Supreme Court Affirmative Action CaseHighlights: Supreme Court Hears Affirmative Action Cases From Harvard and U.N.C.
The justices heard two cases concerning admissions programs that take into account race to foster educational diversity. The conservative supermajority appeared ready to reconsider decades of precedents and to rule that the programs were unlawful.
WASHINGTON — The Supreme Court on Monday appeared ready to rule that the race-conscious admissions programs at Harvard and the University of North Carolina were unlawful, based on questioning over five hours of vigorous and sometimes testy arguments, a move that would overrule decades of precedents.
Such a decision would jeopardize affirmative action at colleges and universities around the nation, particularly elite institutions, decreasing the representation of Black and Latino students and bolstering the number of white and Asian ones.
Questioning from members of the court’s six-justice conservative majority was sharp and skeptical. “I’ve heard the word diversity quite a few times, and I don’t have a clue what it means,” Justice Clarence Thomas said. “It seems to mean everything for everyone.”
Justice Samuel A. Alito Jr. asked a similar question about the term “underrepresented minority.”
“What does that mean?” he asked, adding that college admissions are “a zero-sum game” in which granting advantages to one group necessarily disadvantages another.
If the court does away with affirmative action by the end of its current term, it would represent the second time in the space of a year that its conservative supermajority has jettisoned decades of precedent to overturn a policy that has helped define American life. But as its decision in June eliminating the constitutional right to abortion made plain, members of that majority have not hesitated to take bold steps on divisive issues.
A ruling against the universities would be further evidence of the court’s rightward lurch after President Donald J. Trump’s appointment of three justices, and it could raise fresh questions about whether the court’s approach to precedent threatens the stability of the law and the court’s own legitimacy.
Chief Justice John G. Roberts Jr., who views himself as the custodian of the court’s independence and authority, may have conflicting impulses in the cases argued Monday. He has long been critical of drawing distinctions based on race. His questions about race-neutral means of achieving diversity suggested that he might be pursuing a characteristically incremental path. That approach could limit the sweep of a decision rejecting race-conscious programs.
In general, two themes ran through questions from the court’s conservatives: that educational diversity can be achieved without directly taking account of race and that there must come a time when colleges and universities stop making such distinctions.
The court’s three liberal members put up a spirited defense.
Justice Sonia Sotomayor said “race does correlate to some experiences and not others.”
“If you’re Black,” she said, “you’re more likely to be in an underresourced school. You’re more likely to be taught by teachers who are not as qualified as others. You’re more likely to be viewed as having less academic potential.”
Justice Ketanji Brown Jackson said it would be odd if admissions officers could consider factors like whether applicants were parents, veterans or disabled — but not if they were members of racial minorities. That has “the potential of causing more of an equal protection problem than it’s actually solving,” she said.
Justice Elena Kagan said she was worried about “a precipitous decline in minority admissions” if the court were to rule against affirmative action in higher education. “These are the pipelines to leadership in our society,” she said of elite universities.
Over the course of the argument, the justices discussed with seeming approval several kinds of race-neutral approaches: preferences based on socioeconomic status; so-called top 10 programs, which admit students who graduate near the top of their high school classes; and the elimination of preferences for children of alumni and major donors, who tend to be white.
Justice Amy Coney Barrett asked whether it would be permissible for minority students to write essays describing their experiences with race discrimination. Patrick Strawbridge, a lawyer for Students for Fair Admissions, the group challenging the programs, said that was fine.
“What we object to,” he said, “is a consideration of race and race by itself.” Personal essays are different, he said. “It tells you something about the character and the experience of the applicant other than their skin color,” he said.
Similarly, Mr. Strawbridge said, an Asian American student might write about traveling to a grandparent’s home country.
Chief Justice Roberts said that such a student would not be a “very savvy applicant” because “the one thing his essay is going to show is that he’s Asian American, and those are the people who are discriminated against.”
Seth P. Waxman, a lawyer for Harvard, later said that it did not discriminate against Asian American applicants, though he did not contest that on average they received lower ratings for personal qualities at an early stage of the admissions process.
Mr. Waxman said that many factors contributed to whether students were admitted.
“Race for some highly qualified applicants can be the determinative factor,” he said, “just as being an oboe player in a year in which the Harvard-Radcliffe Orchestra needs an oboe player will be the tip.”
