By: Dahlia Wilson, Volume 107 Staff Member
In the 2022–23 term, the Supreme Court is faced with two seminal cases regarding universities’ uses of “affirmative action”—a.k.a. the consideration of race—in their admissions practices. Both Students for Fair Admissions v. University of North Carolina and Students for Fair Admissions v. President & Fellows of Harvard College address the issue of whether it is constitutional under the Fourteenth Amendment’s Equal Protection Clause for universities to consider race as a criterion in student admissions. The Petitioner is the same organization—Students for Fair Admissions—in both cases. In this Post, I will limit my analysis to the Harvard case, and will analyze how Justice Clarence Thomas’s previous opinions on race-based admissions may affect the upcoming ruling in Harvard—and how they have already shaped it.
This Post will analyze the main themes in the Harvard briefs and compare them to Justice Thomas’s previous jurisprudence, which is particularly instructive given that the cases will likely be decided by a 6–3 vote (or 6–2 if Justice Jackson recuses herself), with Justice Thomas in the majority. Given the ample quoting of Justice Thomas in the Petitioners’ appellate briefs, it seems likely that their goal is for the Court to adopt an anti-classification stance on the use of race and reject the use of race-conscious affirmative action in its entirety.
The use of race in admissions practices has been litigated before the Court numerous times, most recently in 2016 in Fisher v. University of Texas at Austin (Fisher II). Both Fisher I and Fisher II were concerned with “[w]hether a university’s use of an admissions policy that considered race as part of a holistic-review process violated the Equal Protection Clause at the time of an applicant’s rejection.” Fisher II narrowly upheld UT Austin’s holistic review, but the Court was clear that there are “three controlling principles relevant to assessing the constitutionality of a public university’s affirmative-action program.” First and foremost, the admissions process must “withstand strict scrutiny.” Secondly, universities are due “some, but not complete, judicial deference” in their “decision[s] to pursue ‘the educational benefits that flow from student body diversity’” and “cannot impose a fixed quota.” Finally, the university holds the burden in proving that its approach is narrowly tailored, and that race neutral policies “would not promote its interest in the educational benefits of diversity.”
In turn, both Fisher cases upheld an earlier affirmative action case, Grutter v. Bollinger. The Court held in Grutter that outright racial balancing is unconstitutional, but that the Equal Protection Clause does not prohibit a narrowly tailored “race-conscious admissions program.”
The petitioners in Harvard and UNC explicitly urge the Court to overturn Grutter to end race-conscious admissions and to reject the concept of a narrowly tailored consideration of race. Overturning established precedent, especially one that has been upheld in subsequent Supreme Court decisions such as the Fisher cases, has until now seemed unlikely. But the composition of the Court has shifted within the past few years, and one justice in particular, Justice Clarence Thomas, has demonstrated that affirmative action—or rather, his opposition to it—is a lynchpin of his worldview and jurisprudence. By urging the overturning of Grutter, the petitioners draw directly on Justice Thomas’s dissent in Fisher I, in which he urged overturning Grutter, in the hopes that a new conservative majority on the Court could make race-based admissions categorically unconstitutional. Justice Thomas’s Viewpoints on Affirmative Action
Justice Thomas’s views on affirmative action and “so-called ‘benign’ [racial] discrimination” were likely fomented by his experiences as one of only a few Black men who attended Yale Law School at the time, and his “reaction to the irony of being viewed as a beneficiary of affirmative action at every level of professional attainment,” including his appointment to the Supreme Court. Regardless of where it came from, Justice Thomas made his views on race-based educational policies abundantly clear in Missouri v. Jenkins, a case that determined whether a school district could attract white teachers from other districts with salary increases in order to “remedy the vestiges of segregation”: “It never ceases to amaze me that the courts are so willing to assume that anything that is predominantly [B]lack must be inferior.” He also affirmed his stance, later referenced in many of his other opinions, that “the government must treat citizens as individuals, and not as members of racial, ethnic, or religious groups.”
In essence, Justice Thomas rejected the progressive legal doctrine of “an anti-subordination reading of the Equal Protection Clause,” in favor of a flat anti-classification stance. Anti-subordination principles “emphasize that the concern of the American civil rights tradition had always been the subordination of social groups and the necessity of breaking up unjust social structures,” not avoiding the classification of people by race entirely. Justice Thomas evidently begs to differ.
II. JUSTICE THOMAS’S IMPACT ON THE CURRENT CASES BEFORE THE COURT
The crux of petitioners’ argument in Harvard mirrors that of Justice Thomas in Jenkins. Petitioners wrote that “Harvard’s originalist arguments are wrong because, other than Grutter’s aberration, Title VI and the Fourteenth Amendment have always meant the same thing: no racial classifications in education.” The petitioners specifically take issue with Harvard’s self-described “holistic admissions system,” on the grounds that the school impermissibly “uses race at every stage of the admissions process”  in contravention of the Equal Protection Clause and other standards established in the case law.
