June 23 marks the 15th anniversary of Grutter v. Bollinger, the most important affirmative action decision since the Bakke case of 1978. We mark the date because Justice Sandra Day O’Connor told us to—and the deadline she set is only 10 years away now. In her majority opinion in Grutter, she upheld the University of Michigan Law School’s treatment of race as a “plus” factor in admissions, but she also set a time limit for that policy: “We expect that 25 years from now the use of racial preferences will no longer be necessary to further the interest approved today.” Given what she said about the temporary nature of race-based decision-making elsewhere in her opinion, we know that the statement was not merely an expression of hope that colleges would by 2028 reach minority enrollments in proportion to the general population. It firmly decreed that affirmative action would be legal only for a set period of time, a quarter-century.
Three months earlier, Atlanta attorney A. Lee Parks, who had won a case challenging affirmative action at the University of Georgia, wrote in the Chronicle of Higher Education, “Title VI provides a straightforward statutory basis for invalidating Michigan’s policy.” In Bakke, Justice Lewis Powell famously elevated diversity into a compelling state interest that overrides Title VI, but as Parks noted, “no other justice joined in that part of his opinion.” Instead, during oral arguments, Chief Justice William Rehnquist and Justices Antonin Scalia and Anthony Kennedy pressed Michigan’s counsel on whether the term “critical mass” amounted to a quota (if it did, it clearly violated what the court ruled in Bakke). She responded that at Michigan “there is no fixed number,” but rather variation every year due to “the characteristics of the applicant pool”—at best, a thin justification.
When the court’s 5-4 decision in Grutter came down, supporters of affirmative action claimed victory. The New York Times editorialized that the decision “essentially ratified an existing national consensus.” A letter signed by a group of distinguished constitutional scholars began, “Affirmative action in higher education is alive and well.”
But depicting the decision as an unequivocal victory for affirmative action meant deliberately ignoring the expiration date O’Connor had set. Justice Clarence Thomas said in his dissent, “I agree with the Court’s holding that racial discrimination in higher education admissions will be illegal in 25 years,” but progressive supporters of affirmative action interpreted the 25-year horizon as conditional, or at least ambiguous enough for them to claim that if proportional representation of minorities isn’t reached by 2028, affirmative action won’t end.
Harvard law professor Charles Fried, solicitor general under Ronald Reagan but later a supporter of Barack Obama, stated that O’Connor’s assertion “is no limitation at all,” only an “expectation.” Yale professor Robert Post argued that the timetable “sounds more like a pious wish than a conclusion of law.” An article in a 2006 issue of the Ohio State Law Journal claimed that O’Connor cast the whole issue of durational limits “almost as an afterthought.”
On the contrary, everything O’Connor wrote in her opinion suggests she intended the deadline as more than a mere suggestion or hope.
In oral arguments, she worried about programs with “a vague distant termination base.” In the paragraphs in her opinion preceding the 25-year marker, she cited one precedent that made clear the 14th Amendment doesn’t allow “governmentally imposed discrimination based on race.” It doesn’t matter how “compelling” the goals, she continued, our “fundamental equal protection principle” forbids us from “enshrining a permanent justification for racial preferences.”
Further, she wrote, “Race-conscious admissions policies must be limited in time” and “all governmental use of race must have a logical end point.” She even noted that institutions of higher education could use “sunset provisions in race conscious admissions policies and periodic reviews to determine whether racial preferences are still necessary to achieve student body diversity.” The university itself acknowledged the temporary aspect of the practice, O’Connor noted: “The Law School, too, concedes that all ‘race-conscious programs must have reasonable durational limits.’ ”
You can’t construe Justice O’Connor’s statements as anything other than an expiration date. To make race-conscious decisions is “dangerous,” she wrote, a “deviation from the norm of equal treatment,” as another precedent she quoted put it. That is why she said explicitly that it is a “requirement that all race-conscious admissions programs have a termination point.” When O’Connor wrote her Grutter opinion it had been 25 years since Bakke; another 25 years probably seemed a reasonable amount of time. By this reasoning, on June 24, 2028, affirmative action will be unconstitutional.
Of course, when that day arrives and colleges haven’t achieved racially proportionate representation, everybody will be dismayed. But by specifying an endpoint to affirmative action policies, Justice O’Connor did something useful for the cause of equality: She decoupled the laudable goal of equality from the means employed to achieve it.
