Professor Richard Epstein: Affirmative Action On Shaky Ground

This past week, the Supreme Court heard extensive argument on the deceptively simple question of whether race can be considered in admissions at institutions of higher education. The matter of great urgency in both cases before the court (Students for Fair Admissions, Inc. v. President and Fellows of Harvard College and Students for Fair Admissions, Inc. v. University of North Carolina), is the extent to which minority students may receive a systematic boost in their applications on account of their race. Race could never be the only relevant element, for then all African-American applicants would get in before anyone else was considered. Instead, the key questions are how much of a “plus factor” is race and whether that boost for African-American students can be justified by some race-neutral criterion.

For these issues to receive a careful hearing, it seems necessary to start by asking how students from various groups succeed at Harvard or North Carolina. The narrower the gaps in performance, the smaller the problem of preferences. But not once during oral arguments was any mention made of variations in graduation rates, class rank, choice of major, or income across students of different races. Notably, also, no mention made of the “mismatch” theory advanced by Richard Sander and Stuart Taylor Jr., and endorsed by Thomas Sowell, which posits that minority students who receive race-based preferences at elite institutions fall behind their classmates after receiving a boost to gain admission. They become less competitive in the job market than they would otherwise have been if they had attended a slightly less demanding school where they could earn higher grades and build the skills and self-confidence needed to succeed after graduation. Though Justice Elena Kagan may well be on shaky ground when she suggests that the only entrance to the corridors of power is through elite academic institutions that supply only a small fraction of college graduates, her position has passionate support, in part due to a widespread, shared commitment to race-conscious admissions programs as necessary for the social advancement of minorities.

Justice Sandra Day O’Connor made just that point in Grutter v. Bollinger (2003), which upheld the University of Michigan Law School’s affirmative action admissions policies on the view that an applicant’s race may be considered as part of an individualized consideration of their whole file, i.e., as a “plus factor” accompanied by consideration of the applicant’s “academic ability coupled with a flexible assessment of [their] talents, experiences, and potential to contribute to the learning of those around them”—a position that, at the time Grutter came down, received strong support from both business and military leaders. That theme continues to resonate powerfully with today’s champions of affirmative action who insist, as does Justice Sonia Sotomayor, that a “holistic” approach is a legal and effective method of evaluating candidates. However, this argument runs into trouble from the get-go, as there is no reason to think that a rank order of students generated by some academic achievement-based index would fail to give an accurate impression of the overall distribution of admitted students—even when an applicant’s “soft factors” are taken into account.

Suppose that “soft factors” are used in admissions whose pool of total applicants consists of individuals of only one race. There is, in general, no reason to believe that strong boards and grades are negatively correlated with extracurricular activities, so that a holistic evaluation should not unduly upset the rank order from the objective criteria. When the same exercise is performed with both black and white applicants in the same pool, however, the same results should (but, in fact, do not) follow: a few students will move up or down, but certainly not at the remarkable rate in the so-called “holistic” review.

Both Harvard and UNC sought to soften the blow from this objection by contending that, while race might help a candidate, it surely cannot hurt them. But, as Cameron Norris (arguing for SFFA) insisted, that point is pure sophistry because what matters is rank order, so if all the “bonus points” are systematically awarded only to members of one, it necessarily tilts that balance in the same direction just as if “minus factors” were used.

Indeed, standardized tests were first introduced largely to prevent admissions officers from using “holistic review” in order to stack the deck in favor of individuals privy to privileged inside groups. And any deviation from the use of objective measures often had deleterious consequences. SFFA offered, in its complaint, the illustrative example of a strong Asian student whose stellar extracurricular activities complemented his powerful academic record. Unfortunately for that student, that winning combination did not save him from a Harvard rejection. The complaint also documented the unsavory history of Harvard’s admissions practices in the 1920s, when then-president A. Lawrence Lowell successfully capped the number of Jewish students by introducing an exclusionary “New Plan” designed to limit Jewish matriculants. This, in belated fashion, led Seth Waxman (a Jewish alum of Harvard arguing on his alma mater’s behalf) to actually apologize to the court for Harvard’s past “racist” actions. In Waxman’s view, the situation today is dramatically different because Harvard now has an elaborate admissions process involving a forty-person committee, and this arrangement is sufficient to avoid the wrongs of “a single Harvard president.”

