The Hard Question of Affirmative Action and Slavery

During oral arguments for the biggest Supreme Court cases, the justices’ questions are often pointed, meant to advance their own view of the case. Conservative justices ask friendly questions of lawyers on the conservative side and burrow into the logical weaknesses of the liberal side. Liberal justices do the opposite.

The five hours of oral arguments on two affirmative action cases in October mostly fit this pattern. But, about three hours into the session, Justice Brett Kavanaugh asked a less typical question. It involved slavery, and it raised an inconvenient issue for Kavanaugh’s fellow conservatives.

“So today, a benefit to descendants of slaves would not be race-based, correct?” Kavanaugh said to Cameron Norris, a lawyer arguing for the end of race-based affirmative action.

Norris seemed caught off guard. “I — I think that’s incorrect, Justice Kavanaugh,” he said.

Kavanaugh then noted that Norris had already acknowledged that the post-Civil War benefits that formerly enslaved people received from the federal government were not race-based. Those benefits were based on their status as having been enslaved, not their skin color.

“If that’s correct, then the benefit for descendants of former slaves is also not race-based,” Kavanaugh said. “You can make other arguments if you want about that, but it does not seem to be race-based.”

The conversation quickly moved on (partly because Justice Neil Gorsuch, another conservative, moved it along). But the exchange highlighted a tension that’s likely to be central to the debate over affirmative action after the Supreme Court rules. Put simply, getting rid of race-based admissions policies may turn out to be harder than it sounds.

Today’s newsletter is the first in what will be an occasional series on the future of affirmative action. I welcome reader questions and suggestions via email at [email protected].

Grit and character

The court is expected to rule on affirmative action in June, and observers expect tight restrictions on race-based considerations in college admissions. The six Republican-appointed justices, including Kavanaugh, all seem opposed to the status quo, in which many colleges have different admissions criteria for different racial groups. Black, Latino and Native American applicants are now admitted with lower test scores and grades than Asian and white applicants.

But even most opponents of the current system agree that colleges should take into account some parts of an applicant’s background. Consider two teenagers: One grew up with working-class parents, attended a high-poverty high school and scored 1390 on the SAT. The other went to an elite private high school, took SAT prep classes and scored 1400. Surely, the 1390 is more impressive.

When a person has overcome hardship, as Patrick Strawbridge, another lawyer opposing racial preferences, said to the justices, “it tells you something about the character and experience of the applicant other than their skin color.”

Opponents of today’s affirmative action have tried to draw a clean distinction between racial and nonracial considerations, and the opponents are correct that colleges now use race itself as a major factor. But if the court bars that practice, colleges are likely to become more aggressive about using measures of socioeconomic disadvantage. And that’s where the situation could get tricky. Many socioeconomic measures, after all, are strongly correlated with race.

Legacy at U.N.C.

Kavanaugh’s question about slavery was jarring because the overlap was complete: An admissions policy based on a family’s history of enslavement certainly sounds like a race-based policy, without being one on paper.

Justice Ketanji Brown Jackson pointed out another example during oral arguments: For a long time universities, including public schools like the University of North Carolina, refused to enroll Black students. Jackson compared a hypothetical applicant who would be a fifth-generation U.N.C. student — and thus receive the so-called legacy boost — with an applicant whose family had lived in the state just as long but whose ancestors had been barred from attending. As Jackson asked, shouldn’t the second applicant receive a boost, too?

Both Jackson’s and Kavanaugh’s hypotheticals might seem narrow, involving discrimination that occurred long ago. But the practical questions are broader. Because of the deep racial inequities in the U.S. — caused partly by government policies like whites-only housing subsidies — many admission criteria based on economic disadvantage would apply disproportionately to applicants of color, especially Black applicants.

One example would be an admissions policy that gave extra consideration to a student who grew up in a family with a net worth of less than $30,000. Most Black households fall into that category; only a small share of white households do. There are even greater racial disparities in measures based on neighborhood wealth.

I’m not suggesting that criteria like these are merely dressed-up versions of today’s system. To many people, they’re more justifiable because they can apply to disadvantaged members of all races. (Here’s a Times profile of Richard Kahlenberg, a researcher who makes that case, arguing for a new class-based system.)

Still, the legal fights will not end with a Supreme Court decision. Adam Liptak, who covers the court for The Times, says that he expects a flurry of lawsuits over what constitutes a race-based admissions policy in disguise versus a class-based policy that happens to affect different races differently.

As with abortion, a Supreme Court ruling will reshape the political debate without ending it.

Is your podcast queue empty? I enjoyed listening to the oral arguments on affirmative action, starting here and continuing here.



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