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University files brief defending affirmative action in Supreme Court cases

Last week, the Supreme Court heard two concurrent cases on the state of affirmative action in college admissions, Students for Fair Admissions v. University of North Carolina and Students for Fair Admissions v. President and Fellows of Harvard College. The petitioner in both cases — Students for Fair Admissions, a nonprofit that has taken issue with the race-conscious admission policies at UNC and Harvard — has argued that those policies constitute racial discrimination, especially against Asian-Americans.

The University of Notre Dame has taken a side in the case, signing onto an amicus brief alongside 56 other Catholic colleges and universities, supporting the institutions that have employed affirmative action in their admissions. The brief at one point quotes Notre Dame’s mission statement, which says that “the intellectual interchange essential to a university requires, and is enriched by, the presence and voices of diverse scholars and students.”

Asked for comment on why Notre Dame chose to weigh in on the case, University spokesman Dennis Brown said the school’s “position as stated in the brief speaks for itself.”

Jennifer Mason McAward ‘94, a Notre Dame law professor who serves as director of the Klau Institute for Civil and Human Rights, said there is some incentive for institutions like Notre Dame to defend race-conscious admissions. 

“I would think that, at a Catholic university that really does come from a faith tradition that values diversity and inclusivity, it is a core part of who we are to recognize that there are many parts of the body of Christ, and we want to have all of them represented at our school,” she said.

Richard Garnett, a law professor with concurrent appointment to the political science department, said that it’s unlikely that Notre Dame’s stated concerns on racial diversity and the religious freedom to consider race will be primary considerations for the court.

“Because Notre Dame is a private institution, its ability to consider race is not limited by the Constitution, only by its acceptance of federal funds. It is unlikely, in any event, that the justices will rely explicitly on considerations of institutional religious freedom or of Catholic mission,” he wrote in an email to The Observer.

Mason McAward explained that the legal history of these affirmative action cases goes back to 1978, when the Supreme Court decided a case called Regents of the University of California v. Bakke, when a white man seeking admission to medical school was rejected twice despite qualifications exceeding those of 16 minority students admitted in reserved seats. 

“The controlling opinion in that case ended up being Justice Lewis Powell’s solo opinion, which concluded that, although racial classifications are ‘inherently suspect,’ such consideration could be justified ‘under some circumstances,’ when necessary to the ‘goal of achieving a diverse student body,’” Garnett wrote. “The Court has never embraced the position that four justices took in Bakke, namely, that affirmative action in admissions is justified as a reparative or remedial measure.”

According to Mason McAward, Bakke was the law of the land through 2003, when the Supreme Court heard Grutter v. Bollinger.

Grutter “reaffirmed that diversity was an acceptable goal for universities to have and that race-conscious admissions were permissible,” Mason McAward said. “Race could be only one factor among many that schools could consider and so they had to be very careful in how they use race as one factor in a broader picture understanding of what diversity really means.”

Harvard has been specifically accused of discriminating against Asians in a variety of ways. The Trump administration had taken up the case of those students, siding with the petitioner’s argument. Under the Biden administration, the solicitor general’s office has reversed course, arguing in favor of the universities and affirmative action processes. Mason McAward says the broader questions around affirmative action expand these critiques.

“Those questions that are swirling about whether promoting racial diversity in some sense leads to racial discrimination in another sense is a concern that is underlying some of the justices approaches to the case. And there’s their assessment that really, maybe we should just take race out of the conversation altogether, because there’s just no good way to make sure that everybody has equal opportunity, that it’s a kind of zero-sum game,” she said, drawing from oral arguments.

Garnett identified two questions facing the court.

“The questions for the justices are, first, whether ‘diversity’ in these institutions is such an interest and, second, whether race-conscious admissions practices are necessary to accomplish it,” he wrote.

Ultimately, the justices are tasked with setting out a legal view of race and admissions, and whether to overrule Grutter. Mason McAward outlined a number of possibilities.

“One big question that the justices have to decide is whether the US Constitution ever allows the consideration of race in any context, but especially in the university admissions context. So the court might say that race just can never be considered at all. Or the court could say ‘we think that diversity is an excellent goal, but schools can’t use race as one of that one piece of that constellation.’ The court might say, we actually don’t think diversity is a concept that is concrete or constrained enough that would justify the use of race,” she said.

Garnett said that the court is dealing less with whether these practices are discriminatory, but rather if they’re justifiable in light of the government’s interest.

“In addition, in part because a majority of the current justices embrace the textualist and originalist methodologies, it seems clear that they will be asking whether the text of the federal civil-rights law, and the original understanding of the Fourteenth Amendment, permit race-based government policies,” he wrote. “Both of these questions are, of course, challenging and much-debated.”

Garnett said that the impact of the ruling relies on how much the court chooses to address.

It “ will depend on, among other things, whether the justices address the constitutional question, the statutory question, or both. This is because only state-run institutions are constrained by the Fourteenth Amendment,” he wrote. “A Court ruling against race-based admissions would not prevent universities from aiming at diversity, in various forms, including but not limited to racial diversity.  Instead, it would require them to develop new strategies for achieving this goal.”

In the case that the consideration of race is totally prohibited in the admissions process, Mason McAward anticipates the path forward that institutions might take.

“Some state university systems have been precluded from using race for some time. I think the experience in California was that the number of racial minorities in the flagship California schools dropped precipitously when race conscious admissions were initially taken away. But what I think you’re going to see over time is that schools try and come up with other ways of creating a diverse student body,” she said.

Mason McAward said there are other ways to ensuring diversity with explicit racial considerations.

“So whether it’s a focus on socioeconomic diversity, whether it’s, as we see in Texas, a top 10% program where the top 10% of high school graduating classes are guaranteed admission to certain schools, I think that what you will see is a continuing commitment to diversity and an experimentation in other ways to get there,” she added.

You can contact Isa Sheikh at isheikh@nd.edu.

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