I needed to be in the room. I wanted to witness the next chapter in a story that mattered to me, one that I had even been a part of. And as a historian, I wanted to be there as it happened—I had to see and hear firsthand what I once thought was unimaginable.
Affirmative action has been implemented in its various forms for well over half a century, for 75 percent of my existence, for nearly 40 percent of the years since the Emancipation Proclamation. The policy has changed the human landscape of our country, and especially that of higher education, where I have spent most of my life. But now it was being challenged before a Supreme Court that every pundit predicted would overturn it. In spite of two lower-court decisions affirming that Harvard’s admissions policies in support of student diversity were not discriminatory and were consistent with the established principles of Grutter v. Bollinger (2003) and University of California v. Bakke (1978), an organization called Students for Fair Admissions (SFFA) was petitioning to have these precedents overturned and affirmative action prohibited. The case, or really two cases—SFFA v. President and Fellows of Harvard College and SFFA v. University of North Carolina at Chapel Hill—were assuming their place in the constellation of Supreme Court decisions that have shaped our nation’s long and troubled history of slavery and persisting racial injustice, decisions that have sometimes advanced but more often impeded or even reversed our progress. When the case against Harvard was originally filed, in 2014, I was the president in its title. I testified in the initial district-court trial. Now I was anxious to be there for the Supreme Court oral arguments that represented its culmination.
I wonder if lawyers who appear regularly before the Court, or the staff and security personnel who work there every day, or the justices themselves, who usually serve for decades, ever lose the sense of awe the building was designed to instill. To enter, you need to climb two sets of marble stairs, elevating you well above the ordinariness of the street below. Inside, a Great Hall lined with 36 marble columns leads to the courtroom. Heavy red-velvet drapes shield the entry. I thought of a theater as the curtains opened to reveal the bench, high above us, directly ahead.
The Supreme Court building has existed only since 1935, but its sculptures and friezes and portraits, its classical columns and pediments, are intended to make it appear timeless. The literal weightiness of its marble and stone reinforces the visitor’s appreciation of consequence: of what has happened, and will happen, in this chamber. The courtroom holds more than 400 observers with a surprising intimacy. We sat on what seemed to me the equivalent of pews, our silence enforced by Court officials even before the justices entered. The building and its rituals demand deference.
But awe was not the only emotion the building stirred. Walking through the Great Hall to the courtroom, I had passed a bust of Chief Justice Roger Taney, whose 1857 Dred Scott opinion declared that Black people could not be citizens and had “no rights which the white man was bound to respect.” It is impossible to forget how imperfect, particularly in relation to race, our judicial system has often proved.
We rose to our feet as the nine justices entered and took their seats on the dais. Four women, five men, two Black Americans, one Hispanic American—the Court itself is the product of commitments to diversity made by presidents from George H. W. Bush to Joe Biden. At the invitation of the chief justice, the petitioner for Students for Fair Admissions, Patrick Strawbridge, began his argument. The business of the day was immediately clear. “Racial classifications are wrong,” Strawbridge began. Grutter, the 2003 case, is “grievously wrong … This court should overrule” it. Affirmative action was in the crosshairs.
In 1965, President Lyndon B. Johnson issued Executive Order 11246, declaring that any entity receiving significant federal funding had to take “affirmative action” to ensure equal opportunity for racial minorities in all aspects of employment. Two years later, gender was added to the scope of the measure. Detailed regulations for compliance were not issued until 1969, when the Nixon administration undertook the first implementation of affirmative-action policy.
It is often noted that affirmative action has achieved greater success in changing women’s lives and prospects than those of people of color. I am one of those women. I entered graduate school at the University of Pennsylvania in the fall of 1970. At that time, the arts-and-sciences faculty numbered more than 400 but included only two tenured women. I never had a female professor during my doctoral training. But the same fall I entered, the U.S. Department of Health, Education and Welfare (the forerunner of today’s Department of Health and Human Services) told Penn to submit an affirmative-action plan showing how the university would achieve a faculty that reflected the numbers of women and people of color in the broad pool of qualified scholars. Under pressure from Washington and from women already at the university, Penn developed a program that included preferential hiring of women and people of color whose qualifications were approximately equal to those of white male applicants. Progress would require direct intervention. As one female faculty member explained, a policy of “benign neutrality” would “perpetuate the status quo indefinitely.”
During my graduate-school years, federal policy emboldened women at Penn. A woman denied tenure in the English Department sued and won in a case that exposed the sordid machinations of the old-boy network. A sit-in prompted by the brutal gang rape of two nursing students led not only to improved security on campus but also to the establishment of a women’s center and a women’s-studies program. At the national level, Title IX in 1972 (which resulted in a revolution in women’s athletics) and Roe v. Wade in 1973 (which legalized abortion) represented further advances. I emerged from my graduate program into a different university and a different world.
Affirmative action opened a door I would walk through. My department had no women and was authorized by the dean to add a position as part of Penn’s compliance efforts. My professors, soon to be my colleagues, could imagine me among them because the very notion of women faculty had been given a legitimacy and a thinkability. I spent 25 years on the faculty at Penn.
