In the spring of 2003, Marvin Krislov, the general counsel at the University of Michigan, found himself at the center of a national debate about race. The law school and the College of Literature, Science, and the Arts had long-standing policies of considering race in admissions, and now white students who had been rejected were suing the university. These cases, Grutter v. Bollinger and Gratz v. Bollinger—named for the school’s president, Lee Bollinger—were set to be heard by the Supreme Court.
In the meantime, Krislov was dispatched to defend his employer in the court of public opinion. He would go on the radio to pitch the virtues of a diverse student body, and people would call in and talk about their kid, or their sister’s kid, or their neighbor’s sister’s kid: great G.P.A., great extracurriculars, and, still, they’d been rejected by the University of Michigan! Something unfair must be going on. As part of his campaign, Krislov talked with groups of students across the state. “I remember going to one high school—it was a progressive high school, largely upper middle class,” he recalled. Most of the students were white. He spoke with them about segregation and the civil-rights movement, and he explained why affirmative action had been implemented in the first place. “It was about trying to create a society and a community that reflected the best ideals of America,” he told the students. And yet, he recalled recently, “I remember some very bright young people who, at the end of the day, were most concerned about what it meant for them.”
The Supreme Court ended up striking a balance in the Michigan cases that has stood for almost two decades. The Court ruled that the college’s policy of adding points to minority students’ applications was unconstitutional. But it was acceptable to give detailed, individual consideration to each candidate while taking race into account—the process used by Michigan’s law school. That balance, and the use of affirmative action of any kind in admissions, is now up for reconsideration in two cases before the Supreme Court, which heard oral arguments on Monday. A group of Asian American students, led by the conservative activist Edward Blum, have accused Harvard and the University of North Carolina of discriminating against them, systematically docking their applications with amorphous and stereotype-ridden measures of personality and character—one example being the “personal rating” that Harvard assigns to every student who applies. Students for Fair Admissions, or S.F.F.A., has supplied data suggesting that Asian students consistently get the lowest ratings of any racial group. (Harvard contests their findings, and maintains that its admissions officers do not discriminate when assigning personal ratings.) At U.N.C., S.F.F.A. claims, white and Asian students face a higher bar for admission than their Black and Latino peers. (U.N.C. says that race is just one factor in how applications are evaluated, and that it accounts for only about one per cent of admissions decisions.) District and circuit courts ruled in both schools’ favor.
The Harvard case is arguably designed to leave good-faith people feeling conflicted: Diversity and racial equity are good! Discrimination is bad! Does one have to come at the expense of the other? “The Harvard admissions case can mess with your mind,” a group of Asian American social scientists wrote in a Medium post, in 2019. “These charges resonate with all Asian Americans. They confirm our worst fears. At the same time, we must remain skeptical of these charges and how they are being used.” Affirmative action “is one of the few programs we see that is really trying to address structural inequalities,” Janelle Wong, the director of the Asian American Studies program at the University of Maryland and one of the post’s authors, told me. “And it is under attack at the same time there is growing awareness of structural inequalities.”
This has been one of the most confounding aspects of the affirmative-action debate in 2022: that general ambivalence about the policy—the same cognitive dissonance that Krislov encountered in the early two-thousands—is still so widespread, even during a time when attention to racial injustice is arguably quite high. It’s a quirky subject, one that often seems set apart from other debates about race in America. Some polls suggest that Americans do support affirmative action by wide margins: Gallup found that, in 2018, sixty-one per cent of respondents favored the policy for racial minorities, up fourteen percentage points from 2001. But, if survey questions are phrased differently, they can elicit wildly different results. In a 2022 Pew Research Center survey, seventy-four per cent of respondents said that race and ethnicity should not factor into college admissions at all.
Of course, there’s an obvious possible answer to the question of why some Americans are still dead set on ending affirmative action. “The strength and the intensity of the opposition to affirmative action can’t be explained without reference to bald racism,” Richard Thompson Ford, a law professor at Stanford University, said. In his view, the Harvard case is unlikely to bring to a close the endless cycles of litigation. Some affirmative-action opponents, he thinks, simply want to see fewer Black and brown faces at freshman orientation, and the lawsuits won’t stop until that happens.
