The Foreseeable Consequences of Ending Race-Based Admissions Policies

Author: Tanya Washington Hicks
Tanya Washington Hicks is a Professor of Law at Georgia State University College of Law. She earned her J.D. from The University of Maryland School of Law and then clerked for Associate Judge Robert M. Bell on the Maryland Court of Appeals. After practicing as a toxic tort defense litigator in the Baltimore office of Piper & Marbury, she completed two fellowships and earned her LL.M. from Harvard Law School. Professor Washington Hicks has taught Civil Procedure I and II, Family Law, Education Law and Race and Law at Georgia State for the past 19 years. Her research and scholarship focus on issues related to educational equity, domestic violence, racial justice, inclusion and diversity, marriage equality, and children’s constitutional rights. Professor Washington Hick’s articles have been published in law journals across the nation. She has worked collaboratively to ensure that legal scholarship has a practical and positive impact for vulnerable individuals and communities, and she has filed 5 co-authored amicus briefs with the U.S. Supreme Court advancing arguments for the recognition of children’s enforceable, constitutional rights. Her co-authored amicus brief filed with the Supreme Court in Obergefell v. Hodges was cited by Justice Anthony Kennedy in the Supreme Court’s majority opinion in that landmark decision.

Professor Washington Hicks considers herself to be an activist scholar, and a belief that the true value of the law lies in its capacity to improve the human condition animates her work.

Race-conscious admissions efforts lie on the jurisprudential chopping block as the United States Supreme Court readies itself to hear oral arguments in Harvard v. Students for Fair Admissions on Halloween.^[1] This case and its companion case, University of North Carolina v. Students for Fair Admissions, present a full-frontal challenge to the constitutionality of using race in admissions at institutions of higher-education.^[2] Many court watchers and scholars predict a majority of the Supreme Court is poised (and perhaps appetent) to overturn Grutter v. Bollinger—a case that embraced educational diversity, of which racial diversity is but one constituent aspect, as a compelling constitutional goal.^[3] I agree with the presage, but not because of the ideological shift on the highest court in the land^[4] or because of “racial-exhaustion” and a desire amongst a majority of the Court to quicken colorblindness.^[5] Though these realities will inform the inevitable ending of race in admissions, I believe the determinative factor is that the concept of racial diversity was never properly defined in terms of its educational relevance.

Careless analysis casts racial diversity as a stand-in justification for “real affirmative action,” rather than as a way to serve legitimate educational prerogatives.^[6] The path leading to this precipice for higher education, college-aspiring students of color, and our society as a whole is littered with cases presenting judicial inventions that frustrate the full realization of racial diversity’s educational promise and academic and intellectual yield.^[7] The use of race in admissions has been critically wounded by a thousand jurisprudential cuts,^[8] and though the policy is not dead yet, its passing is imminent.^[9]

The constitutional value of educational diversity, which the Court affirmed in Grutter v. Bollinger, is at the heart of the Harvard case.^[10] The rationale for considering race in admissions debuted in Justice Powell’s plurality opinion in Regents of the University of California v. Bakke.^[11] But the constitutional status of educational diversity languished in jurisprudential purgatory for 25 years because it was not acknowledged as a compelling constitutional goal by a majority of the Court.^[12] Justice Powell cast the deciding vote in Bakke to invalidate a race-conscious admissions quota that set aside sixteen seats for Black medical school applicants.^[13] With his vote, Justice Powell advanced educational diversity as the only justification for the use of race that could withstand strict constitutional scrutiny, absent particularized de jure racial discrimination.^[14] In his opinion, he was careful to characterize racial heterogeneity as an aspect of educational diversity that serves educational prerogatives as defined by colleges and universities—the purveyors of the quintessential marketplace of ideas.^[15] Justice Powell explained:

Ethnic diversity . . . is only one element in a range of factors a university properly may consider in attaining the goal of a heterogeneous student body . . . . The diversity that furthers a compelling state interest encompasses a far broader array of qualifications and characteristics of which racial or ethnic origin is but a single though important element.^[16]

For Justice Powell, the compelling constitutional goal was the educational benefits derived from racial diversity, not racial heterogeneity in and of itself.^[17]