Unfortunately, Waxman’s response misses the force of SFFA’s challenge. What matters in these cases is the result of the process—not the details of the process itself. And if race were merely one of many factors, the massive inversion of rank order tells us all we need to know about the potency race packs in the admissions analysis. It is, moreover, as Chief Justice John Roberts stated, a red herring to respond that Harvard also discriminates on other grounds, e.g., by giving special preferences to oboists to fill shortages in the orchestra. Harvard’s racial discrimination cannot be papered over by giving preferences to other subclasses of students (athletes, “legacy” students) unrelated to the Equal Protection Clause or Civil Rights Act.

Nor is it correct to claim, as Justice Ketanji Brown Jackson suggested in the UNC case, that no one has standing because it is impossible to identify particular students who might have gotten into either Harvard or UNC if they had followed a colorblind policy. Organizational standing allows the issue to be raised even in the absence of any named plaintiff—otherwise, the controversial practice would go completely unchallenged.

Nor can Harvard or UNC defend their programs by saying that is impossible to avoid taking race into account in evaluating student essays about their personal adversities. First, it is, of course, perfectly permissible to consider the adversities of black applicants, but only alongside those used of disadvantaged Asian or other applicants. It is also possible to limit the role of these essays only after making a strong first cut based solely on academic achievement, thereby using soft factors only for the strongest applicants. Harvard argued that it could not admit all the students that fell within its top cohort. But it is a non sequitur then to give it free license to look at individuals in lower tiers when a plethora of strong students remain in the top tier.

Nor is it compelling to appeal, as does Yale Law professor Justin Driver in the New York Times, to the arc of history by attributing great significance to Justice O’Connor’s famous prediction in Grutter that we “expect that twenty-five years from now, the use of racial preferences will no longer be necessary to further the interest approved today.” What weight are we to attach to this supposed sunset provision now that only nineteen years have passed since Grutter? The correct answer is no weight at all. O’Connor did not offer any evidence to support her position and, unfortunately, recent evidence indicates that there is no significant narrowing of the racial achievement gap, anyhow. At this point, the insistent question from the conservative justices, i.e., whether race-conscious admissions programs must be allowed until, or even if, parity is achieved, or whether they should be shut down right now, has some real bite, given that no clear test explains when this experiment should end—or even whether it has been a success or a failure.

So, Harvard and UNC have not done themselves proud. Here, I offer two final observations. First, the arguments above all assume that the nondiscrimination framework is in place. It seems clear, as Josh Blackman has argued, from the tenor of the oral arguments, that the conservative justices are operating squarely within this framework. Indeed, it is almost child’s play to predict the position of the individual justices on the basis of these arguments. Affirmative action as we know it is going to fall—it is just that no one knows exactly what adaptions will be made to preserve some fraction of the ingrained practices.

Second, there is a deep irony at play here. Namely, Harvard and UNC both want an exemption from the same antidiscrimination laws whose use they broadly support. For the few of us who think that these rules are suspect in dealing with competitive institutions, there is a measure of principled support for letting private institutions do what they want. And the Equal Protection Clause places much sharper limits on how the state administers the criminal law than on how it distributes benefits. But in this fevered atmosphere, there will be no attempt to return to first principles on either side of the debate. And as went abortion, so goes affirmative action.

Professor Richard A. Epstein, the Peter and Kirsten Bedford Senior Fellow at the Hoover Institution, is the Laurence A. Tisch Professor of Law, New York University Law School, and a senior lecturer at the University of Chicago.  This article was first published by the Hoover Institute's Defining Ideas.