How the landmark 1978 Supreme Court decision that upheld the practice may ultimately have set it on a path to being outlawed.
Justice Lewis F. Powell Jr.’s opinion allowed affirmative action to continue based solely on the educational benefits of diversity for all students. Credit... Photo Illustration by The New York Times. Source photograph: Robert S. Oakes/Library of Congress Galvanized Coil Sheet
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In the spring of 1977, Charles Ogletree, a law student at Harvard, asked for a meeting with a professor, Archibald Cox, who was preparing to defend affirmative action before the Supreme Court. Ogletree hadn’t taken a class with Cox. But as the national chairman of the Black Law Students Association, he wanted to explain how much the case, Regents of the University of California v. Bakke, meant to students like him.
Bakke was shaping up to be a blockbuster. If Cox lost, Ogletree feared that the next generation of students of color would no longer have meaningful access to schools like Harvard and public universities, which were finally open to them after centuries of near total exclusion.
Later, Ogletree wondered at his own temerity. More than any other faculty member, Cox had a towering reputation. He was famous — real-world famous. As the solicitor general appointed by John F. Kennedy, he argued crucial civil rights cases and had a hand in drafting the Voting Rights Act of 1965, a crowning achievement of the civil rights movement. Then in 1973, Cox served as the Watergate special prosecutor. He demanded the tapes from Richard M. Nixon’s White House, forcing a generation-defining showdown over the rule of law. When Cox refused to back down, Nixon ordered his attorney general, Elliot Richardson, to fire him. Richardson and the deputy attorney general, William Ruckelshaus, resigned rather than carry out Nixon’s order. That evening, Robert Bork, third in line at the Justice Department, fired Cox. The events, known as the Saturday Night Massacre, eventually helped lead to Nixon’s downfall.
Shy since childhood and deeply serious, Cox sometimes came across to students as curt and aloof. But he listened to Ogletree intently at their meeting, taking notes on his “legendary yellow pad,” as Ogletree, who would become a celebrated Harvard law professor himself, wrote in 2004 in The Harvard Law Review.
Cox’s challenge at the Supreme Court, as the lawyer for the University of California system, was to defend an admissions program at the medical school at U.C. Davis, which effectively reserved 16 of 100 spots for Black, Latino, Asian American and Native American applicants. Allan Bakke sued after being rejected from the medical school two years in a row. “I am a 33-year-old ex-Marine with a master’s degree in engineering, a very strong academic record and excellent (97th percentile in science) Medical College Admission Test scores,” Bakke, who was white, wrote in making a civil rights complaint. “I want to study medicine more than anything else in the world.” He argued that “reverse discrimination is as wrong as the primary variety it seeks to correct.”
Cox worked on his defense of the U.C. Davis admissions program for months, in an office hidden away on one of the upper levels of the Harvard law library. Each day, his secretary brought him a pot of tea and two Pepperidge Farm cookies on a porcelain dish. He and Ogletree kept talking. “It was quite an experience to see his craftsmanship as he tried to draft a brief that would simultaneously support the university’s program and persuade a Supreme Court that was increasingly conservative, particularly on matters of race,” Ogletree later remembered in 2004.
A backlash to the civil rights era was underway, and the justices were a focal point. In the weeks leading up to the argument in the Bakke case that fall, crowds of protesters gathered in Washington, demonstrating for and against affirmative action. Bakke was poised to be the court’s most important ruling on race since its order to desegregate public schools in Brown v. Board of Education in 1954. The case attracted about 60 friend-of-the-court briefs, a record at the time. On the day of the argument, Oct. 12, 1977, nearly 400 people stood in line for a seat, some carrying sleeping bags they had used while waiting through the night. Inside, some Black members of Congress, who as a group totaled only 17, took their seats in the audience.
In the moments before 10 a.m., Cox cranked up the wooden lectern in front of him to match his 6-foot-plus height. He wore the swallowtail suit he married in 40 years earlier. As solicitor general, Cox had a “dazzling won-lost record,” according to Ken Gormley’s biography, “Archibald Cox: Conscience of a Nation.” But now, at 65, he was deaf in his right ear. He cocked his left one toward the bench.
In his Harvard office, laboring over how to win five votes, Cox had taped a page from one of his yellow pads, handwritten in cursive, onto one of his typed drafts. He knew he would have to make different arguments to appeal to liberal and conservative justices, who could then negotiate behind closed doors. He was baiting a hook that might particularly appeal to perhaps the most likely swing justice — Lewis F. Powell Jr., a Nixon appointee from Virginia.
In many ways, Powell was the epitome of a white genteel Southerner. In 1959, as chairman of the public-school board in Richmond, he called compulsory integration “an unwelcome social change forced upon us by law” while discouraging defiance of the Supreme Court’s desegregation order in Brown. At the end of Powell’s tenure on the board in 1961, there were only two Black students attending school in Richmond with 23,000 white students, according to “Justice Lewis F. Powell Jr.,” a biography by John C. Jeffries Jr.
