Nikolai Morse '24
Managing Editor
On Wednesday, November 9, the Federalist Society at the University of Virginia School of Law co-hosted a speaker event alongside the Center for the Study of Race and the Law, entitled “Affirmative Action at the Supreme Court: A Discussion on Students for Fair Admissions.” The event featured practitioner Cory Liu, a partner at the Ashcroft Law Firm, who represented Professor David Bernstein as amicus curiae in Students for Fair Admissions v. President & Fellows of Harvard College. UVA Law’s own Professor Kim Forde-Mazrui, the Director of the Center for the Study of Race and the Law, also spoke. Mr. Liu and Professor Forde-Mazrui discussed the recent oral arguments before the Supreme Court in Students for Fair Admissions, the legal and historical background of race-based affirmative action, and the implications of the Supreme Court overruling precedent upholding affirmative action.
Mr. Liu spoke first, recounting how his parents immigrated from China and the challenges he faced growing up in an immigrant family, including facing discrimination and bullying. He described how, in learning about the Civil Rights movement, he felt “like a beneficiary of the advocacy of so many people that came before” and that, despite the United States’ long history of racial discrimination, “the Constitution had the principles needed to support much-needed progress.” Mr. Liu recounted his experience applying to colleges, when he learned about holistic admissions. He described how as a high school student, he struggled to reconcile hearing that “your race can only help you but never hurt you” with schools’ goals of increasing representation of some racial groups, which in his view meant you would necessarily decrease representation of other groups. Mr. Liu noted that in his experience, many Asian Americans felt that in the admissions context, “race was working against us.”
Mr. Liu summarized some of the findings from the years of admissions data that Harvard turned over in discovery. “[T]his confirmed a lot of Asians’ worst fears.” From 1992–2013, Harvard’s admissions data suggested that under an admissions regime which counted only academics and test scores, Asians would constitute 40% of the student body. Adding athletics to the mix, Asians would be 33%. Accounting for legacy and extracurricular factors, the percentage dropped to 26%. Accounting for demographics, Asians came to represent 18% of the student body under Harvard’s admissions formula. Mr. Liu noted that the remaining admissions criterion, titled “personal rating,” resulted in Asians receiving the lowest scores as a group, followed by whites, and in African Americans receiving the highest scores, with Latinos receiving the second highest. Because these differences along racial lines were not present in the reviews of alumni interviewers, but only presented after review by the admissions committee, Mr. Liu suggested that this category was not race-neutral.
In contrast to Fisher v. University of Texas,[1] which made no mention of Asian Americans, Mr. Liu said that “one of the great things about this case is the chance it has given Asian Americans to speak about the discrimination they faced, especially in the admissions process.” He said the effects on Asian Americans had received increasing media attention, with Asian American writers in The New Yorker and Slate describing how they felt compelled to “cultivate not just a sense of individuality but also ways to project ‘Not like other Asians!’”[2] by changing their major to “philosophy, thinking this was one of those impractical fields that most sensible Asian parents would not allow their children to pursue.”[3] Mr. Liu concluded, “I hope this is an opportunity for the country and universities to have a more nuanced and sophisticated conversation about these issues.”
Professor Forde-Mazrui began by contextualizing his remarks, saying, “I am not going to defend Harvard. My main concern is the bigger claim, which is overturning Grutter[4] and banning all consideration of race.” Professor Forde-Mazrui pointed out that there are two claims in Students for Fair Admissions: first, that Harvard’s admissions program violates Title VI of the Civil Rights Act under Gratz,[5] and second, to consider whether the Court should overturn Grutter and hold that universities cannot consider race in admissions. Professor Forde-Mazrui said that while this case could be decided on the first claim’s more narrow grounds, he believed the Supreme Court had taken this case to decide it on the second. Professor Forde-Mazrui argued that overturning Grutter and banning race completely would not help Asian American applicants more than challenging the program under Grutter. Specifically, he pointed to admissions factors like legacy admissions, children of faculty, donors’ children, and athletics—all of which benefit white applicants more than others—that would not be addressed by overturning Grutter. “The remedy does not fit the problem.”
Professor Forde-Mazrui then introduced the framework for his speech, which was titled “Taking the Federalist Society Seriously: The Constitutionality of Race-based Affirmative Action.” He suggested that “whether you agree with affirmative action as good or bad policy, and whether Harvard and UNC have done it in harmful ways, Federalist Society principles compel supporting affirmative action.” Professor Forde-Mazrui began by noting that the Federalist Society has a healthy respect for judicial restraint, state sovereignty, and the democratic process. However, he noted that overturning Grutter would take the decision out of the democratic process, and state legislatures would no longer be able to determine whether or to what degree they support or disallow affirmative action.[6]
Looking next to originalist views of the text, tradition, and history of the Constitution, Professor Forde-Mazrui first pointed out that equality “is a principle of reason, to treat people the same if similarly situated and different if differently situated.” However, the Constitution, Forde-Mazrui noted, does not tell us how individuals are situated. Looking to original meaning, he said that it is clear the Fourteenth Amendment does not mandate colorblindness and was in fact adopted over a competing version which explicitly mandated colorblindness. Professor Forde-Mazrui argued that while he believes the original meaning supports race-based affirmative action, at the very least it is sufficiently ambiguous that the burden to justify taking it out of the legislative process is unmet.
Lastly, Professor Forde-Mazrui said that when you look to tradition after the Fourteenth Amendment’s adoption, as was favored by Justice Scalia, it is clear that there is no deeply-rooted historical tradition against affirmative action. Rather, nearly 80 percent of states allow affirmative action. Professor Forde-Mazrui compared this to abortion regulations, noting that “there are more states that practice affirmative action than states which say anything about abortion . . . and the Court said there was not a deeply-rooted historical tradition” supporting abortion. In closing, Professor Forde-Mazrui stated that “morality supports the theory of affirmative action, and so do the Federalist Society’s principles.”
At the end of a question-and-answer session, Professor Forde-Mazrui asked Mr. Liu how overturning Grutter would have affected a university’s ability to consider his background relating to his parents’ immigration to the United States. Forde-Mazrui said that his concern was the extent to which color-blindness would restrict consideration of important aspects of individuals’ identities which were rooted in their race. Mr. Liu responded that he didn’t think it would foreclose discussion of overcoming discrimination in an admissions essay, though he noted that this very issue prompted Justice Kagan to respond that the lawyers for Students for Fair Admissions were “slicing the salami too thin.”
---
cpg9jy@virginia.edu
[1] Fisher v. Univ. of Tex. at Austin (Fisher I), 570 U.S. 297 (2013).
[2] Jeannie Suk Gersen, The Uncomfortable Truth About Affirmative Action and Asian-Americans, New Yorker (Aug. 10, 2017),https://www.newyorker.com/news/news-desk/the-uncomfortable-truth-about-affirmative-action-and-asian-americans.
[3] Aaron Mak, The Price of Admission, Slate (Dec. 5, 2017), https://slate.com/human-interest/2017/12/the-price-of-college-admission-for-asian-americans.html.
[4] Grutter v. Bollinger, 539 U.S. 306 (2003).
[5] Gratz v. Bollinger, 539 U.S. 244 (2003). In the challenge to the University of North Carolina, the second claim is that the admissions policy violates Title VI of the Civil Rights Act under Fisher v. Univ. of Tex. at Austin (Fisher I), 570 U.S. 297 (2013).
[6] Professor Forde-Mazrui noted that California banned affirmative action in college admissions in 1996 through Proposition 209, a statewide ballot measure.