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.