Now in court, glancing at his notes through his glasses, Cox told the justices that the “vital question” before them was whether a publicly funded university “is free voluntarily to take into account the fact that a qualified applicant is Black, Chicano, or Asian, or Native American.” By emphasizing that universities were deploying affirmative action on their own, Cox distinguished it from the compulsory integration Powell opposed.
Cox continued by anchoring affirmative action in righting historical wrongs. U.C. Davis’s goal, Cox said, is “to increase the number of qualified members of those minority groups trained for the educated professions and participating in them. Professions from which minorities were long excluded because of generations of pervasive racial discrimination.”
But this was an argument attuned to the court’s liberals, not its conservatives. Powell, in fact, had railed against “the guilt-ridden views of those who talk about reparations for past injustice” in a speech in 1970.
And so Cox offered an entirely alternative basis for upholding affirmative action. In his brief, written with three other lawyers — one of whom clerked for Powell — Cox said that the court’s past interpretation of the Constitution provided a school the freedom to pursue the educational benefits of diversity, including racial diversity, “to prepare students to live in a pluralistic society.” When the medical school at U.C. Davis opened in 1968, the first class included no Black, Latino or Native American students. Without special-admissions programs, almost all medical schools “were white islands in a multiracial society.”
Though Cox had no way of knowing it, his diversity rationale would become the sole basis of affirmative action in constitutional law, in many ways determining the course of university admissions for decades. The rationale allowed affirmative action to endure but left it vulnerable, stripping away history and the moral underpinning to remedy racism. Ever since Bakke, the defenders of race-based preferences have had to fight to preserve it, in effect, with one hand tied behind their backs. Now in the biggest suits of the current term, opponents and supporters of affirmative action are pressing their cases once more, to a far more conservative Supreme Court.
The cases before the Supreme Court this term demand an end to affirmative action as the country knows it. The plaintiffs, a group called Students for Fair Admissions (S.F.F.A.), are challenging the admissions policies of Harvard and the University of North Carolina. S.F.F.A. argues that the diversity rationale is “grievously wrong” and produces “crude stereotyping.” The universities have defended their practices, saying that a racially diverse student body is as vital as ever to their mission, because it “leads to greater knowledge for everyone” and “mutual respect,” and that race-based preferences remain necessary to achieving it.
At the oral argument in the U.N.C. case in October, some conservative justices attacked the diversity rationale directly. Justice Clarence Thomas expressed contempt for the very concept of diversity (“I don’t have a clue what it means”). Justice Samuel A. Alito Jr. similarly dismissed the concept of an underrepresented minority (“What does that mean?”).
S.F.F.A. also argues, as conservatives frequently do, that the 14th Amendment ensures equal protection without exception. That the Constitution, in essence, is colorblind. The diversity rationale has mistakenly allowed universities to abandon “the principle of racial neutrality,” in the plaintiffs’ view. Liberals, including Justice Ketanji Brown Jackson this term, say that the 14th Amendment was never colorblind, pointing out that its authors were addressing the legacy of slavery. In this view, preventing government programs from benefiting people of color is a fundamental misreading of the Constitution’s history and purpose.
The fight over what equal protection truly means has split the country since the Reconstruction era that followed the Civil War. In 1866, the same Congress that passed the 14th Amendment appropriated funds for “the relief of destitute colored women and children,” confirmed land sales limited to “heads of families of the African race” and gave property for schools “for colored children” in Washington, D.C. As a kind of progenitor to affirmative action, Congress compensated Black people, in some way, for the unfathomable cost they bore during slavery.
A race to the right. After a series of judicial bombshells in June that included eliminating the right to abortion, a Supreme Court dominated by conservatives returns to the bench — and there are few signs that the court’s rightward shift is slowing. Here’s a closer look at the new term:
Affirmative action. The marquee cases of the new term are challenges to the race-conscious admissions programs at Harvard and the University of North Carolina. While the court has repeatedly upheld affirmative-action programs, a six-justice conservative supermajority may put more than 40 years of precedents at risk.
Voting rights. The role race may play in government decision-making also figures in a case that is a challenge under the Voting Rights Act to an Alabama electoral map that a lower court had said diluted the power of Black voters. The case is a major new test of the Voting Rights Act in a court that has gradually limited the law’s reach in other contexts.
Discrimination against gay couples. The justices heard an appeal from a web designer who objects to providing services for same-sex marriages in a case that pits claims of religious freedom against laws banning discrimination based on sexual orientation. The court last considered the issue in 2018 in a similar dispute, but failed to yield a definitive ruling.
Immigration. The Supreme Court will hear arguments on the constitutionality of a 1986 law that makes it a crime to urge unauthorized immigrants to stay in the United States. The justices had already heard arguments on that question three years ago; several of them suggested then that the law violated the First Amendment.