Chief Justice Roberts seemed taken aback. “Yeah,” he said. “We did not fight a Civil War about oboe players. We did fight a Civil War to eliminate racial discrimination, and that’s why it’s a matter of considerable concern.”
Justice Kagan asked Mr. Strawbridge whether universities could put a thumb on the scale in admissions decisions to ensure that men were adequately represented in an era in which most college applicants are women.
Mr. Strawbridge said that question would be governed by a less demanding legal standard than the one that applies to distinctions based on race.
Justice Kagan said the differing treatment “would be peculiar,” adding that “white men get the thumb on the scale, but people who have been kicked in the teeth by our society for centuries do not?”
Mr. Strawbridge said there should be no preference for white men, but “men could perhaps” gain an advantage.
Elizabeth B. Prelogar, the U.S. solicitor general, argued in support of the universities in both cases. “When students of all races and backgrounds come to college and live together and learn together, they become better colleagues, better citizens and better leaders,” she said.
She said that kind of educational environment is particularly vital to the military and that other institutions, including the Supreme Court, still had work to do.
In the two weeks of arguments that began Monday, she said, 27 lawyers are scheduled to argue. “Two are women,” she said, “even though women today are 50 percent or more of law school graduates. And I think it would be reasonable for a woman to look at that and wonder, Is that a path that’s open to me, to be a Supreme Court advocate?”
The court has repeatedly upheld affirmative action programs at colleges and universities, most recently in 2016, saying that educational diversity is a compelling interest that justifies taking account of race as one factor among many in admissions decisions.
When the court agreed in January to hear the two affirmative action cases, it consolidated them and said it would hear a single hour of arguments. The court decoupled the cases after the arrival in June of Justice Jackson, who recused herself from the Harvard case in light of her service on one of the university’s governing bodies.
The two cases are not identical. As a public university, U.N.C. is bound by both the Constitution’s equal protection clause and Title VI of the Civil Rights Act of 1964, which bars race discrimination by institutions that receive federal money. Harvard, a private institution, is subject only to the statute.
In the North Carolina case, the plaintiffs said that the university discriminated against white and Asian applicants by giving preference to Black, Hispanic and Native American ones. The university responded that its admissions policies fostered educational diversity and were lawful under longstanding Supreme Court precedents.
The case against Harvard has an additional element, accusing the university of discriminating against Asian American students by using a subjective standard to gauge traits like likability, courage and kindness, and by effectively creating a ceiling for them in admissions.
Both cases were brought by Students for Fair Admissions, a group founded by Edward Blum, a legal activist who has organized many lawsuits challenging race-conscious admissions policies and voting rights laws, several of which have reached the Supreme Court.
In 2016, the Supreme Court upheld an admissions program at the University of Texas at Austin, holding that officials there could continue to consider race as a factor in ensuring a diverse student body. The vote was 4 to 3. (Justice Antonin Scalia had died a few months before, and Justice Kagan was recused.)
Writing for the majority, Justice Anthony M. Kennedy said that courts must give universities substantial but not total leeway in devising their admissions programs. He was joined by Justices Sotomayor, Ruth Bader Ginsburg and Stephen G. Breyer.
Six years later, only one member of the majority in the Texas case, Justice Sotomayor, remains on the court.
The Texas decision essentially reaffirmed Grutter v. Bollinger, a 2003 decision in which the Supreme Court endorsed holistic admissions programs, saying it was permissible to consider race as one factor to achieve educational diversity. Writing for the majority in that case, Justice Sandra Day O’Connor said she expected that “25 years from now, the use of racial preferences will no longer be necessary.”
But several conservative justices said they doubted that universities would ever voluntarily stop taking account of race.
“When does Harvard anticipate this will end?” Justice Neil M. Gorsuch asked. Mr. Waxman responded: “Harvard’s view about when doesn’t have a date on it.”
Justice O’Connor’s statement suggested a deadline of 2028. Justice Brett M. Kavanaugh said the cutoff was looming.“The current admissions cycle is for the class of ’27. It’s going to be too late to do anything about that cycle. The next is the class of ’28.”
The court’s decisions in the two new cases — Students for Fair Admissions v. Harvard, No. 20-1199, and Students for Fair Admissions v. University of North Carolina, No. 21-707 — will probably land in June.