I am a product of gender-based affirmative action. It has changed the landscape of opportunity for women in higher education and beyond, although glass ceilings, glass cliffs, and other barriers remain. During her remarks to the Court in the North Carolina case, the U.S. solicitor general, Elizabeth Prelogar, offered a pointed reminder of continuing disparities. The Court, she noted, would hear from 27 lawyers serving as advocates in the course of the current sitting of the oral-argument calendar. Only two of them would be women.
She did not say whether any would be Black, and I saw no Black advocates during the day I spent at the Court listening to arguments in two cases about race. In nearly every dimension of American life, disparities are greater in the realm of race than of gender. But affirmative action has increased the representation of people of color in business, government, the military, and the professions, in no small part because of the changes it has introduced into the pipeline of talent generated by higher education. Harvard’s entering class this fall is majority-minority. The place does not look like the Harvard of 1970. We have almost come to take this mix of students for granted, but the Supreme Court case has warned us that we dare not. The diversity we regard as fundamental depends on extensive outreach and recruiting as well as substantial financial aid—and on the consideration of race as one factor among many in admissions decisions. Two amicus briefs submitted to the Court, from Michigan and California, described precipitous drops in the enrollment of members of underrepresented groups after those states made affirmative action illegal. Black enrollment at the University of Michigan fell by 44 percent. Enrollment of underrepresented groups at UCLA and Berkeley fell by 50 percent. Black enrollment at Berkeley is down to about 3 percent.
As the result of a series of rulings, including Grutter and Bakke, affirmative action has moved away from outright preferences or programs premised on remedying past injustices. Those approaches are now prohibited. Affirmative action currently rests on the principle of diversity: the proposition that a heterogeneous student body representing different belief systems, geographic origins, family backgrounds, and racial identities creates a learning environment that enhances everyone’s educational experience and produces citizens ready to contribute to a pluralistic society. Ironically and paradoxically, ever since the Bakke ruling, affirmative action cannot legally be justified in terms of its aid to the individual to whom it offers an opportunity. Rather, it can meet the test of strict scrutiny to which it is constitutionally subjected only if it is seen as benefiting the privileged as well as the disadvantaged, the white as well as the Black or brown. In other words, diversity is accepted as a permissible rationale because it helps white people as well as groups defined as underrepresented or disadvantaged.
It is unquestionably true that we are better because of what we learn from our differences—that diversity helps us all. But the rejection of any remedial rationale for the policy is chillingly reminiscent of post–Civil War arguments and assumptions about how we might as a nation overcome the impact of centuries of slavery and racial oppression. Nineteenth-century political leaders insisted that the freedpeople should not be provided with land or resources even after 250 years of unrequited toil because it would present an unjust benefit, a giveaway. Affirmative action’s opponents are still worried about that free lunch.
Affirmative action has withstood legal challenges for five decades. But this is a different Supreme Court, with the strongest conservative majority in decades, including several committed affirmative-action skeptics. “I’ve heard the word diversity quite a few times,” Justice Clarence Thomas remarked an hour and a half into the oral arguments, “and I don’t have a clue what it means.” Justice Samuel Alito challenged North Carolina’s solicitor general: “Your brief repeatedly refers to certain students as members of underrepresented minorities, right? What does that mean? Why is that significant?” Justice Neil Gorsuch, hearing his first affirmative-action case as a member of the Court, charged that “diversity” was just a cloak for quotas, prohibited since Bakke.
Several paragraphs in Justice Sandra Day O’Connor’s majority opinion in Grutter attracted repeated attention from the justices during the North Carolina and Harvard arguments. O’Connor accepted the use of race as one factor in admissions decisions, but she also maintained that “race-conscious admissions policies must be limited in time.” Specifically, she wrote, “the Court expects that 25 years from now the use of racial preferences will no longer be necessary to further the interest approved today.” Was that sentence, as several justices seemed to presume, meant to offer a clear and firm cutoff date? Or was it an aspiration? Was it a provision that justices such as Thomas—who dissented in Grutter—needed to wait out while they were in the minority, but could now discard? O’Connor clearly made assumptions that have proved unfounded about the pace and trajectory of change in America. Since 2003, income inequality between Black and white Americans has widened. The deaths of George Floyd and others have drawn attention to how racial injustice permeates the policing and judicial systems. Black men’s life expectancy has not increased, and the gap with whites has actually grown. The condition of American society is not making diverse student populations—“the interest approved today”—any easier to achieve.
How does the Court understand the place of race in the United States of 2022? Does race matter? Should it? Justice Elena Kagan pressed Strawbridge, SFFA’s lawyer, on this point. Given SFFA’s assumption that, as he stated in his opening words before the Court, “racial classifications are wrong,” did the group care, Kagan asked, if Black representation in universities “fell through the floor”? Strawbridge seemed taken aback as Kagan exposed the ultimate logic of his position. If race truly doesn’t matter—if we are genuinely color-blind—why should we be concerned if there are no Black students at Harvard or North Carolina at all? SSFA has consistently maintained that the abandonment of affirmative action and the adoption of race-neutral policies would yield student populations just as diverse as the current ones—even though this assertion has been disproved by both statistical analysis and the experience of Michigan and California. SSFA celebrated Texas’s “race neutral” “Top Ten Percent” plan to admit the top 10 percent of students from every high school in the state. Yet that plan provided what SSFA regarded as an acceptable level of diversity only because so many school districts were overwhelmingly segregated. SFFA was arguing that race at once mattered and didn’t matter.