There is a fundamental American tension between prizing individual achievement and promoting the collective spirit of the nation’s egalitarian promise, between the call to be colorblind and the call not to be blind to racism. Reconstruction prompted a searing and relentless reaction. As the Harvard law professor Randall Kennedy writes in his 2013 book, “For Discrimination,” “Every major step toward undoing racial oppression in America has been met with the charge that it constitutes reverse discrimination against whites and unfair preference for people of color.” In 1883, less than a generation after Emancipation, the Supreme Court struck down major parts of the 1875 Civil Rights Act. The law merely provided for equal treatment in places of public accommodation, like hotels and theaters. And still the justices wrote, “There must be some stage in a man’s emergence from slavery” when he “ceases to be the special favorite of the laws.”
Universities went through similar cycles of reform and retrenchment. Harvard accepted a small number of Black students after the Civil War. Charles Eliot, the president of Harvard from 1869 to 1909, also welcomed poor students alongside rich ones. The proportion of students from public high schools rose to 45 percent in the final year of his tenure, according Jerome Karabel’s book about elite college admissions, “The Chosen.” But Eliot was succeeded by Abbott Lawrence Lowell, who ejected Black students from the dorms and dining halls, imposed a quota on the number of Jewish students and took steps to ensure that most of the student body would come from wealthy Anglo-Saxon families.
In government and higher education, the reassertion of preferences for white people continued for decades. In the 1930s, the federal safety net of the New Deal — Social Security, unemployment compensation and the minimum wage — excluded domestic and agricultural workers, many of whom were Black and Hispanic. After World War II, the G.I. Bill of Rights disproportionately helped white veterans go to school, find jobs and buy homes, because it was designed to accommodate the Jim Crow laws of the South. Federal policy was anything but evenhanded, as the Columbia University historian Ira Katznelson showed in his 2005 book about this era, “When Affirmative Action Was White.” Elite universities also remained bastions of exclusion. In 1960, only nine Black students enrolled in a Harvard freshman class of more than 1,200. Yale and Princeton had even fewer.
The historic battles of the civil rights movement created a second era of Reconstruction. Congress enacted laws like the Voting Rights Act, and the modern era of affirmative action began. The term was coined by Hobart Taylor Jr., a Black lawyer in the Kennedy administration who added a line to an executive order in 1963 declaring that federal policy encouraged “by affirmative action the elimination of discrimination.” President Lyndon B. Johnson expanded the concept to address compensation for past inequity in a landmark commencement speech at Howard University in 1965. “You do not take a person who, for years, has been hobbled by chains,” Johnson said, “and liberate him, bring him up to the starting line of a race and then say, ‘You are free to compete with all the others,’ and still justly believe that you have been completely fair.”
To make up for past exclusion, government agencies gave hiring preferences to minority applicants and set aside a share of contracts for minority-owned companies. Some private employers followed suit. The Johnson administration threatened to withhold federal contracts from construction companies in Philadelphia, where the sheet-metal workers’ union had no Black members. Labor Department officials negotiated a proportional hiring requirement called the Philadelphia Plan.
For a brief, politically surprising moment, Nixon went further, framing access to jobs as his platform for civil rights. His administration revived the Philadelphia Plan and expanded it to dozens of cities, created an Office of Minority Business Enterprise and urged public-private partnerships to promote “Black capitalism.”
Universities, for their part, began broadening the demographics of their student bodies. Even as Harvard became more selective, choosing among rising numbers of applicants, the university admitted more students from public schools and ended the Jewish quota. The number of Black freshmen increased in the 1960s.
The shift yielded discoveries about merit and potential. Most Harvard applicants, university officials could see, had the grades, recommendations and test scores to succeed academically. Students of every background graduated at high rates.
Around this time, some of the country’s educational institutions celebrated diversity as a virtue. They saw it as a ticket to giving each student “the choice of enough variety to be himself and to enjoy himself,” the Harvard dean of admissions wrote in a report to the faculty in 1968, “while making the often painful effort to become a man of enough breadth and depth.”
The revolt against the affirmative action of the 1960s was immediate. Nixon’s conservative allies never liked his race-conscious jobs programs. (The Philadelphia Plan “is about as popular as a crab in a whorehouse,” Everett M. Dirksen, the Senate Republican leader, said at a meeting with Nixon officials.) Running for re-election in 1972, Nixon shifted to feeding white grievance, publicly stressing that he condemned “quotas” that benefited racial minorities.
White plaintiffs started suing for discrimination in hiring, contracting and, in cases that generated a great deal of attention, university admissions. The first suit reached the Supreme Court in 1973, four years before Bakke. The plaintiff, Marco DeFunis, sued the University of Washington law school, saying he was rejected despite having a better academic record than some of the minority students who were admitted. (Only 12 Black students graduated from the law school from 1902 to 1969.) DeFunis had the support of Jewish groups like the Anti-Defamation League and B’nai B’rith, which sided with him out of concerns about quotas.