Now that the affirmative action arguments are complete, the justices will cast tentative votes at a private conference in the coming days. The senior justice in the majority will then assign the majority opinion to a colleague or, just as likely, keep it. Draft opinions, almost certainly including concurrences and dissents, will be prepared and exchanged.
On average, it takes the court about three months after an argument to issue a decision. But rulings in a term’s biggest cases — and these certainly qualify — tend not to arrive until late June, no matter how early in the term they were argued.
The University of North Carolina and Harvard admissions cases were initially consolidated, meaning that the court had intended to hear a single argument and issue a single decision covering both of them. But Justice Ketanji Brown Jackson, who had served on one of Harvard’s governing bodies, recused herself from the Harvard case, causing the court to separate them.
The court will now almost certainly issue separate opinions in the two cases, though it is possible that the challenge to the University of North Carolina case will do most or all of the heavy lifting and that the Harvard opinion will say little more than that the appeals court’s ruling is affirmed or reversed for the reasons stated in the U.N.C. case.
That is what happened in 2020, when the court decoupled a pair of cases on “faithless electors” that had initially been consolidated before Justice Sonia Sotomayor recused herself from one of them.
But there are enough differences between the affirmative action cases to justify separate opinions. Harvard is a private institution and is accused of violating a statute that forbids discrimination, while U.N.C., a public university, is accused of violating both the statute and the Constitution’s equal protection clause. In addition, questions about the treatment of Asian American applicants figure much more prominently in the Harvard case.
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The pitched battles over admissions at selective schools have not only been playing out at universities: They have also been waged at high schools in states like California, Virginia and New York. And these fights have helped mobilize Asian Americans to organize and become more politically active than ever before.
In San Francisco, Asian Americans — especially Chinese Americans — mobilized in large numbers this year to oust three members of the city’s school board. One driving reason for their high turnout was the board’s vote to put in place a lottery system at the highly competitive Lowell High School, replacing an admissions process that primarily selected students with the highest grades and test scores. That change in effect cut the number of Asian and white ninth graders at Lowell by around one-quarter and increased Black and Latino ninth graders by more than 40 percent, inciting backlash from many Asian parents.
During the campaign, organizers used WeChat, a popular Chinese-language messaging app, to encourage people to vote. They shared instructions on completing a ballot and organized the deployment of volunteers in Chinatown. Those efforts worked: While overall turnout was relatively low, at 26 percent, turnout among the 30,000 people who requested Chinese-language ballots was significantly higher at 37 percent.
Four months later, the newly reconstituted school board in San Francisco voted to reinstate merit-based admissions at Lowell for the fall of 2023.
Similar efforts to integrate selective schools in New York and Virginia have been met with fierce resistance from certain groups, including many Asian Americans.
The Supreme Court’s decision will almost certainly be limited to higher education as a formal matter, but its logic will apply to selective public high schools that seek to assemble diverse student bodies. Already there are lawsuits involving elite public high schools that have changed admissions criteria to eliminate standardized testing scores and focus on income, for example. In April, ruling on an emergency application, the Supreme Court refused to block such changes at one school, over the dissents of three justices.
After nearly five hours, that’s it. It will be no surprise if the Supreme Court holds onto these cases until the end of June, handing down its decisions as part of its traditional dramatic flourish of high-profile rulings at the end of the term.
As the session adjourns, Cameron Norris, a lawyer for Students for Fair Admissions, says that what is lost in all the arguments over legal points and statistics, is that racial classifications “increase racial consciousness” and “cause resentment,” by “treating people differently based on something they can’t change."
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The interpretation of Brown has also had major impacts on admissions at the K-12 level. When the court invalidated a voluntary integration effort in Seattle public schools in 2007, Justice Roberts wrote that limiting how race could be used as a factor in admissions was “more faithful to the heritage of Brown.” He memorably added that “the way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”
Prelogar, the U.S. solicitor general, delivers as a passionate defense of the 1954 Brown v. Board decision, as having brought children together. She takes issue with the Students for Fair Admissions argument that Brown called for race-neutral admissions and dictates overturning Grutter. This is an intriguing element of the case, explored here by my colleague Adam Liptak.
