statistical analyses.
Nonetheless, in these systems, race remained one factor among many. Race remained a classification, and it was considered alongside other factors, instead of being intertwined with, or already a part of those other factors. In his Bakke plurality opinion, Justice Powell pointed to Harvard’s admissions system as an example of a plan that would meet the requirements of strict scrutiny, and in Grutter, the Court noted that “like the Harvard plan Justice Powell referenced in Bakke, the Law School’s race-conscious admissions program adequately ensures that all factors that may contribute to student body diversity are meaningfully considered alongside race in admissions decisions.” (Emphasis added.) [10] Race remained separate—and therefore suspect. The Grutter Court was already concerned about how much weight each one of those factors were getting in the admissions decision. As the Court explained, the admissions program at the University of Michigan’s Law School “did not contemplate that any single characteristic automatically ensured a specific and identifiable contribution to a university’s diversity.” [11]
The distinction between race as intertwined and race as an independent factor emerged again during the oral arguments for SFFA v. UNC and SFFA v. Harvard. Without this emphasis on how race intertwined with a candidate’s experience and accomplishments, the Justices’ had no choice but to attempt to draw out how this one element of an application gets used in the process. The Court appeared to not have a problem with an applicant writing about their racial identity, what it means to them, and how it has shaped their experience on an admissions essay. [12] But many Justices were concerned about how much of a plus race as a factor was getting in the process, and what an applicant had to show to get that plus. Justice Kavanaugh asked several questions about what would qualify as a racial plus. [13] Justice Alito asked a series of hypotheticals about an applicant who has a distant relative who was Native American, or an ancestor, or even if it was only family lore that he had ancestor—would that applicant still be able to check the box that says Native American, and potentially get the plus? [14] Justice Sotomayor and Roberts both asked questions about whether race was “determinative,” and for whom. [15] Justice Roberts specifically pressed Harvard’s counsel on this, asking, “but you will have to concede, if [race] provides one of many [pluses], that in some cases it will be determinative.” [16] Justice Gorsuch asked the Solicitor General about how the racial breakdown of applicants being admitted had stayed the same over time. [17] This anxiety over when and how race will be the determinative factor shows a concern for the weight this isolated classification gets in an obscured process.
Justice Jackson created a hypothetical scenario to emphasize the counterpoint, that race is not so much a classification as woven through an applicant’s experience. It involved two applicants to UNC, and it shows her concern for the way race is integral to someone’s family history, sense of self, and accomplishments as an individual:
The first applicant says: I’m from North Carolina. My family has been in this area for generations, since before the Civil War, and I would like you to know that I will be the fifth generation to graduate from the University of North Carolina. I now have that opportunity to do that, and given my family background, it’s important to me that I get to attend this university. I want to honor my family’s legacy by going to this school.
The second applicant says, I’m from North Carolina, my family has been in this area for generations, since before the Civil War, but they were slaves and never had a chance to attend this venerable institution. As an African American, I now have that opportunity, and given my family – family background, it’s important to me to attend this university. I want to honor my family legacy by going to this school. [18]
Her point was that race cannot be separated out from an applicant’s identity—it is never a single factor alone, a classification that can be regulated. And when the legal system tries to isolate this and prohibit it, those who are most disadvantaged by this are those who want the racial dimensions of their lives to be considered on their college applications. We will soon see how the Court deals with this dilemma.
Notes
[1] Docket 20-1199; Docket 21-707.
[2] Grutter v. Bollinger, 539 U.S. 306 (2003).
[3] Kimberle Crenshaw, Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory and Antiracist Politics, University of Chicago Legal Forum: Vol. 1989: Iss. 1, Article 8, at 150.
[4] Regents of the University of California v. Bakke, 438 U.S. 265, 319, 314 (1977) (“Ethnic diversity, however, is only one element in a range of factors a university properly may consider…”); Id. at 315 (“In such an admissions program, race or ethnic background may be deemed a ‘plus’ in a particular applicant’s file, yet it does not insulate the individual from comparison with all other candidates for the available seats”).
[5] SFFA v. University of Texas, Tr. 60
[6] Grutter, 539 U.S. 306, 337 (“There is no policy, either de jure or de facto, of automatic acceptance or rejection based on any single ‘soft’ variable”).
[7] Gratz v. Bollinger, 539 U.S. 244 (2003).
[8] See Gratz, 539 U.S. at 304–05 (Ginsburg, J., dissenting).
[9] Trial Findings of Fact and Conclusions of Law, Students For Fair Admissions, Inc. v. University of North Carolina, et al., No. 1:14-CV-00954-LCB-JLW, 22 (10/18/21) (noting how teams of admissions officers discuss the applications and decide admissions recommendations together).
[10] Grutter v. Bollinger, 539 U.S. 306, 337 (2003).
[11] Id.
[12] UNC Tr. 23:18-24:5 (Barrett asking Plaintiffs about someone writing about their race in an admissions essay); Id. 27:12-23 (Kagan asking the UNC Plaintiffs about what admissions officers can look at on an application, and the Plaintiffs responding that race can have some “contextual relevance” when evaluating the life experience of an applicant); Id. 33:13-25 (Alito asking about whether race has relevance in an essay beyond overcoming discrimination); Harvard Tr. 7:6-13 (Chief Justice Roberts asking the Harvard Plaintiffs about whether they object to an applicant writing about their race on an application).
[13] SFFA v. UNC Tr. 44:17; 45:12.
[14] Id. 97:24-99:5.
[15] Id. 17:1; 17:14; 156:22.
[16] SFFA v. Harvard Tr. 67:4-6.
[17] Id. 114:14-17.
[18] SFFA v. UNC Tr. 65:6-25.
Acknowledgment
I would like to thank Professor Vinay Harpalani, Lee & Leon Karelitz Chair in Evidence & Procedure at the University of New Mexico School of Law, for his incisive feedback on various drafts of this piece, and his continued support of my scholarship. All errors remain my own.
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