Harvard University’s president, Derek Bok, a former law professor, worried about the impact on affirmative action writ large if the court decided in DeFunis’s favor. Bok called his close friend and colleague, Archibald Cox — who had recently been fired as the Watergate special prosecutor.
When he left Washington, Cox and his wife, Phyllis, retreated to her family farm in Maine. “It was a lonely time for him,” Cox’s former student and biographer, Ken Gormley, told me. “He chopped a lot of wood.” At Bok’s invitation, Cox dived into defending affirmative action. With the help of three younger lawyers, he wrote a friend-of-the-court brief for Harvard, filed in February 1974, which previewed his arguments in Bakke.
Cox described the obstacles to higher education that face members of minority groups, including bias, inferior schooling and economic barriers, as “direct or indirect consequences of slavery, ‘white supremacy’ and other historic prejudices.” And he offered an alternative rationale for affirmative action: Universities must be free to pursue the educational benefits of diversity. “It may seem original,” Bok, who co-wrote a book in 1998 on affirmative action, told me. “But if you go back into Harvard’s history, the whole idea of diversity is there.”
In his DeFunis brief, Cox explained that only 150 out of 1,100 freshmen were admitted to Harvard on their academic ability alone. “When the Committee on Admissions reviews the large middle group of applicants who are ‘admissible’ and deemed capable of doing good work in their courses, the race of an applicant may tip the balance in his favor,” Cox wrote, “just as geographic origin or a life spent on a farm may tip the balance in other candidates’ cases. A farm boy from Idaho can bring something to Harvard College that a Bostonian cannot offer. Similarly, a Black student can usually bring something that a white person cannot offer.”
In the end, DeFunis’s Supreme Court case was declared moot in 1974 because he went to law school after a lower court ordered his admission. But Cox’s argument — diversity benefits education for all — made a lasting impression on a key justice: Lewis Powell.
Like Cox, Powell spent months preparing for Bakke. One of his law clerks, Bob Comfort, gave up a week of summer vacation to start early on the case. Powell instructed him to search for a middle ground between allowing quotas and banning affirmative action outright. In an August 1977 memo, Comfort offered Cox’s diversity rationale, which Powell underlined. “This is position that appealed to me in DeFunis,” he wrote in the margins, as David Oppenheimer, a clinical law professor at the University of California, Berkeley, described in a 2018 law-review article. “Universities consider geography, athletic ability, work experience in promoting educational diversity,” Powell wrote on another page of Comfort’s memo. “Why shouldn’t race also be considered?”
After the oral argument in Bakke, the justices started circulating memos to stake out their positions. In late October, Chief Justice Warren Earl Burger, a conservative Nixon appointee, made clear that he wanted to force major changes at universities. U.C. Davis, Burger wrote, “does precisely what has long been condemned by this Court — it excludes applicants on the basis of race.” In other words, the law had to be colorblind.
The memos and internal deliberations of the justices usually stay within chambers, hidden from public view until they publish their opinions. Bakke is an exception. Decades later, the public record provided a rare view into the divide among the justices as they wrestled with the fundamental questions about race, equality and opportunity that have divided the country since Reconstruction. Bakke stands out because Justice William J. Brennan Jr.’s papers, at the Library of Congress, include a 37-page narrative about the justices’ negotiations. In addition, Powell’s papers, collected at the Washington and Lee law school, include memos and drafts from almost every justice in the months following the oral argument.
A week after Burger sent his memo, Justice Thurgood Marshall, who spent much of his career as a civil rights lawyer, at times putting his life at risk, responded with a memo about the history of Title VI of the Civil Rights Act of 1964. The law banned discrimination on the basis of race, color or national origin in any federally funded program, including universities, and Allan Bakke’s suit claimed that U.C. Davis violated his rights based on Title VI as well as the Constitution. Marshall’s memo, however, quoted one member of Congress after another saying that the purpose of Title VI was to rectify racism against Black people. In other words, the law was not colorblind.
Brennan followed in November with a memo about the purpose of the 14th Amendment. His chambers were near Marshall’s, and the justices were close friends and liberal allies. “To read the 14th Amendment to state an abstract principle of colorblindness is itself to be blind to history,” Brennan wrote. When Bakke was denied admission to medical school, he wasn’t “pinned with a badge of inferiority because he is white.” That was the constitutional difference between him and the Black children in Brown v. Board of Education who sued to integrate public schools.
Brennan, the court’s master tactician, trusted his clerks to be his emissaries. “He gave his clerks the most leeway to talk to the other chambers, and everyone knew that,” Steven Reiss, a Brennan clerk that term, told me. Yet for months, the views of two of the justices remained a mystery to them.
