The Real Reason Affirmative Action Is in Danger

Scalia threw a bombshell, but Roberts and Alito laid out an actual roadmap to roll back affirmative action

Antonin Scalia raised eyebrows with his comments about affirmative action — but his comments aren't the main reason affirmative action is at risk.
AP Photo/Rogelio V. Solis
Sam Baker
Add to Briefcase
Sam Baker
Dec. 20, 2015, 8 p.m.

If you want to know why the Su­preme Court is poised to strike a ma­jor blow to af­firm­at­ive ac­tion, fo­cus­ing on Ant­on­in Scalia’s com­ments about black stu­dents and “slower-track” uni­versit­ies might be miss­ing the point.

Scalia caused a firestorm last week when he sug­ges­ted that Afric­an-Amer­ic­an stu­dents might be bet­ter off at­tend­ing “less-ad­vanced” schools, so “they do not feel that they’re ­­that they’re be­ing pushed ahead in ­classes that are too fast for them.”

Scalia’s com­ment was a clumsy ref­er­ence to a much more nu­anced de­bate over “mis­match” the­ory. The premise of the the­ory is that stu­dents do best when the caliber of their uni­versity is matched to their aca­dem­ic per­form­ance in high school, and that pla­cing me­diocre stu­dents in chal­len­ging schools can some­times do more harm than good. Scalia grossly over­sim­pli­fied the the­ory by say­ing that “it does not be­ne­fit Afric­an-­Amer­ic­ans to get them in­to the Uni­versity of Texas.”

But Scalia’s con­tro­ver­sial view is not why the Su­preme Court is on the verge of sig­ni­fic­antly rolling back even the mod­est use of ra­cial pref­er­ences in col­lege ad­mis­sions.

The real reas­on has more to do with Chief Justice John Roberts’ knack for build­ing ma­jor­it­ies — and slowly, in­cre­ment­ally chip­ping away at policies, like af­firm­at­ive ac­tion and the Vot­ing Rights Act, that he sees as an­ti­quated hol­d­overs from a by­gone era of ra­cial dis­crim­in­a­tion.

For starters, Scalia is not the de­cid­ing vote on af­firm­at­ive ac­tion. That, al­most cer­tainly, would be Justice An­thony Kennedy, and Kennedy has con­sist­ently weighed af­firm­at­ive-ac­tion cases in nar­row­er terms than the sweep­ing com­ments Scalia made last week. Kennedy passed on a chance to strike down all af­firm­at­ive ac­tion pro­grams in 2013, the last time the court con­sidered the Uni­versity of Texas’ ad­mis­sions policy.

In that rul­ing, Kennedy said that pur­su­ing a more di­verse stu­dent body is a le­git­im­ate in­terest for state uni­versit­ies, and that some form of ra­cial pref­er­ence could be used to achieve it. But he said courts should hold uni­versit­ies to a heightened leg­al stand­ard, known as “strict scru­tiny,” when eval­u­at­ing the use of race in ad­mis­sions de­cisions. This time, the justices were de­bat­ing wheth­er Texas’ policy had met that stand­ard.

That’s where Roberts and Alito trained many of their ques­tions last week — and, un­like Scalia, they got Kennedy’s at­ten­tion. They sug­ges­ted Texas had not, in fact, done the home­work to prove that it needs to use race in its ad­mis­sions de­cisions, or that an ex­pli­cit ra­cial pref­er­ence is the only way to achieve more di­versity on cam­pus.

“If you look at an in­di­vidu­al per­son, can you tell wheth­er that per­son was ad­mit­ted­­ solely be­cause of race?” Alito asked. “Wheth­er that per­son would not have been ad­mit­ted were it not for the fact that the per­son was an Afric­an­-Amer­ic­an or His­pan­ic?”

Alito’s im­plic­a­tion was that Texas doesn’t really know wheth­er the use of race in some ad­mis­sions de­cisions is ac­tu­ally the reas­on its minor­ity en­roll­ment has im­proved, and that the school could achieve its goals in oth­er ways. It’s an ar­gu­ment that piqued Kennedy’s in­terest — he al­luded to Alito’s ques­tions at least three times dur­ing last week’s ar­gu­ments.

A seem­ingly nar­row rul­ing against Texas’ use of af­firm­at­ive ac­tion would not, on its face, close the door to all uses of ra­cial pref­er­ence — a step Kennedy has not seemed eager to take. But, in part be­cause race is such a small factor in UT’s ad­mis­sions pro­cess, a nar­row rul­ing in this case would likely make ra­cial pref­er­ences much harder for any school to jus­ti­fy, es­sen­tially rolling them back without form­ally tak­ing the op­tion off the table.

“You could have de­term­ined wheth­er the ad­di­tion of race to the [ad­mis­sions] equa­tion has done any­thing to in­crease classroom di­versity,” Alito told the uni­versity’s at­tor­ney. “And you haven’t done that.”

In fact, the bright­est spot for af­firm­at­ive-ac­tion sup­port­ers came when Kennedy agreed that the school had not answered the ques­tions Alito posed, but raised the pos­sib­il­ity of send­ing the case back to a lower court once again, for a new tri­al in which the school could present new evid­ence.

“It seems to me that Justice Alito’s ques­tion in­dic­ates that this is the kind of thing that we should know but we don’t know,” Kennedy said.

Scalia res­isted that op­tion, ques­tion­ing why the school should get an­oth­er chance to meet a stand­ard it should have met the first time. But Roberts ap­peared to leave some room for a rul­ing that would wind down af­firm­at­ive ac­tion without ex­tin­guish­ing it com­pletely. He cited a pre­vi­ous de­cision in which the court said such pro­grams might last roughly an­oth­er 25 years.

Grut­ter said that we did not ex­pect these sorts of pro­grams to be around in 25 years, and that was 12 ­­years ago,” Roberts said to the uni­versity’s at­tor­ney. “Are ­­we go­ing to hit the dead­line? Is this go­ing to be done, in your view, in 12 years?”

What We're Following See More »
Sens. Paul, Cruz, Johnson and Lee Oppose Senate Health Care Bill
16 hours ago

The four Senators released a joint statement, saying in part, "There are provisions in this draft that repreesnt an improvement to our current health care system, but it does not appear this draft as written will accomplish the most important promise we made to Americans: to repeal Obamacare and lower their health care costs."

No Comey Tapes
17 hours ago

Trump tweeted Thursday afternoon, "With all of the recently reported electronic surveillance, intercepts, unmasking and illegal leaking of information, I have no idea whether there are "tapes" or recordings of my conversations with James Comey, but I did not make, and do not have, any such recordings."

Senate Healthcare Bill In Trouble?
18 hours ago
Senate Republicans Unveil Healthcare Bill
19 hours ago
Scalise Upgraded to Fair Condition
1 days ago

MedStar Washington Hospital Center said in a statement, "Congressman Steve Scalise continues to make good progress. He is now listed in fair condition and is beginning an extended period of healing and rehabilitation."


Welcome to National Journal!

You are currently accessing National Journal from IP access. Please login to access this feature. If you have any questions, please contact your Dedicated Advisor.