Fisher II established that narrow tailoring “does impose on the university the ultimate burden of demonstrating that race-neutral alternatives that are both available and workable do not suffice.”  Petitioners seized on that theme by arguing that “Harvard has workable race-neutral alternatives” that it is not currently implementing. 
Justice Thomas favors such admissions systems that are “facially race-neutral,” even if there are racial discrepancies undergirding them, but he disagrees with the Court’s precedent that schools should be entitled to judicial deference in making that decision. He stated that principle clearly in his Grutter dissent: “The Law School may freely continue to employ the LSAT and other allegedly merit-based standards in whatever fashion it likes. What the Equal Protection Clause forbids, but the Court today allows, is the use of these standards hand-in-hand with racial discrimination.” In essence, he acknowledges that many admissions criteria have racial disparities, but making decisions overtly based on race is, in his view, a step too far. If anything, he would probably prefer that schools provide justification for why they continue to use facially race-neutral methods that have downstream impacts on racial composition, such as the LSAT.
In that vein, the petitioners refer directly to Justice Thomas’s Grutter dissent by stating that “Harvard ignores that it is the one excluding underrepresented minorities—mainly by preferencing the overwhelmingly white children of donors, alumni, and professors.” This couldn’t be a more clear mirror of Justice Thomas’s own language in Grutter, which read “[legacy admissions,] and other, exceptions to a ‘true’ meritocracy give the lie to protestations that merit admissions are in fact the order of the day at the Nation’s universities.”
In his dissent, Justice Thomas also directly critiques the Grutter Court’s twenty-five-year time limit on reevaluating whether the school’s affirmative action program is narrowly tailored to a compelling state interest. In turn, the Harvard petitioners argue that because almost twenty-five years have elapsed since Grutter and “racial preferences [have not] wane[d],” that any reliance interest Harvard and other schools had on that case’s precedent has “expired.” Justice Thomas made very specific statements in Grutter about the timeliness of affirmative action: “At that point [after 25 years] these policies will clearly have failed to eliminate the [perceived] need for any racial or ethnic discrimination because the academic credentials gap will still be there.”Based on these statements, it is highly likely Justice Thomas, if writing for the majority, would find that any narrowly tailored interest that might once have existed is no longer a compelling justification for affirmative action.
Justice Thomas’s views are in direct tension with the First Circuit Court of Appeals’ holding on the very issue how long race needs to be considered in admissions in order to achieve racial diversity in the student population:
Importantly, the evidence is that Harvard has periodically reviewed its use of race in the past, has periodically and recently considered race-neutral alternatives, and has made it clear that it will continue to do so in the future. . . . No Supreme Court precedent requires Harvard to identify a specific end point for its use of race.
The First Circuit also held that “Harvard has sufficiently met the requirements of Fisher I, Fisher II, and earlier cases to show the specific goals it achieves from diversity and that its interest is compelling.” Justice Thomas does not believe that the Court should give deference to “a university’s interest in student body diversity” in and of itself. In his concurrence in Jenkins, he disagreed with the “theory that racial imbalances are [themselves] unconstitutional.” This is again directly in line with the Harvard petitioners’ argument that “diversity is merely the current rationale of convenience.”
One has to wonder if petitioners would have brought suit at all if Justice Thomas had not laid the groundwork for overturning Grutter so cleanly; certainly, the arguments they had to make couldn’t have been more plainly laid out for them. One of Justice Thomas’s strengths as a jurist is creating a trail of breadcrumbs for himself and other conservative Justices by laying the foundations for how he thinks the law should be interpreted, even if he was, up until that point, writing in the dissent. The precedent-overturning decision in Dobbs v. Jackson Women’s Health Organization, which the petitioners make sure to cite in their response brief, served as a sign to petitioners that all manner of previously settled issues are now ripe for review. They seized on that opportunity by not only bringing suit, but by quoting Justice Thomas in the hopes that he will be writing for the majority and will apply a strict anti-classification interpretation of the Equal Protection Clause in overturning Grutter and eliminating race-conscious admissions.
 2021 U.S. App. LEXIS 37239 (4th Cir. 2021), cert. granted before judgment, 142 S. Ct. 896 (2022) (No. 21-707).
 980 F.3d 157 (1st Cir. 2020), cert. granted, 142 S. Ct. 896 (2022) (No. 21-707).
 Justice Jackson is “recusing herself from [the] case involving Harvard University, where she recently completed a six-year term on the university’s board of overseers.” Amy Howe, Court Will Hear Affirmative-Action Challenges Separately, Allowing Jackson to Participate in UNC Case, SCOTUSBlog (July 22, 2022), https://www.scotusblog.com/2022/07/court-will-hear-affirmative-action-challenges-separately-allowing-jackson-to-participate-in-unc-case [https://perma.cc/35N4-HRJR].