The first was Powell. “We knew that he was working on an opinion,” Reiss said. “But we didn’t know what it was, and the clerks wouldn’t tell us.” The second was Justice Harry A. Blackmun. He arrived on the court in 1970 after the Senate rejected Nixon’s initial two choices for the job. In his first few years, he wrote the majority opinion legalizing abortion in Roe v. Wade but dissented from the court’s short-lived ruling to strike down capital-punishment laws. “At the time, he was still viewed as conservative,” Reiss said. “Blackmun was Brennan’s long-term courtship.” That winter, however, Blackmun was recovering from surgery and said he hadn’t immersed himself in the case materials, growing irritated when Brennan asked about Bakke.
On Dec. 9, the court conferenced and took a split vote. Burger and Justices William H. Rehnquist, Potter Stewart and John Paul Stevens (a Gerald Ford nominee who later took liberal positions) voted to strike down the U.C. Davis admissions program. Opposing them were Brennan, Marshall and Justice Byron Raymond White, a Kennedy appointee.
Powell, for his part, made clear in a memo he sent before the December conference that he wanted to strike down the U.C. Davis admissions program. “He saw it as a racial spoil system,” Comfort said. It troubled Powell that Davis awarded some of the 16 spots it reserved for minority applicants to Asian Americans, who had better academic records on average than white applicants. “I think that clinched it for him,” Comfort said. “Why include them? Once that’s enshrined in the Constitution, how do you ever get rid of it?” In a section of Comfort’s memo about remedying past exclusion, Powell suggested that there was no principled way to distinguish among America’s many subgroups. “There would be no standard,” he wrote. “Italians not in N.Y. law firms!”
At the same time, Powell thought it would be repugnant to return to nearly all-white colleges or professional schools. He wanted to allow affirmative action as a temporary measure, and Cox’s diversity rationale offered a way. In his memo to the rest of the court, Powell extolled diversity on campus as essential to an “atmosphere which is most conducive to speculation, experiment and creation,” quoting Justice Felix Frankfurter in a 1957 concurring opinion. Powell included Cox’s passage about the Idaho farm boys and the success that most applicants to Harvard could achieve.
In Powell’s praise for Harvard, Brennan saw an opening. Powell could vote with the conservatives to strike down the quota at U.C. Davis, and he could vote with the liberals to oppose banning all racial preferences in admissions. Powell liked Brennan’s ingenious suggestion, according to Jeffries, Powell’s biographer.
But then the discussion took a turn. Marshall said he thought affirmative action would be needed not for a short duration, but for a hundred years. Powell was shocked. “I remember it vividly: He came back from that conference shaken,” Comfort said. “His view was, we’re doing this now because we have to do it, but it can’t be something that goes on and on.”
For months, the justices remained in limbo. On April 10, 1978, Burger went to see Powell, asking him to “join a narrow opinion striking down the Davis program,” Jeffries wrote in his biography. That was the issue before the court. There was no need to rule more broadly; Powell could leave the future of affirmative action for another day, Burger urged. Powell thought the idea was “foolish and shortsighted,” Comfort said. “It was the court’s job to get this question settled so the country could move forward.”
On April 12, Powell wrote a personal letter to Burger saying he would split his vote, as Brennan had suggested. Otherwise, he wrote, “no university in the country will feel free to give any consideration to race. I simply could not join that result.”
The next day, Marshall reminded his colleagues of Plessy v. Ferguson, the 1896 case that upheld a law requiring Black people to travel in separate train cars. In Plessy, only the dissent embraced colorblindness. Yet now a conservative majority, in Marshall’s view, was co-opting the principle of colorblindness to benefit white people. “It would be the cruelest irony,” Marshall wrote, “for this court to adopt the dissent in Plessy now and hold that the university must use color-blind admissions.”
All year, the case weighed heavily on Marshall. In his memo, he referred to a discussion the justices had about “whether Negroes have ‘arrived’”— in other words, whether they no longer needed or deserved the springboard of affirmative action. “It galled him so much that people were talking about reverse discrimination. Where were they when there was outright discrimination?” said Randall Kennedy, the Harvard law professor, who clerked for Marshall a few years after Bakke.
But in Kennedy’s view, Marshall was also privately conflicted about the need — however strong its historical basis — for a boost for some Black applicants. “One important part of him wanted everyone to be judged by a single rule,” Kennedy said. “It also galled him that part of an affirmative-action regime is, well, yes, these people are in, but they’re lesser-than. It was a problem of what galls you more. That was the dilemma.”
On May 1, Blackmun finally sent his colleagues a memo with his vote. He noted a contradiction: The court was “convulsed” over race-based preferences, yet universities also gave preferences “to the skilled athlete, to the children of alumni, to the affluent.” Blackmun sided with Marshall, Brennan and White, saying he would join the opinion Brennan was writing.
But over the next several weeks, as Brennan and Powell wrote and circulated and revised their draft opinions, the shaky coalition nearly fell apart. In his draft, Powell tried to make the case that allowing the diversity rationale did not mean allowing “discrimination” against white people. To underscore his point, Powell said it was “far too late” to recognize “special wards” — presumably, people of color — who thought they were “entitled to a degree of protection greater than that accorded others.”
