Excerpted From: Margaret Kruzner, Redlining Reimagined: Exploring “Race-neural Alternatives” in the Likely Wake of Affirmative Action, 18 Duke Journal of Constitutional Law & Public Policy Sidebar 323 (March 7, 2023) (367 Footnotes) (Full Document)


MargaretKruznerIn his dissenting opinion in Fisher v. University of Texas at Austin, Justice Thomas explained his belief that affirmative action programs embody the “faddish theory that racial discrimination may produce educational benefits.” A mere six years later, the conservative originalist Justices have a new opportunity to declare affirmative action programs unconstitutional, thanks to the activist Edward Blum. In Students for Fair Admissions v. President and Fellows of Harvard College and Students for Fair Admissions v. University of North Carolina, Blum's non-profit organization urges the Supreme Court to overrule Grutter v. Bollinger. Grutter and its progeny established that a university may consider an applicant's race in admissions without offending the Constitution, so long as the university considers race to further a compelling interest, and its consideration is narrowly tailored to achieve that interest.

Students for Fair Admissions (SFFA) suggests that universities replace race-conscious admission with race-neutral alternatives to promote diversity. SFFA's proposed alternatives include merit-based percentage plans and advantaging socioeconomic diversity instead of racial or ethnic diversity. Blum and SFFA claim that race-neutral plans will achieve a comparable student body diversity. This rationale, however, paradoxically recognizes the lasting economic impact of Jim Crow laws and the social dilemmas faced by non-white students, but purports to remove race from the admissions process.

This Commentary examines the parties' arguments in both cases and assesses possible outcomes. If the Court adheres to the rule of stare decisis, it should uphold Harvard and UNC's admissions programs and retain affirmative action's constitutionality. This Commentary, however, chiefly explores the likely circumstance that Justice Thomas will seize his long-awaited opportunity to overrule Grutter and strike down affirmative action.

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Universities should reflect the diverse populations they prepare students to serve. Since Bakke and through Fisher II, the Court endorsed the importance of instilling cultural competence through education. Diverse classrooms create as a microcosm of the United States. They provide a unique-- and in many cities, otherwise unattainable--forum for students to learn from peers with different cultures, religions, and American experiences. And conversations with diverse viewpoints introduce students to the cultural considerations they must weigh when they leave the classroom and face the challenges of a modern world. This cultural competence will enable our future leaders to consider distributional impacts while lobbying for new laws, pursuing new medical research, or creating a new renewable energy source. This interest remains and is inadequately served by race-neutral alternatives that equate socioeconomic challenge with the experience of being a racial or ethnic minority in the United States.

Under the Court's current doctrine, universities must jump through hoop after hoop with exacting precision to use affirmative action. SFFA's contentions that universities discriminate against white and Asian students and are filling racial quotas are wholly unfounded by the evidence in both Harvard and UNC. But even if Harvard's or UNC's policies are factually discriminatory in the manner suggested by SFFA, they would be per se violative of the Court's current precedent and would not require upending decades of settled law. As Justice Thomas lauds, there is no use throwing the baby out with the bath water. Even accepting that Grutter's constitutional infirmary is the narrow deference it affords to universities in the compelling interest inquiry, the Court could overrule the Grutter deference without a noticeable effect on the strict scrutiny analysis. The evidence proffered in response to Fisher II's requirement that universities substantiate their specific diversity interests proves all that the Grutter deference assumes.

In sum, the Court has little reason to abandon the status quo of affirmative action. Striking down decades of affirmative action precedent would displace university funds to ineffective outreach programs, diluting university and state resources at the peril of students, and moreover opening universities to hordes of new liability. Unfortunately, the Court's embrace of “new textualism” positions it to accept SFFA's argument that Grutter is “grievously wrong” because it has “no support in the Fourteenth Amendment's ‘historical meaning.”’ It seems Justice Thomas's view of the Constitution will finally prevail.


J.D. Candidate, Duke University School of Law, 2024. B.A., Gonzaga University, 2021. I thank the Duke Journal of Constitutional Law & Public Policy Staff for contributing countless hours of advice.