Affirmative action, as a term, came to the fore in 1935 with the Wagner Act, a federal law that gave workers the right to form and join unions. But John F. Kennedy was the first president to link the term specifically with a policy meant to advance racial equality, according to Smithsonian Magazine.
In 1961, Kennedy issued Executive Order 10925, establishing the President’s Committee on Equal Employment Opportunity and requiring federal contractors to “take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, creed, color or national origin.”
President Lyndon B. Johnson cemented the connection with his own, more expansive, executive order.
Over time, the term took hold in education as well, spurred on by the civil rights movement and social unrest, according to Jerome Karabel’s history of Ivy League admissions, “The Chosen.”
The assassination of the Rev. Dr. Martin Luther King Jr. in 1968 was a turning point, with students pushing colleges to redouble their efforts to be more representative of American society. Less than four weeks after Dr. King’s death, Harvard’s dean of admissions announced a commitment to enrolling a substantially higher number of Black students than in the past.
The dean said that a student who had “survived the hazards of poverty,” was “intellectually thirsty” and “had room for growth,” would be given preference, Dr. Karabel recounts.
For the Harvard class admitted in 1969, Black enrollment jumped. Of the 1,202 freshmen in the class, 90 were African American, up from 51 in 1968, a 76 percent increase, according to Dr. Karabel. Competitors like Yale, Princeton and Columbia also stepped up efforts to enroll Black students.
Through decades of legal decisions, the scope and meaning of affirmative action have changed — far from what schools may have first envisioned. No longer are universities allowed to use affirmative action as a remedy to alleviate centuries of racism in the United States. Now, affirmative action is legal if admissions programs seek to assemble varied student bodies, with race as one factor among many — but the enduring element of race is what is being challenged in court today.
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SKIP ADVERTISEMENTChief Justice Roberts has called Elizabeth Preloger, the solicitor general, “General Prelogar,” echoing the frequently heard error in congressional hearings when the attorney general is testifying and lawmakers call him “General Garland.” The word “general” is not a title here, like in the military; it describes how these lawyers cover the entire scope of legal issues facing the government rather than specializing in particular topics.
Justice Barrett is very interested in finding out when the “end point” will be for considering race in college admissions. It is a question she keeps asking.
Prelogar, the solicitor general, is delivering arguments similar to what she said earlier today in the University of North Carolina case — that a decision overturning Grutter would have “destabilizing” effects on government and businesses.
Elizabeth Prelogar, the U.S. solicitor general, is back.
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WASHINGTON — Two rallies held outside the Supreme Court showed the divisiveness of affirmative action.
On Monday morning, as the justices heard arguments in cases challenging whether race can be a factor for admissions at the University of North Carolina and Harvard, a diverse group brandished signs reading, “I am not a wedge,” “Not your model minority” and “Solidarity is power.”
Attendees included about 100 students from the schools whose policies are being challenged, as well as dozens more representing civil rights groups and other universities. A brief deluge did not dissuade the crowd, which continued to chant its support for affirmative action over the sound of heavy raindrops.
A day earlier, another crowd, mostly made up of Asian people, also gathered in front of the Supreme Court, this time to protest the practice, which they said discriminated against Asians.
Holding signs like “I am Asian American, I have a dream too” and “My race should not hurt me in admissions,” the crowd shouted slogans like “They want diversity! We want meritocracy!”
Activists, parents and students, some of whom had traveled from as far as California, as well as first-generation immigrants, were among the attendees.
Sharon Liang, 50, a first-generation Chinese American from Potomac, Md., said she wanted her teenage daughter, Alyssa, to witness what she called “a very important event for Asian Americans.”
“The ideal of diversity sounds nice, but the way that they have implemented it has not been working,” Ms. Liang said. “They have put Asians in the position of being a scapegoat.”
William Wang, 53, of Rockville, Md., said that the pursuit of racial diversity on campuses had overshadowed other important goals, like the diversity of intellectual thought and socioeconomic background.
“Why should Obama’s children automatically be privileged in admissions over my own just because of their race?” said Mr. Wang, who emigrated from China in the 1980s.
Some attendees said they had been relatively uninvolved in politics until a few years ago.
“I had never rallied before,” said Suparna Dutta, a co-founder of Coalition for TJ, which was formed in August 2020 to oppose changes to the admissions process at Thomas Jefferson High School in Fairfax County, Va., that were meant to attract more Black and Hispanic students.