This language infuriated Marshall, and he chided Powell, according to Brennan. Then, separately, Powell added a line suggesting that Brennan’s opinion endorsed Jewish quotas. “This was too much,” Brennan wrote in his account of the case. White took on the delicate task of asking Powell to take out the offending line. Powell expressed surprise but agreed.
On June 28, the justices announced their decisions to a packed courtroom. Powell explained that he had split his vote. With the four conservatives, Powell banned U.C. Davis’s approach of setting aside spots for minority candidates and ordered the medical school to admit Allan Bakke. (He later became an anesthesiologist in Minnesota.) But Powell voted with the four liberals to allow affirmative action to continue based solely on the educational benefits of diversity for all students. He also said that the only constitutional means of achieving the goal was Harvard’s method of considering the race of an applicant, alongside other criteria, in evaluating each candidate individually. Powell even included Harvard’s description of its admissions program in his opinion as a road map.
Cox declared victory. “My sense is that the Bakke case, although Bakke won, did very little to discourage affirmative-action programs,” he later told his biographer, Ken Gormley. “There may be some places where it actually encouraged them.”
In the wake of the decision, universities stopped using quotas or separate tracks for white students and students of color. Instead, they treated being an underrepresented minority — which meant, over time, being Black, Latino or Native American, but not Asian Americans — as a factor that could boost one applicant with strong qualifications above another to achieve a broad goal of representation. Many schools used preferences similarly for recruited athletes, children of major donors, alumni and faculty and staff members.
For 25 years, the Supreme Court declined to hear another suit challenging affirmative action in higher education. Powell told Jeffries, his biographer, that Bakke was his most important case. But Bakke was a relatively small win in the larger battle for racial justice being waged passionately on the court by Marshall. This larger cause fell prey, in many ways, to the post-civil-rights backlash, and in a sense Powell served as Marshall’s ideological foil.
Marshall’s greatest defeat, in his own eyes, occurred before Bakke. In 1974, the court considered, in the case Milliken v. Bradley, whether federal courts could require K-12 schools in Detroit and its surrounding suburbs to integrate across district lines by busing students. For all intents and purposes, Milliken would determine whether schools remained segregated in major metropolitan areas throughout the country.
Powell sided against allowing federal courts to require integration across district lines, supplying the fifth vote for Marshall’s loss. “After 20 years of small, often difficult steps toward that great end, the Court today takes a giant step backwards,” Marshall wrote in dissent. He predicted what followed: Many white affluent students in suburban schools remained almost entirely separate from Black and Latino low-income students. Milliken affected millions of students. Bakke, by contrast, had an impact on far fewer, at the back end of their education
Marshall also dissented as Powell helped dismantle affirmative action in hiring. In 1986, the court ruled that a local school board in Michigan could not lay off a white teacher with more seniority over a Black teacher with less. The school board said it was trying to remediate past discrimination by providing role models for students of color. “The role model theory allows the Board to engage in discriminatory hiring and layoff practices long past the point required by any legitimate remedial purpose,” Powell wrote in his opinion. He didn’t explain how the diversity rationale in Bakke was different on this score or why diversity among teachers is less beneficial than diversity among students.
Resistance to racial preferences in government contracting grew during the Reagan era, and the court delivered a final blow in 1989, in City of Richmond v. J.A. Croson Company, when a majority of six struck down Richmond’s policy of requiring construction companies to subcontract to minority-owned businesses. Marshall, still the lone Black justice, voiced the “deep irony” of preventing the former capital of the Confederacy from addressing its own “disgraceful history of public and private racial discrimination.”
Powell had retired in 1987, two years before the decision in the Richmond case, but the ruling against his hometown probably reflected his intent to restrict the scope of Bakke. “I think his view was that the diversity rationale was a way of limiting affirmative action to education,” Comfort said. “He thought, the answer is to train and educate leaders, not have racial classifications for firemen and postmen.”
Powell helped build a world of law stripped of the weight of the past. “The court has basically impoverished the equal protection clause,” says Sheryll Cashin, a law professor at Georgetown who clerked for Marshall in his final term beginning in 1990. He dissented in one last school desegregation case. When he retired in 1991, Clarence Thomas took his seat on the court.
In the 1990s, Bakke and affirmative action in higher education looked doomed. The Supreme Court became more conservative. California banned race-based preferences at public universities (along with government hiring and contracts) in a 1996 ballot initiative. Washington and Florida soon followed.