It is easy for people to become so invested in a policy that they stress the practice more than the purpose, especially when the practice has acquired so much symbolic value and when the livelihoods of thousands of diversity administrators depend upon it. Recall the name of a prominent group formed to defend affirmative action in the 1990s: BAMN, which stands for “By Any Means Necessary.”
Sunset provisions, by contrast, force administrators periodically to assess whether a particular method remains effective. If they know a policy won’t last forever, they must keep alternatives in mind, which means adopting a more pragmatic rather than an ideological approach to implementation. This also allows administrators to adjust to changing times.
The racial gap in education closed significantly during the mid- to late-20th century, but in recent years that progress has slowed. The black-white score gap on the National Assessment of Educational Progress exam for 8th-grade students in reading was 27 points in 2002, 27 in 2007, and 26 in 2017. The math gap for 12th graders was 31 points in 2005 and remained mostly unchanged in 2015.
At the postgraduate level, rates of African-American achievement are disheartening. According to the National Science Foundation, people who are “Black or African-American” earned barely 2 percent of Ph.D.s in physical sciences and earth sciences in 2016. Universities awarded 1,730 doctorates in math and computer sciences in 2016, but only 78 of them went to black or African-American individuals.
Even in the humanities, where African-American studies programs and hiring have been an obsession for more than three decades, blacks and African-Americans didn’t even reach 4 percent of the total.
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An understanding that affirmative action policies are only temporary helps a society that embraces them to weigh the costs against the benefits, which in this case, as data show, are meager for the group the policy is intended to help.
Fifty years of affirmative action in college admissions hasn’t led to anything like a critical mass of African-Americans in the higher reaches of academia, but it has aggravated group tensions on campuses and throughout the country. Equal protection gives Americans confidence in their nation and their place within it. Preferences erode that civic sense. That’s why Justice O’Connor was not being hyperbolic when she called racial classifications “dangerous.” (It is telling that when she retired from the Court, Justice O’Connor devoted herself to civic education in primary and secondary schools.)
Meanwhile, as academics and advocates have fervently defended the practice in spite of its small demonstrable advantages, the share of black children who live in single-parent households has risen to two-thirds. Given the high correlation between family structure and educational attainment, this trend casts affirmative action in a different light. Racial preferences boost a tiny cohort of African-Americans once they reach the point where they can seek entry into elite institutions. But for everyone else, it does little.
A time limit on affirmative action makes it easier to recognize this incongruity. The end of Grutter wouldn’t mean the end of efforts to improve the prospects of minority students. It signals a more flexible approach to democratic problem-solving and reminds everyone that each particular instrument of social engineering that skirts American norms must, at some point, end.
We may find that end coming sooner than O’Connor’s 2028 deadline. A group called Students for Fair Admissions has sued Harvard University on the grounds that Harvard discriminates against Asian-American students. It has marshaled persuasive evidence to justify its claim. The pool of highly competitive Asian-American applicants has grown considerably in recent years, but at Harvard and other elite schools, the rate of acceptance for those students hasn’t risen accordingly. As the case moves forward—it will be heard in a district court in October—defenders of affirmative action will no doubt rely on the Grutter decision.
But Grutter may not prove the most reliable ally. If we go back to Justice O’Connor’s opinion, we find another statement about preferences that perfectly suits the claims of the Asian-American students: “Narrow tailoring, therefore, requires that a race-conscious admissions program not unduly harm members of any racial group.” In the next sentence, she reiterates the need for “continual oversight” to ensure that such harm doesn’t occur:
Note carefully the words O’Connor chose to quote in that sentence. They come from Justice Powell’s opinion in Bakke, the ruling that first allowed diversity ideology in higher education. Powell’s reasoning carries great standing among affirmative action proponents, but it will not be difficult to use his formulation to demonstrate that Asian-Americans are “innocent persons” who nevertheless now have a much higher bar to cross to gain admission to elite institutions.
In demonstrating the undue harm visited upon Asian-Americans, the complainants can cite the very sources that fans of affirmative action have depended upon for 40 years and whose decisions they would do well to revisit more carefully: Justices Powell and O’Connor.
