What happens after the Supreme Court ends affirmative action, as is anticipated this week? Colleges and universities will have to admit students using only methods that are “race-neutral,” and will not be allowed to consciously consider any applicant’s race. But institutions that have long viewed student-body diversity as essential to their missions will not change that belief simply because of the Court’s ruling, nor could the Court purport to mandate such a shift in values. What if schools move, as many surely will, to obey by adopting race-neutral measures—for example, deëmphasizing test scores, or boosting applicants from poorly funded high schools—that are designed to produce racial diversity, trying to create some semblance of what they achieved when using affirmative action? Would those moves be lawful? This will almost certainly be the next big question about admissions, as lawsuits will likely be filed claiming that race-neutral policies devised with diversity outcomes in mind are racially discriminatory. We have some legal clues from which to piece together what may happen next.
In 2013, the Court, in Fisher v. University of Texas, discussed a race-neutral admissions method that was enacted by the Texas legislature: the top ten per cent of students in every high school in the state were automatically guaranteed admission to any of the state’s public colleges or universities. Because de-facto residential segregation resulted in de-facto school segregation in much of the state, admitting the top ten per cent of each high school meant that a large number of Black and Latino students would be admitted to colleges and universities in Texas. That would produce significant racial diversity on campuses without admissions officers considering applicants’ race.
The white plaintiff in Fisher challenged U.T.’s use of race-conscious affirmative action in selecting the remainder of the undergraduate class. The Court sent the case back to the Fifth Circuit to assess whether race-neutral alternatives would suffice for U.T. to achieve the desired diversity. Its opinion didn’t cast any doubt on the lawfulness of the Top Ten Percent policy. Indeed, Justice Clarence Thomas, in a concurrence, said approvingly that “most blacks and Hispanics attending the University were admitted without discrimination under the Top Ten Percent plan”—contrasting a race-neutral method that wasn’t “discrimination” with affirmative action, which he said was. Three years later, when the Fisher case came back to the Supreme Court, in 2016, and the majority ultimately found U.T.’s race-conscious affirmative-action program lawful, Justice Samuel Alito, in dissent, complained that the school’s diversity goals could be reached “without injecting race into the process,” by combining the Top Ten Percent plan and a race-blind holistic review of applicants.
Justice Ruth Bader Ginsburg, who dissented in the first Fisher case, expressed that the distinction between “race-conscious” and “race-neutral” was dishonest or illusory. She pointed out that even the Top Ten Percent plan was not actually race-neutral: Texas lawmakers had adopted it with the explicit goal of insuring the admission of a large number of minority students. “It is race consciousness, not blindness to race, that drives such plans,” she wrote. She disparaged the “kind of legal mind” that “could conclude that an admissions plan specifically designed to produce racial diversity is not race conscious.”
Ginsburg’s sentiments are now most likely to be echoed by conservatives, or by plaintiffs suing schools for adopting new admissions plans that are race-neutral but still designed with the goal of producing a racially diverse class. A preview of what such lawsuits will look like came in a recent case about Thomas Jefferson High School for Science and Technology (T.J.), a selective magnet school in Fairfax County, Virginia, that is often described as one of the top high schools in the U.S.
In 2020, during the national racial reckoning that followed the murder of George Floyd, the Fairfax County school board, frustrated with T.J.’s lack of diversity, considered a number of proposals to change its admissions, in order to increase the enrollment of underrepresented and disadvantaged groups. The board thus resolved to alter T.J.’s racial composition. The superintendent urged that T.J. “should reflect the diversity of [Fairfax County Public Schools], the community and Northern Virginia,” and presented graphs projecting the impact of potential new admissions standards on T.J.’s demographics, including a significant drop in Asian American enrollment. School-board members texted each other about their perceptions that “there has been an anti [A]sian feel underlying some of this, hate to say it lol”; that the superintendent “[c]ame right out of the gate blaming” Asian Americans; that his remarks were “demeaning” and “racist”; and that “Asians hate us.”