In 2003, breaking its 25-year silence, the court heard twin challenges to the use of race-based preferences in undergraduate and law-school admissions at the University of Michigan. Once again, two friend-of-the-court briefs unexpectedly influenced the court, much as Archibald Cox’s DeFunis brief did 30 years earlier. The briefs that appeared to save affirmative action this time came from top military leaders and executives at companies like Coca-Cola and Texaco. They relied on a racially diverse pool of college graduates “to cultivate a set of leaders with legitimacy in the eyes of the citizenry,” as Justice Sandra Day O’Connor, a swing-vote Republican appointee, put it in her majority opinion in Grutter v. Bollinger, upholding the same kind of individualized review of candidates that Powell favored in Bakke. O’Connor cited Powell dozens of times. (Stevens, in a switch from his stance in Bakke, supplied the fifth vote.)
After the court’s 2003 ruling in Grutter, Lee Bollinger, the president of the University of Michigan when the suit was filed, described the cost of being forced to justify affirmative action only in terms of the benefits of diversity. “The difficulty this posed for higher education was essentially that no one really believed that the past could or should be ignored or that the present society is by any means free of discrimination,” Bollinger wrote in The Columbia Law Review. “How, then, could we explain what we were doing without putting it in a social context that gave it life and meaning?” Without a rich understanding of why universities were building diverse student bodies, the public would not see the process as legitimate. “My view,” Bollinger concluded, “is that we almost lost what Brown had inspired because we did not adequately continue to teach the inspiration.”
Bollinger’s concerns were on point. State by state, voters and legislators continued to pass bans on race-based preferences in higher education. Nine states, including Michigan, now have such laws. Initially, the number of Black and Latino students fell steeply at several major public universities. Over time, however, many states took significant countermeasures to revive racial diversity while also recognizing socioeconomic disadvantage. Some public universities expanded financial aid. A few dropped legacy preferences. Some came up with race-neutral preferences for admission, based on factors like family income or geography. Results have been mixed. These countermeasures have helped increase the share of low-income students at flagship schools and the numbers of Black and Latino students, but not always to previous ratios.
One approach, first used in Texas, is to guarantee admission to public universities in the state to the top 10 percent of each high school class. Similar top-percent plans have since been adopted by public-university systems in Florida and California. In effect, they try to use segregation in K-12 schools to produce race and class diversity in college.
In 2016, the Supreme Court rejected a challenge to the admissions process at the University of Texas at Austin. The justices didn’t rule on the top-percent plan. But in dissent, Alito, one of the court’s most conservative justices, signaled support for class-based admissions preferences as a constitutionally permissible means of achieving racial diversity. Alito suggested that U.T. Austin could increase the number of students admitted under a top-percent plan or place “greater weight on socioeconomic factors.” (Thomas and Chief Justice John G. Roberts Jr. joined Alito’s opinion.)
When it comes to affirmative action on highly selective campuses, a common critique among both liberals and conservatives is that schools have made a bargain with economic elites of all races, with the exception of Asian Americans, who are underrepresented compared with their level of academic achievement. In the Ivy League, children whose parents are in the top 1 percent of the income distribution are 77 times as likely to attend as those whose parents are in the bottom 20 percent of the income bracket. At the same time, the lower-income students who do attend have a much higher chance of reaching the top of the earnings distribution than those at a public university, according to a 2020 study of 30 million college graduates, led by the economists Raj Chetty at Harvard and John N. Friedman at Brown. In other words, top universities are a powerful source of social mobility that goes woefully undertapped.
In 1978, Marshall and Brennan wrestled with the relationship between race, class and opportunity. In an early draft of his opinion in Bakke, Brennan declared that an affirmative-action program could not “simply equate minority status with disadvantage.” U.C. Davis, Brennan explained, considered economic need (with factors like whether students had to work through college) in deciding which Black, Latino or Asian American students to specially admit to medical school.
But Brennan felt conflicted. He asked Marshall whether he thought his own son, applying to college, should benefit from affirmative action. “Damn right,” Marshall answered, according to Brennan’s account. “They owe us.” In the end, Brennan cut the reference to economic disadvantage from his opinion.
Over the years, the Black middle class has grown even as the gap in wealth among different racial groups remains large. In other words, something, though far from everything, has changed. When Barack Obama campaigned for the Democratic nomination for president in 2008, he said that his daughters should not benefit from affirmative action and that it should be crafted so that “some of our children who are advantaged aren’t getting more favorable treatment than a poor white kid who has struggled more.”
Sheryll Cashin, the Georgetown law professor who clerked for Marshall, wrote a book in 2014 called “Place Not Race,” which called for using the level of poverty in a school or neighborhood as a basis for affirmative action. The record in the Harvard case shows that 55 percent of Black and Latino students get in without any race-based boost. Most are affluent (as is the case at many elite schools). “I am very clear that the Constitution doesn’t require colorblindness,” she says. “I wrote my book because I was frustrated that affirmative action wasn’t doing enough for people who needed help the most.”
In the 2003 ruling upholding affirmative action, O’Connor said the court expected the policy to last no more than 25 years. At the oral arguments last October, the emboldened conservative majority seemed ready to rule that time is up, five years early. They didn’t necessarily seem united, though, about what comes next.
