Halloween SCOTUS Affirmative Action Battle: Asians Need Not Apply

The U.S. Supreme Court will hear oral arguments in two higher education affirmative action admission challenges tomorrow, Oct. 31. The organization Students for Fair Admissions initiated both cases, which the high Court agreed to hear. The non-profit group sued Harvard University and the University of North Carolina to overturn race-based discrimination in favor of black and brown candidates and against Asians and white applicants.

Such as it is, most institutions of higher learning regulate admissions to achieve a diverse student body. In January of this year, Students for Fair Admissions' founder Ed Blum told Liberty Nation, "Every college applicant should be judged as a unique individual, not as some representative of a racial or ethnic group."

This case is considered crucial to the future of affirmative action policies and could extend, eliminate, or define the policy of affirmative action for decades to come. We've asked Liberty Nation Legal Affairs Editor Scott Cosenza, Esq., for some insight into the questions and issues at stake in this case.

Leesa K. Donner: So, the Court has scheduled a re-examination of the landmark affirmative action case Grutter v. Bollinger from 2003. It was a 5-4 decision that gave the green light to the University of Michigan to keep its affirmative action admission process intact. At the time, Justice Sandra Day O'Connor asserted, "We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today." Well, here we are, almost a quarter of a century later, and affirmative action is going strong. Do you suspect this is one of those policies that will continue with no end in sight?

Scott Cosenza: I expect that the Supreme Court will overturn current precedent. As with abortion and guns, the current composition of the Court, including Donald Trump's three appointees, favor rulings grounded in the law as written. In 2003 the Court was more heavily populated with "problem solver" justices who might prefer to see past plain violations of the law and constitution to preserve what they value as good policy.

LKD: The only Supreme Court justice who heard Grutter in 2003 and who still sits on the Court is Justice Clarence Thomas. In his dissent, he wrote, "The Constitution abhors classifications based on race, not only because those classifications can harm favored races or are based on illegitimate motives, but also because every time the government places citizens on racial registers and makes race relevant to the provision of burdens or benefits, it demeans us all." Since this is widely considered to be a conservative court, do you think there's a chance we might see a decision ending affirmative action?

SC: I predict affirmative action will end when this case is adjudicated. That is a prediction with some speculation but also based on evidence supplied by the justices themselves. Justice Thomas' entire dissent is a remarkable rebuke of affirmative action I wished every American would read. He said:

"No one would argue that a university could set up a lower general admissions standard and then impose heightened requirements only on black applicants. Similarly, a university may not maintain a high admissions standard and grant exemptions to favored races."

He quotes Frederick Douglass and demands that university administrators and all government officials leave blacks alone to fail or rise on their merits. It's fair to say that only an extraordinary change of mind could justify Thomas voting to sustain affirmative action, given his past writings. One might suspect he would lead the charge against it in this case and be the author of an influential opinion based on his previous work, seniority on the Court, and of course, his status as a black man in America.

Justice Sotomayor, on the other hand, has given us strong reason to believe she will vote to keep racial discrimination as affirmative action legal. In 2014 she wrote: "The way to stop discrimination on the basis of race is to speak openly and candidly on the subject of race, and to apply the Constitution with eyes open to the unfortunate effects of centuries of racial discrimination."

What about the rest? Not every justice is on record with statements implicating their judgment on this issue. However, we seem to have a five to three to-one court on wedge issues lately, as Chief Justice Roberts often charts his own path. Here though, we may see some departure from that trend and Roberts joining the conservatives. What motivates that prediction is his writing in a 2007 case called Parents Involved, where he said, "The way to stop discrimination on the basis of race is to stop discriminating on the basis of race."

LKD: Scott, some states already ban affirmative action, but institutions of higher learning have found myriad ways to get around these laws, essentially gutting the purpose of the measures. What are a few of the slick methods they have instituted to keep racial quotas in place?

SC: If schools can't engage in outright and stated race-based preferences, they have tried several other admission plans beyond merit. Some plans grant admission slots to the top-ranking high school students of each school. Others give a deliberately weighted preference to residents of zip codes with higher poverty rates and, by extension, higher percentages of minority applicants.

LKD: So, if admissions personnel have managed to employ back-door methods to get around state laws, what's to say they won't do the same thing even if the Supreme Court decides in favor of Students for Fair Admissions?

SC: An opinion overturning precedent and forbidding all race-based discrimination could be crafted with a mind toward preventing such mischief. I don't suggest it would be foolproof, but it would go a long way if the Court, for instance, said no program designed to engineer a certain racial makeup is legal. Under this kind of rule, some programs that incidentally benefit some races over others, such as preferring candidates from zip codes where the poverty rate is higher than others, would be allowed. However, they couldn't be designed with a preferred racial outcome in mind.