“But you know, when you come for our children, it’s very personal,” added Ms. Dutta, who was recently appointed to Virginia’s Board of Education by Gov. Glenn Youngkin.
On Monday, dozens of students and alumni from Harvard, Yale, Howard University and other colleges joined a crowd outside the Supreme Court.
Jonathan Loc, 26, an Asian American graduate student at Harvard’s Kennedy School of Government, said that being part of a diverse student body had opened his eyes to inequities and an array of cultural perspectives. He argued that there was “no definitive proof” that the school discriminated against Asian American students.
Mr. Loc said that the lawsuit, backed by the conservative legal entrepreneur Edward Blum, was “disingenuous” and did not represent all Asian Americans. “If he was really with the Asian American community at Harvard, he would be advocating for a multicultural center, advocating for ethnic studies, advocating for more diverse professors.”
His classmate, Lindsey Batteast, 24, said that as a Black woman with a disability, she believed that affirmative action gave her a chance to share her story with Harvard, but that it had also allowed her to enrich the institution.
“People of color bring cultural capital,” she said, adding, “We bring cultural differences that contribute in innovation and thinking and pushing the needle forward.”
If colleges were no longer allowed to consider race in admissions, she worried that the country would begin to roll back other civil rights protections.
Nathan Mai, 18, a member of Yale’s Asian American Students Alliance, said the argument that considering race in admissions discriminates against Asian Americans “misconstrues the definition of affirmative action and creates a misconception around the admissions process in general.”
“I believe the admissions process does not hold race as center to the process,” he said. “Rather, race is used as a contextualizing factor. Therefore, affirmative action actually makes the process more meritocratic because it makes the process more equitable.”
The decisions in these cases could also prompt challenges to how K-12 schools pursue desegregation. In places like New York City, attempts to increase the number of Black and Latino students in some highly selective public schools have faced pushback, as critics similarly argue the efforts can come at the expense of Asian Americans. Still, research shows that only a small number of school districts have active integration plans.
As Waxman spoke about Harvard trying to get away from using race as a factor in admissions, the justices let him talk for an unusually long time without interrupting. Finally, Justice Gorsuch asks when the practice will end. “Harvard’s view about when doesn’t have a date on it,” Waxman says.
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SKIP ADVERTISEMENTIn 2016, in its last major case on affirmative action in higher education, the Supreme Court upheld an aspect of an idiosyncratic admissions program at the University of Texas at Austin. In the process, it reaffirmed the distinction the court had drawn in earlier cases: that numerical quotas were unlawful but that taking account of race as one factor among many to achieve educational diversity was permissible.
The case was brought by Abigail Fisher, a white student who said the University of Texas had denied her admission because of her race.
In Texas, students in roughly the top 10 percent of their high schools were automatically admitted to the public university system. That policy did not consider race but increased racial diversity in part because so many high schools in the state are racially homogeneous.
Ms. Fisher just missed that cutoff at her high school in Sugar Land, Texas, and then entered a separate pool of applicants who were admitted through a system in which race played a role.
Ms. Fisher argued that Texas could not have it both ways. Having enacted a race-neutral program to increase minority admissions, she said, Texas could not supplement it with a race-conscious one.
Justice Anthony M. Kennedy, writing for the majority, upheld the race-conscious program, saying that courts must give universities substantial but not total leeway in devising their admissions programs.
“A university is in large part defined by those intangible ‘qualities which are incapable of objective measurement but which make for greatness,’” Justice Kennedy wrote, quoting from a landmark desegregation case. “Considerable deference is owed to a university in defining those intangible characteristics, like student body diversity, that are central to its identity and educational mission.”
“But still,” Justice Kennedy added, “it remains an enduring challenge to our nation’s education system to reconcile the pursuit of diversity with the constitutional promise of equal treatment and dignity.”
Affirmative action is used in college and universities in about a quarter of countries around the world. Most of the programs have emerged within the last 30 years, according to research in the mid-2010s by Michele S. Moses, a professor at the University of Colorado Boulder, and Laura Dudley Jenkins, a professor at University of Cincinnati.