The conservative majority could rule that the diversity rationale is simply wrong, as the plaintiffs, S.F.F.A., argue. Or they could accept that diversity has educational benefits, at least for the sake of argument, but say that schools like Harvard and U.N.C. can no longer achieve it by using race-based preferences. The court could tell universities that they may instead factor in where applicants live or go to school, or how they’ve overcome adversity, or how much money their families have. These factors would apply to students of all races, much as they do at public universities in states that ban affirmative action, like Texas and California. (The court could base its ruling on its interpretation of the 14th Amendment or its interpretation of Title VI of the Civil Rights Act.)
At the argument in October, some conservative justices focused on how the admissions process would change if applicants could no longer check a box indicating their race on a form. Roberts asked if an applicant could still submit an essay “about having to confront discrimination.” The implication was that if universities are evenhanded about assessing applicants, they could credit them for overcoming adversity, including racism.
Justice Amy Coney Barrett asked if the university could similarly credit an essay about racial identity as “a source of pride” or cultural heritage. Suggesting that she thought the answer should be yes, Barrett continued, “Why would that be different than someone writing about how important it was to them to have this passion for music in their life?”
Before S.F.F.A.’s case against Harvard reached the Supreme Court, Harvard had to disclose data about more than 160,000 applicants over six years. Asian American applicants, on average, received lower “personal ratings,” based on alumni interviews, essays and recommendations from teachers and guidance counselors, than other groups. The District Court judge found that nonetheless, Harvard didn’t discriminate against Asian American applicants. But at the argument, the conservative justices seemed skeptical. They could conclude that the record suggests that Harvard is prioritizing other groups to the detriment of Asian Americans. “I still haven’t heard any explanation for the disparity” in personal ratings, Alito said.
Experts for both S.F.F.A. and the university used Harvard’s admissions data to run simulations showing how the composition of the student body might change if the university tried to compensate for the loss of affirmative action with other measures. At the oral arguments, the justices focused on one of these simulations by the S.F.F.A. experts. It added a preference for low socioeconomic status and took away preferences for race and for being the child of an alumnus or faculty member.
In the resulting version of the student body, the academic credentials of the admitted class declined slightly. The share of students that experts on both sides counted as “disadvantaged” — because they’re among the first in their family to go to college, or they live in a low-income neighborhood, or their families make less than $80,000 a year — shot up to 49 percent from 18 percent. The racial and ethnic composition of a Harvard class also changed: The share of Latino and Asian American students rose substantially, and the share of Black and white students dropped substantially. For Black students, the percentage fell from 14 to 10. For white students, it fell from 40 to 33.
The justices discussed the implications of the data. Justice Brett Kavanaugh framed a key question in the case — about the continuing necessity of race-based preferences — as one of the trade-offs among Harvard’s priorities. “It seems that Harvard would have to sacrifice potentially something else”— like the current level of SAT scores or recruiting for a sports team — “to achieve what you think would be meaningful, sufficient racial diversity,” he said to the university’s lawyer. “And I think the questions [are], well, why don’t you have to then sacrifice those something elses?” He continued: “I think that’s a legal question we’re going to have to ultimately figure out. Does a university have to sacrifice those other things or not?”
It’s hard to predict how different selective schools will make such trade-offs. Some experts think that more universities will use measures of wealth that correlate better with racial diversity than income-based factors. (The simulations in the Harvard case included income not wealth.) But other experts think that at some schools, the drop in Black enrollment in particular will be too high to compensate for.
The Harvard and U.N.C. cases underscore that many people, of many backgrounds, believe for different reasons that admissions at highly selective universities is unfair. Even more so than at the time of Bakke, many qualified students, capable of thriving, vie for a too-limited number of coveted spots. Most of those spots have been going to students with less need for the life-changing experience an elite education can offer.
It’s possible, though, to appreciate the imperfect nature of all the admissions policies and court rulings — and how much more unequal the country would have been without them. “If you are a pure Platonist, you damn the whole thing,” Archibald Cox told Gormley, his biographer. “But I tried to understand the present human situation, as distinct from ideal situations.”
Cox died in 2004 when he was 92. A few years later, his granddaughter, Melissa Hart, helped lead the successful fight to defeat a ban on affirmative action in Colorado. She is now a justice on the State Supreme Court. Hart remembers, back when she was a law student, telling her grandfather that she thought the diversity rationale was a terrible mistake. “He was always willing to have the conversation and never willing to back down,” Hart says. “He said it was the strategically right way to argue the case” — the only way to win Powell’s vote. “And I see that’s true. I just wish we didn’t have to draw that line.”
Galvanized Steel Coil Z275 Emily Bazelon is a staff writer for the magazine and the Truman Capote fellow for creative writing and law at Yale Law School. Her book “Charged” (2019) won the Los Angeles Times Book Prize in the current-interest category.