Chief Justice John Roberts became caught up in the fallacies of color-blindness as well, asking why a Black applicant from a privileged family in Grosse Pointe, Michigan, should be eligible for an admissions tip. What distinctive experiences of racial identity could such a candidate bring to a university community? But race helps define the lives of Black Americans no matter where they fall on the income scale. The hypothetical Black student from Grosse Pointe is likely at some time in his life to have been followed through a store by a security guard, or to have been underestimated in a class, or to have seen someone cross to the other side of the street when encountering him at night. Professor Henry Louis Gates, of Harvard, was arrested as an intruder in his own home. Wynton Marsalis was stopped by police while driving with members of his band after a gig in Virginia and held at gunpoint on suspicion of bank robbery. White people may have the luxury of thinking race doesn’t matter. Others are not permitted to forget that it does. And yet the SSFA brief insists that “race says nothing about who you are.” One of the group’s lawyers put it this way: Race, he said, is simply “cosmetic.”
The oral arguments began at 10:03 a.m.; they ended at 2:55 p.m. Throughout the nearly five hours of debate, I felt the specter of another day in this same courtroom, almost 70 years ago. Brown v. Board of Education was unanimously decided here in the spring of 1954, declaring segregation to be an unconstitutional “denial of the equal protection of the laws.” The case was a first step toward overturning segregation in every area of American life.
Brown led to my own first awareness of race. I was in elementary school in rural Virginia and lived in the home county of Senator Harry Byrd, who led the South’s opposition to the ruling. His plan for “massive resistance” pressed Virginians to close their schools rather than integrate them, and in several counties, including one adjacent to my own, they did. Even as a young child, I became aware of the flurry of concern among my family and neighbors about what they saw as the Supreme Court’s overreach and its challenge to the so-called southern way of life. But for me, the controversy over Brown had a different meaning. I had not yet understood the unspoken rules of my Virginia world; I had not yet realized that Black children were purposefully excluded from my school. Now, because of the Court’s decision, race was being explicitly talked about. If I painted my face, I asked a Black man who worked for my parents, would I not be allowed to go to my school? Suddenly I recognized myself as white and understood that this accident of racial identity came with privileges others were denied. I was not yet 10 years old, but I saw that race, in fact, said a great deal about who I was and who I was allowed to be.
In 1896, the Supreme Court’s decision in Plessy v. Ferguson had affirmed the doctrine of “separate but equal,” enshrining Jim Crow in American law. Fifty-eight years later, Brown overturned Plessy. Separate could not be equal. The impact of racial segregation on Black children threatened the very foundation of the American creed. Yet Students for Fair Admissions, in what the Supreme Court journalist Linda Greenhouse has called a startling “double bank shot,” seeks to claim the aura of Brown, a revered civil-rights landmark, to support an interpretation of color-blindness that would serve as an instrument for racial exclusion. Patrick Strawbridge opened his argument by insisting that “Brown finally and firmly rejected the view that racial classifications have any role to play in providing equal opportunities.” Affirmative action, SFFA claimed, was antithetical to Brown.
The aspirations of diversity have their roots in the integrationist promise—and racial awareness—of Brown. Chief Justice Earl Warren pressured his fellow justices to render a unanimous decision, because he wanted the case to mark a powerful departure, an unchallenged commitment to equity and inclusion for Black Americans. For 50 years, affirmative action has been advancing Brown’s fundamental purpose and promise: to eliminate the racial separation and degradation that had so long poisoned American life. But in recent decades, the Court has invoked “color-blindness” to strike down efforts to integrate public schools. The number of children attending largely segregated schools has increased dramatically since 2000. The decisions in the Harvard and North Carolina cases threaten to result in similar levels of exclusion in colleges and universities. We are in danger of reinstalling Jim Crow in the American educational system. To equate Brown and current anti–affirmative action arguments, Solicitor General Prelogar emphasized, “trivializes the grievous moral and legal wrongs of state-sponsored segregation and the enormous harms that millions of Americans suffered under it.” And it’s not just about the past. We are far from a “color-blind” or “postracial” society.
In midafternoon, as Chief Justice Roberts declared the “case submitted” and brought the proceedings to a close, I rose to leave the chamber, wondering how the Court’s ruling, whatever it turned out to be, would be seen in the eyes of history. It will be months before the Court issues a decision. As we wait, I will be reflecting on how the world has changed and not changed since Brown. I will be thinking as well about other cases whose names have resonated for me during a lifetime studying the history of slavery and race. I can hope that the Court might find a way forward that preserves the opportunities affirmative action has brought to so many. But perhaps I was just an eyewitness to the 21st century’s Plessy v. Ferguson.
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