In China, students who are not members of the country’s dominant ethnic group have historically been able to get into schools with lower test scores. In France, several selective institutions intentionally seek to admit students from schools in disadvantaged areas. In Brazil, a 2012 law set aside about 50 percent of seats at many federal universities for those who went to public high schools and to groups who have experienced discrimination, including Black and Indigenous students.
In one of the more contentious approaches, public colleges in India must adhere to quotas for disadvantaged groups. Communities who do not benefit from the quotas have argued that they spur resentment and exacerbate divisions.
But India’s system is written into its constitution. It requires universities to set aside 22.5 percent of seats for lower castes, including Dalits, who have experienced less economic mobility than others. Today, nearly 50 percent of spots in India’s public higher education institutions are reserved for members of those groups. The quotas also apply to government jobs.
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SKIP ADVERTISEMENTSome supporters of affirmative action say that they are not arguing that there is no discrimination against Asians in the Harvard admissions process. They say there are many implicit biases in the process that can work against Asian Americans, including lower teacher/guidance counselor recommendations and the preferences given to legacies and the children of faculty members.
Waxman, Harvard's lawyer, says that it has increased outreach to groups that assist students of lower socioeconomic status and has also increased financial aid over two decades, exploring race-neutral methods to boost campus diversity. “The notion that Harvard is doing things the same way and is always going to do things the same way is just wrong,” he says.
Waxman offers an argument against the idea that colleges can take race into account but only if a Black applicant writes about personal racial experiences. He says Harvard is attempting to have a class whose diversity is not limited to people for whom their racial identity and experiences are of such importance that they are compelled to write about it.
If the Supreme Court significantly limits the use of race-conscious admissions, the fallout at the nation’s elite universities could be extensive. But for most students who pursue higher education, it will have little impact.
Most students attend institutions like two-year community colleges or public universities that accept most, if not all, of their applicants. A majority of colleges and universities across the country accept more than half of their applicants, according to a 2019 analysis by the Pew Research Center, and do not consider race or ethnicity as a factor in admissions. Many nonselective schools accept 90 percent or more of applicants. Among four-year colleges, just under half gave any weight to an applicant’s race. And at only a quarter of those schools, surveys show, did race have a moderate to considerable influence on decisions.
These less selective schools are attended by millions of students. They can be engines of social mobility in local communities, but they are also often racially and socioeconomically homogeneous, research in the 2010s found.
Wil Del Pilar, the vice president of higher education policy and practice at the Education Trust, said he still worried that a far-reaching ruling ending affirmative action could make less selective schools “more conservative around how they treat race,” and could cause them to take steps such as rolling back programs in subjects like Latin American or Black Studies.
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SKIP ADVERTISEMENT“Did Harvard sell Justice Powell a bill of goods” about the fairness of its admissions process, Alito asks. Would he have held it up “as an exemplar,” Alito says, if he knew of Harvard’s history of discrimination against Jews? Waxman, the university's lawyer, calls that a "terrible stain."
Harvard’s admission dean has testified in the past that one reason Asian-American applicants as a group score lower than white applicants in the “personal rating” portion of the school’s admissions process is because of weaker teacher and guidance-counselor recommendations. That seems to be the argument that Waxman is also making here.
Yes, race can sometimes be determinative of who is admitted, Harvard’s lawyer concedes, just as Harvard may admit an oboe player if its orchestra needs one. “We did not fight a civil war about oboe players,” the chief justice shoots back.
In its complaint, Students for Fair Admissions accused Harvard of lumping “all Asian Americans together in the admissions process,” to their detriment. But supporters of affirmative action argue that many Asian Americans benefit from race-conscious admissions policies.
Contrary to the stereotype of Asians as model minorities, the income gap between the rich and the poor in the United States is greatest among Asians, who are considered the most economically divided group in the country, according to the Pew Research Center. There are wide disparities in educational attainment levels among ethnic subgroups as well. While 79 percent of Indians and 83 percent of Taiwanese in the United States are college graduates, 21 percent of Cambodians, 18 percent of Laotian and 16 percent of Bhutanese hold bachelor’s degrees, according to the latest census data.
Several students who say they personally benefited from affirmative action testified in federal court in 2018 on behalf of Harvard. One was Sally Chen, the daughter of working-class Chinese immigrants who speak very little English. In her personal statement for Harvard, Ms. Chen said she wrote about how growing up in San Francisco and advocating and translating for her family had shaped her passion to do work that would help others experiencing similar struggles.
