By Sam Ozer-Staton

What if the legal rationale for affirmative action has been faulty all along? 

That’s the argument being made by several legal scholars as the Supreme Court weighs overturning decades of Supreme Court precedent upholding the consideration of race in college admissions. 

Surprisingly, the argument is coming not from critics of affirmative action, but rather from some of its strongest champions. 

This week on Stay Tuned, Preet interviewed one of those strongest champions: Lee Bollinger, the president of Columbia University and a renowned First Amendment scholar. Bollinger has the unusual distinction of being the named defendant in two landmark Supreme Court affirmative action decisions, including Grutter v. Bollinger (2003), which is in jeopardy of being overturned by the Court’s ascendant conservative majority. 

Bollinger told Preet that the longstanding justification for affirmative action programs — the educational benefits of diversity — while compelling, is not the best reason for such programs to exist. Instead, Bollinger argued, the attempt at remedying what he called “the United States’ history of extraordinary invidious discrimination against African Americans” should take precedence. 

That might not seem particularly controversial, but it’s an admission that Bollinger said “every person who becomes a dean or a president or an academic leader is told by general counsel [to] never, ever say.” 

Why is that such a difficult thing to acknowledge? Because Justice Lewis Powell, whose concurring opinion in 1978’s Regents of the University of California v. Bakke upheld the consideration of race in college admissions, explicitly thought it was unconstitutional. 

If the Court granted preferential treatment for particular groups as a means of remedying past discrimination, “There [would be] no principled basis for deciding which groups would merit ‘heightened judicial solicitude’ and which would not,” Powell wrote in Bakke. “Courts would be asked to evaluate the extent of the prejudice and consequent harm suffered by various minority groups. Those whose societal injury is thought to exceed some arbitrary level of tolerability then would be entitled to preferential classifications at the expense of individuals belonging to other groups.”

Instead, Powell tied his argument for race-based affirmative action to the benefits of diversity. While four members of the Court disagreed with Powell’s reasoning, arguing that Title VI “does not bar the preferential treatment of racial minorities as a means of remedying past societal discrimination,” Powell’s tie-breaking concurrence won the day.

Bollinger told Preet that Powell got it wrong. “The argument we are making,” Bollinger said, “is that there has been a mistake in the Supreme Court cases, beginning with Powell’s opinion in Bakke…in emphasizing only the benefits of diversity for general education for all groups.” Bollinger added: “The problem of past and ongoing discrimination that really must be overcome, as a matter of justice, is a more powerful one.” 

Melissa Murray, the Stokes Professor of Law at NYU Law School and a monthly contributor to CAFE, told me that Powell’s diversity rationale, at the time of Bakke, was at odds with the historical understanding of affirmative action. 

“Affirmative action, when it was initially put in place, was remedial,” Murray said. “You can almost think about it as a kind of education-based form of reparations. There are so many institutions that historically have refused to admit individuals from certain marginalized groups, and the idea was to affirmatively prioritize the hiring or admission of certain groups that had been historically kept out.”

According to Murray, Powell’s opinion in Bakke cemented the idea of diversity in higher education as a foundational value — not just as a matter of the law, but in culture as well. 

Bakke’s a really fractured set of opinions,” Murray said, “but it’s Powell’s concurring opinion that gets latched on to, and the remedial aspect of affirmative action in higher education gets left behind in favor of this diversity rationale that is about interest convergence — it’s good for people of color, it’s good for white people.”  

Now, as the Court takes up a pair of affirmative action cases, Powell’s rationale stands on shaky ground. 

“Diversity is what we have, but I also think it’s what makes [affirmative action] vulnerable,” Murray said. “It masks what really is supposed to be the reasoning behind affirmative action that people don’t want to wrestle with: What do you do to make recompense for a whole history where you kept people out?” 

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