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
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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?”

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