The board ultimately decided to eliminate standardized tests and mandated that each public middle school in four Virginia counties and the city of Falls Church would be entitled to send a set percentage of its students to T.J. Students at those dozens of middle schools would compete for the reserved spots based on grades, a problem-solving essay, a description of their skills, and “Experience Factors”; the latter included whether an applicant attended a historically underrepresented public middle school and was eligible for free or reduced-price meals. After those seats were filled, all other applicants could compete for the remaining spots, using the same criteria. The new admissions process was race-neutral in that an applicant’s race was not considered, and, in fact, evaluators were not provided any applicant’s name, race, ethnicity, or sex.
As a result of the new policy, in 2021, Asian Americans dropped from about seventy per cent of admitted students to around fifty-four per cent, and the percentages of white, Black, and Hispanic admitted students each rose. Much of this result was because Asian Americans were concentrated at a handful of “feeder” middle schools, which had, in the past, sent disproportionate numbers of their students to T.J. A coalition that was organized, in large part, by Asian American parents sued the school board, alleging that its race-neutral admissions policy was adopted with a discriminatory purpose, because the board “specifically intended to reduce the percentage of Asian-American students who enroll in TJ.” A federal district court in Virginia agreed, but on appeal, last month, the Fourth Circuit instead sided with the school board, saying that the plaintiff “cannot establish that the Board adopted its race-neutral policy with any discriminatory intent.”
The T.J. case is highly instructive because, after the end of affirmative action, new admissions policies that, like T.J.’s, rely on only race-neutral methods to produce racial diversity will be legion. Admissions are zero-sum, and so the increase of some groups’ admissions must result in the decrease of other groups’ admissions. One can imagine selective colleges and universities making adjustments to eliminate or lessen the importance of standardized tests, on which Asian Americans, as a group, have performed well; to prioritize applicants from less-well-funded high schools, who are disproportionately Black and Latino; to favor applicants from geographically underrepresented areas, where there may be fewer Asian Americans; and to put more weight on discretionary factors such as “personal” qualities, on which Asian Americans have not been scored highly. And in the lawsuits that may soon follow, courts—and, eventually, the Supreme Court—will have to decide whether the adoption of race-neutral means of producing diversity is any more lawful than the use of race-conscious affirmative action.
The key Supreme Court precedents for the T.J. case involved situations in which a government action was facially race-neutral but had a racially disparate impact. The earliest one, from the late nineteenth century, was about San Francisco’s implementation of a law requiring a permit to operate a laundry business. It turned out that, in practice, the city turned down every applicant who was Chinese while giving permits to nearly all non-Chinese applicants. Though the permitting law was “fair on its face, and impartial in appearance,” there was no explanation for the way it was applied except hostility to Chinese applicants. The Court held that the city had violated the equal-protection clause of the Fourteenth Amendment.
Since the late twentieth century, the Court has made it exceedingly difficult to win discrimination cases in which a race-neutral government policy had a racially disparate impact. In constitutional cases alleging that government action had a disproportionate adverse impact on Black people, the Court required plaintiffs to prove that the defendant had a discriminatory purpose. But, of course, discriminators rarely say the quiet part out loud. What’s more, the Court said that, even if there were a discriminatory motive, the plaintiff should still lose if the same thing would have happened in its absence. In Washington v. Davis (1976), the Court held that a race-neutral civil-service exam that was used to select police officers, and that resulted in four times as many Black applicants failing as white applicants, did not violate the equal-protection clause, because there was no discriminatory purpose. In Village of Arlington Heights v. Metropolitan Housing Development Corp. (1977), the Court upheld the denial of a zoning permit for low-income housing, which had a disproportionate impact on Black people, again because the plaintiff couldn’t prove that there was a discriminatory purpose. Such cases have been a bugbear for the liberal civil-rights cause.
