Will the justices end race-based affirmative action? 

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The Supreme Court’s decision to grant review of the race-based affirmative action programs of Harvard and the University of North Carolina raises the possibility that race alone will not be permitted as a criterion for college admissions.

It requires only four votes for certiorari to be granted, so there is a possibility that a majority may still favor the status quo. But it is more likely that at least five justices are seeking to reconsider the role of race in admissions, as well as other decisions.

Because Harvard is a private university and UNC is public, the court may have selected these two cases together for review to distinguish between the private and the public. But this is too unlikely, especially in light of the high court’s 5-4 decision upholding a vaccine mandate for private hospitals that receive federal funding. The line between public and private has become blurred as a matter of law.

There are three clear votes on the court for upholding race as a possible criterion (Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan) and three votes against it (Justices Clarence Thomas, Samuel Alito and Neil Gorsuch). Chief Justice John Roberts may side with the liberals even if he disagrees that race is a possible factor, because he places considerable emphasis on precedent. Justices Brett Kavanaugh and Amy Coney Barrett both had university teaching backgrounds and have lived with race-based admissions policies all of their professional lives; it is difficult to predict which way this experience will cut.

It is also difficult to predict whether any of the three uncertain justices might agree with retired Justice Sandra Day O’Connor’s argument, now withdrawn, that race-based affirmative action should have a statute of limitations — say 25 years, which has long expired since she first suggested it.

Finally, there has never been a time in recent history when race has ostensibly mattered more — in education, in health care, in policing, in voting rights, in entertainment, in business and in other aspects of American life. For the justices to rule that race shouldn’t matter at all in college admissions policies would be to confront a powerful current reality.

As an abstract constitutional matter, the issue seems clear: The son of a Black hedge-fund billionaire who went to Exeter should not be given an admission advantage over a poor white woman with no political connections.

But the issue is rarely presented to college admissions committees or to courts in so abstract a manner. Race often, though not always, serves as a surrogate for factors that are considered in admissions decisions, including poverty, opportunity and overcoming handicaps. Admissions committees can continue to consider all of these and other issues even if race alone is rejected, though their job might be harder without the far simpler shortcut of using race.

“Universities as intelligent as Harvard will find ways of dealing with the decision without radically altering their composition,” as Professor Lawrence Tribe, formerly of Harvard, has suggested. “But they will have to be more subtle than they have been thus far.” Imagine if a law professor had suggested that southern schools find “subtle” ways of “dealing with” court-ordered desegregation!

But there is another issue that the courts have not adequately confronted: the presence of a significant number of minorities on entering a college class. If there is an educational advantage to having a number of people of a particular race in the entering class, can that number be turned into a floor? And if there is a floor for some, does that necessarily mean there is a ceiling for others? In other words, are quotas inherent in any system of race-based affirmative action?

Nonetheless, even if the Supreme Court were to rule unequivocally that race alone can never be considered in admissions decisions by public universities or private ones that accept government funding, university admissions committees will figure out ways to factor in race without doing so overtly.

There undoubtedly will be more lawsuits challenging individual admissions decisions; the Supreme Court will not settle all the divisive issues surrounding race. It may, however, articulate an important principle that race alone can neither confer governmentally approved advantages or disadvantages.

Alan Dershowitz, professor emeritus for Harvard Law School, is the author of numerous books, including “The Case Against the New Censorship,” and “The Case for Color-Blind Equality in an Age of Identity Politics.” Follow him on Twitter @AlanDersh.

Tags Affirmative action Alan Dershowitz Amy Coney Barrett Brett Kavanaugh Clarence Thomas Elena Kagan Neil Gorsuch Samuel Alito Sonia Sotomayor Stephen Breyer Supreme Court of the United States University and college admissions

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