Even as the Grutter decision confirmed the precedential force of Justice Powell’s lonely recognition of educational diversity as a compelling interest, the opinion distorted the relationship between racial diversity (i.e., the means) and educational benefits derived from racial diversity (i.e., the constitutional end).^[18] This analytical misstep resulted from the Court’s reluctance to highlight the educational relevance of racial diversity and to distinguish it from remedial uses of race, despite evidence presented by the University of Michigan School of Law documenting the relationship between racially heterogeneous learning spaces and higher-order thinking and educational imperatives.^[19] As I observed in my very first law review article:

While, concededly, racial diversity shares with remedial affirmative action a consequential increase in racial heterogeneity in classrooms across the nation, the focus of the diversity rationale is neither retributive nor restorative. As distinguished from affirmative action programs and policies, diversity’s underlying rationale is pedagogical and its orientation is prospective; it seeks to achieve an educationally relevant end. The racial diversity rationale is education policy that contemplates as its chief aspiration the provision of a learning environment enriched by the admission of a student body with multifarious experiences. Within the scope of its importance as a legitimate educational aspiration, diversity distinguishes itself from affirmative action and finds its independent constitutional footing.^[20]

Educational diversity embraces race as an asset, not as a liability. Rather than acknowledging the educational relevance of racial diversity, the Court shoehorned racial diversity into a remedial affirmative action framework.^[21] In Grutter, Justice O’Connor gave a curt nod to racial diversity’s educational relevance, even as she cloaked educational diversity in remedial affirmative action garb.^[22] Let me be clear: I support the use of race in higher education admissions processes to mitigate and remedy historical and continuing racial discrimination, including de facto discrimination. And I believe the Bakke Court was wrong in rejecting the amelioration of societal discrimination (“de facto discrimination”) as a compelling interest.^[23] However, remedial affirmative action and racial diversity, as a constituent element of educational diversity, serve different constitutional goals. By conflating them, the Grutter opinion failed to give educational diversity the full-throated defense it deserves.^[24] Though a slim majority of the Grutter Court supported educational diversity as a constitutionally compelling goal, the majority’s reasoning deprived racial diversity of its constitutional value in service of educational ends.^[25] Thus, the Court made the right decision for the wrong reasons, thereby sowing the seeds of its own overruling.

Following the Grutter decision, educational diversity has barely survived as a pretextual justification for using race in admissions.^[26] In every challenge to the use of race in college and university admissions, the rationale has come perilously close to being ruled unconstitutional.^[27] Whether educational diversity is a constitutionally compelling interest is squarely before the Court in the Harvard case, and the future use of race in admissions hangs in the balance. The Court could uphold Grutter’s precedential embrace of the educational benefits of racial diversity as a constitutionally compelling interest and determine Harvard’s use of race to be sufficiently narrowly tailored to achieve that goal. The Court could uphold Grutter’s imprimatur of educational diversity but find that Harvard’s specific use of race fails to meet strict scrutiny’s narrowly tailored requirement because, as Students for Fair Admissions alleges, it discriminates against Asian-American applicants.^[28] The Court could reverse Grutter and categorically ban the use of race in admissions decisions by colleges and universities, thereby invalidating Harvard’s race-conscious admissions policy a priori. Finally, the Court could reverse Grutter and, as it did in Dobbs v. Jackson Women’s Health Organization,^[29] punt the constitutional question to state legislatures to either regulate the use of race in admissions decisions in their state colleges and universities or outlaw it altogether.^[30]

As an educator who has curated law school learning spaces and facilitated classroom discussions for two decades, I am convinced that higher-order thinking and rigorous, intellectually rich discourse are informed and enhanced by racial heterogeneity.^[31] I am also convinced that racial homogeneity in the classroom, which is a likely consequence of “race-neutral” admissions policies, will substantially and substantively diminish the educational experience for White students, who will be confined to all white learning spaces. I am equally convinced that a Supreme Court opinion requiring institutions of higher education to unsee race will usher in a return to overt racially discriminatory admissions practices and will ensure a dearth of future doctors, lawyers, judges, teachers, engineers, scientists and other degreed professionals of color, which will adversely impact society and our democracy.^[32] These dire (desired?) consequences are predictable, which calls the question: Given how educational imperatives will be impaired by prohibiting consideration of race in admissions, is a return to racial homogeneity in America’s college and university classrooms and in the ranks of our professional class the foreseeable end that justifies the inevitable means?

I’m just sayin’!