The Goose and the Gander: How Conservative Precedents Will Save Campus Affirmative Action

Abstract

In the twin cases of Students for Fair Admissions v. Harvard and Students for Fair Admissions v. University of North Carolina, the Supreme Court rejected two leading universities’ race-conscious admissions policies. Commenters, scholars, and Justices (dissenting and concurring) contend that the ruling spells the end of campus affirmative action.

We predict otherwise. We agree that the Supreme Court has effectively held that all diversity-promoting affirmative in university admissions is unconstitutional. But we argue that the ruling will require little to no practical change in the operation of colleges’ affirmative action programs. Instead, we explain that the Supreme Court’s precedents—in Washington v. Davis and McCleskey v. Kemp—will indefinitely foreclose most challenges to affirmative action. Thus, with very slight alterations, colleges can continue to admit students exactly as they have since at least the 1990s. Ironically, the Davis and McCleskey cases have, for decades, been the bane of progressive impact litigators fighting alleged racial discrimination in criminal enforcement, voting, and elsewhere. The cases have, conversely, been defended by conservatives. Now, however, their partisan valences have been scrambled. The Supreme Court could eventually overturn both cases for the sake of eradicating racial preferences in college admissions. But doing so would be boon to progressives (and a curse to conservatives) in other arenas. As the engraving atop the United States Supreme Court Building reads, “EQUAL • JUSTICE • UNDER • LAW.” Such equality abides in antidiscrimination law: what’s good for the goose is good for the gander.

Keywords: affirmative action, antidiscrimination, Equal Protection, Constitution, Title VI

JEL Classification: K10, K19, K30, K39