In 1978’s Bakke decision, a fractured majority of the Supreme Court found that universities could consider race to build a diverse student body, agreeing that educational benefits could flow from diversity. At the same time, the opinion prohibited quotas, requiring universities to undertake a “holistic” review of each applicant in which race could be a factor. The Supreme Court affirmed this foggy principle in 2003’s Grutter v. Bollinger and again in 2016’s Fisher v. Texas. Schools, meanwhile, became adept at making sure that holistic approach resulted in the desired racial proportions.
Now the Supreme Court appears ready to rule that the race-conscious admissions programs at Harvard and the University of North Carolina are unlawful. Five hours of arguments and questioning in the two cases’ oral presentations before the justices made that abundantly clear, but it was already clear long before. The cases’ decisions won’t be handed down until June 2023 (unless that majority opinion gets leaked too), but the Left is already laying the groundwork for a Dobbs-like freak-out.
The clear media talking point memo apparently requires all stories to call such a decision ” a move that would overrule decades of precedents.” But this is deliberately disingenuous. From the beginning, the Supreme Court allowed colleges and diversities to use race in their admission procedures while acknowledging that it was a special exception to the equal protection requirement of the 14th Amendment that was necessitated by the unusual circumstances of slavery and Jim Crow. (It was, in fact, a perfect example of the Ethics Incompleteness Principle, where a valid rule did not work well in a unique situation, and thus s special, unique solution had to be crafted that does NOT serve as a precedent.) Justice Sandra Day O’Connor admitted as much in her opinion in Grutter v. Bollinger (2003), concluding that affirmative action in college admissions is justifiable, but not forever: “We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest [in student body diversity] approved today.”
It was a bad and confusing opinion: if the law and the Constitution is the same, why would it be acceptable to violate it then but not 25 years later? It is now 19 years later; 25 years was not a scientific estimate, but just wait: one of the arguments that will be aimed at the SCOTUS opinion in June will be that it’s “too soon.”