Ms. Chen, who was later allowed to see her admissions file, saw that admissions officers had taken note of her low-income immigrant background and written that she had the potential to make a “contribution to college life” that would be “truly unusual.” She gained admission to Harvard even though, as Ms. Chen has written, her test scores were “far from perfect.”
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SKIP ADVERTISEMENTA single justice’s opinion in a fractured 1978 decision has been the touchstone for the Supreme Court’s treatment of affirmative action in higher education ever since.
The case, Regents of the University of California v. Bakke, divided the court into two competing four-member wings. One set of justices would have upheld the admissions program at the medical school of the University of California at Davis, which had specifically reserved seats for minority students. Another set would have said that a federal law banned the use of race in admissions decisions.
Justice Lewis F. Powell Jr. found a middle position. He voted with the second group to strike down the admissions program, saying it amounted to an unconstitutional quota, and he ordered that the plaintiff, Allan Bakke, be admitted.
“Preferring members of any one group for no reason other than race or ethnic origin is discrimination for its own sake,” he wrote. “This the Constitution forbids.”
But Justice Powell, supported by the first group, said admissions programs that took account of race as one factor among many could be justified to promote “speculation, experiment and creation” and ensure educational diversity.
That narrowed and shifted the terms of the debate over affirmative action, away from remedies for the centuries of mistreatment of Black Americans and toward admissions programs that seek to assemble varied student bodies by taking account of race as one factor among many.
Justice Powell’s opinion, which did not fully satisfy any of his colleagues, was adopted by the court in Grutter v. Bollinger in 2003. “We endorse Justice Powell’s view that student body diversity is a compelling state interest that can justify the use of race in university admissions,” Justice Sandra Day O’Connor wrote for the court.
Now Chief Justice Roberts is pressing Waxman, Harvard's lawyer, about statistics showing a pattern in which Asian applicants were admitted at a lower rate than applicants of other races with comparable grades and test scores. Waxman questions the data — the plaintiffs screened out a third of the admitted class in assembling it — and denies that it is evidence of discrimination.
Harvard’s lawyer says the personal rating is used “as a matter of triage,” to winnow the huge number of students who apply. He adds that Asian Americans getting a “marginally lower personal rating score, on average,” is no more evidence of discrimination against them than their gettting a marginal higher rating on academics and extracurriculars.
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SKIP ADVERTISEMENTWhile it is true that some Asian families feel they have to suppress their ethnic identity on their applications, others say they embraced their identity in successful admissions essays. An example is Sally Chen who, in testimony before the district court in 2018, said she wrote about acting as a translator for her parents who were working class immigrants in San Francisco.
The lawsuit against Harvard is not the first time an elite university has been accused of discriminating against Asian Americans in admissions. In the 1980s, Asian American scholars, parents and activists made similar accusations against more than a dozen universities, including Harvard.
At the time, the Asian American population in the United States was growing, and more Asian Americans were applying to college. But starting in the mid-1980s, community activists and organizations such as Chinese for Affirmative Action and the Japanese American Citizens League began to raise questions about bias at some of the most selective schools, arguing that admission rates for Asian Americans lagged those of other ethnic groups.
Eventually, in 1989, the chancellor of the University of California, Berkeley, apologized for admissions policies that he acknowledged had disproportionately hurt Asian Americans.
The next year, the Education Department concluded after an investigation that the math department of the University of California, Los Angeles, had illegally given preferences to white students over Asian Americans. Harvard was cleared of discrimination, but the department noted that Asian Americans were admitted at a lower rate than white applicants, which it attributed to preferences given to children of alumni and to recruited athletes.
Despite the parallels today, there is one key difference: The activists and groups who were spearheading the accusations in the 1980s were doing so, they said, in solidarity with communities of color. They were not asking to overturn affirmative action policies as a solution to discrimination.
At least one lawmaker, Representative Dana Rohrabacher, Republican of California, argued that affirmative action politics helped underrepresented Black and Hispanic students and squeezed out Asian Americans.
“The most satisfying part is that I managed to successfully separate what we were asking for from affirmative action,” L. Ling-chi Wang, a former professor at the University of California, Berkeley, told The New York Times in 2018.