 579 U.S. 365 (2016).
 Id. at 376.
 Fisher v. Univ. of Tex. at Austin (Fisher I), 570 U.S. 297, 309 (2013) (defining “strict scrutiny” as “purpose or interest is both constitutionally permissible and substantial, and that its use of the classification is necessary . . . to the accomplishment of its purpose”); see also Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 227 (1995) (considering race must serve a “compelling government interest,” “be narrowly tailored” to achieve only that interest, and must be the “least restrictive means of realizing that interest”).
 Fisher I, 570 U.S. at 310.
 Id. at 311.
 Id. at 312.
 539 U.S. 306 (2003).
 Id. at 334.
 See Response Brief for Petitioner at 2, Students for Fair Admissions, Inc. v. President & Fellows of Harv. Coll., 980 F.3d 157 (1st Cir. 2020) (“Grutter should be overruled.”) [hereinafter Petitioner Response Brief]; Petition for Writ of Certiorari Before Judgment at 13, Students for Fair Admissions, Inc. v. Univ. of N.C., 2021 U.S. App. LEXIS 37239 (4th Cir. 2021) (“Grutter should be overruled.”).
 Fisher I, 570 U.S. at 315 (Thomas, J., concurring) (“I write separately to explain that I would overrule Grutter v. Bollinger . . . and hold that a State’s use of race in higher education admissions decisions is categorically prohibited by the Equal Protection Clause.”) (citation omitted).
 Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 214 (1995).
 Note, Lasting Stigma: Affirmative Action and Clarence Thomas’s Prisoners’ Rights Jurisprudence, 112 Harv. L. Rev. 1331, 1332 (1999).
 Missouri v. Jenkins, 515 U.S. 70, 73 (1995).
 Id. at 115 (Thomas, J., concurring).
 Id. at 120–21 (Thomas, J., concurring).
 Reynato S. Puno, Equal Dignity & Respect: The Substance of Equal Protection and Social Justice 153 (Josephine G. Maribojoc ed., 2012).
 Petitioner Response Brief, supra note 11, at 4.
 Petition for Writ of Certiorari at 4, Students for Fair Admissions, Inc. v. President & Fellows of Harv. Coll., 980 F.3d 157 (1st Cir. 2020) [hereinafter Harvard Cert. Petition].
 Id. at 8.
 “No State shall . . . deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const. amend. XIV, § 1.
 See, e.g., Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 319 (1978) (holding reservation of specific minority spots in an incoming class to be unconstitutional, but allowing the use of race as a “plus factor” in holistic admissions); Gratz v. Bollinger, 539 U.S. 244, 295 (2003) (stating that allocating a point system that would “convert race into a decisive factor comparable to reserving minority places as in Bakke” would not be permissible).
 Fisher v. Univ. of Tex. at Austin (Fisher II), 579 U.S. 365, 376–77 (2016) (citing Fisher v. Univ. of Tex. at Austin (Fisher I), 570 U.S. 297, 312 (2013)) (internal quotation marks omitted).
 Harvard Cert. Petition, supra note 21, at 25.
 Grutter v. Bollinger, 539 U.S. 306, 369 (2003) (Thomas, J., concurring in part and dissenting in part).
 Id. at 370 (Thomas, J., concurring in part and dissenting in part).
 Petitioner Response Brief, supra note 11, at 9 (emphasis in original).
 Grutter, 539 U.S. at 368 (Thomas, J., concurring in part and dissenting in part).
 Id. at 375 (Thomas, J., concurring in part and dissenting in part) (“While I agree that in 25 years the practices of the Law School will be illegal, they are, for the reasons I have given, illegal now.”).
 Petitioner Response Brief, supra note 11, at 19.
 Grutter, 539 U.S. at 377–78 (Thomas, J., concurring in part and dissenting in part) (internal quotation marks omitted).
 Students for Fair Admissions, Inc. v. President & Fellows of Harv. Coll., 980 F.3d 157, 192 (1st Cir. 2020).
 Id. at 187.
 Id. at 185.
 Missouri v. Jenkins, 515 U.S. 70, 118 (1995) (Thomas, J., concurring).
 Petitioner Response Brief, supra note 11, at 18 (citing Grutter, 539 U.S. at 393 (Kennedy, J., dissenting)).
 142 S.Ct. 2228 (2022).
 Petitioner Response Brief, supra note 11, at 7.