If the Court does rule against affirmative-action programs, we have a preview of what the results might look like. Over the years, a few states, including California, Arizona, and Michigan, have banned affirmative action at public institutions. As a result, the flagship universities in those states have become natural experiments in what happens when schools don’t consider race in admissions. One example is the University of Michigan, whose affirmative-action policies were shut down by voters in a 2006 ballot initiative. Krislov, who’d spent years defending those policies, said, “The political process in Michigan showed that the broader policy context was not necessarily connecting with what was happening on the ground.” It was hard to explain how the admissions process actually worked, and the subtle ways in which race factored into decisions. When he’d talked to people about the benefits of affirmative action, he always argued that the policy helped make the university more diverse. So it’s perhaps no surprise that the University of Michigan’s student body has since become much less diverse. The school filed a brief in support of Harvard and U.N.C. in their Supreme Court cases, reporting “a marked and sustained drop” among “Black and Native American students, whose enrollment has fallen by 44 percent and 90 percent, respectively,” since December, 2006.
In its original form, affirmative action was never intended to achieve diversity. The policy was meant to correct “centuries of unequal treatment,” Justice Thurgood Marshall wrote, in a 1978 court opinion. For too long, positions of “influence, affluence, and prestige” were unavailable to Black people, he argued, and, if American society was ever to become fully integrated, the country would need to make extra efforts to insure that Black people could attain those leadership roles. But, that year, the Supreme Court ruled that universities could not institute quotas for minorities, nor could they factor race into admissions in pursuit of broader societal justice. The only acceptable rationale for affirmative action was diversity—a means to expose the nation’s future leaders “to the ideas and mores of students as diverse as this Nation of many peoples.” In this light, the aspiration that Harvard outlines in its Supreme Court brief—to enhance “the education of our students” and prepare “them to assume leadership roles in the increasingly pluralistic society into which they will graduate”—is clearly riddled with hypocrisies; lots of kids get special consideration because of their wealth or background or family connections. Roughly thirty per cent of Harvard’s admitted students are so-called A.L.D.C.s—athletes, legacies, relatives of donors, or children of Harvard faculty and staff—according to court documents. And roughly seventy per cent of its students identify as liberal, according to Eric Kaufmann, a professor at the University of London, who analyzed data from the Foundation for Individual Rights and Expression, or FIRE, which promotes free speech on campuses.
In oral arguments on Monday, Justice Brett Kavanaugh asked why Harvard doesn’t ask applicants about other forms of diversity, such as religion, which might help the school admit more evangelical Christians or Catholics, for example. Meanwhile, Justices Clarence Thomas and Samuel Alito questioned how meaningful terms like “diversity” and “underrepresented minority” are. Thomas, in particular, has long expressed deep skepticism of affirmative-action policies. In Grutter, one of the two Michigan cases that Krislov was involved in, Thomas wrote an opinion arguing that efforts to create a diverse student body amount to no more than an aesthetic—a way for a school to achieve a certain look, “from the shape of the desks and tables in its classrooms to the color of the students sitting at them.” Affirmative action, he wrote, does “nothing for those too poor or uneducated to participate in elite higher education and therefore presents only an illusory solution to the challenges facing our Nation.” Many would disagree with Thomas’s view that affirmative action is simply an aesthetic undertaking, a virtue signal. But his point about the narrowness of the conversation—the relentless focus on “elite higher education”—raises a valid question: Why does everyone care so much about Harvard?
For the class of people who obsess over getting into the nation’s top colleges, admissions season feels intensely personal. Even extremely talented kids end up rejected or stuck on waiting lists, which can exacerbate the impression that they got this close to frolicking in Harvard Yard, until someone else took their spot. But it’s worth noting that only about four per cent of college students attend the extremely competitive schools where affirmative-action policies are most relevant. Most four-year institutions accept most of the students who apply.
Not too long after the 2006 ballot initiative, Marvin Krislov left Michigan to become the president of Oberlin College, in Ohio, and later took the same role at Pace University, in New York City—a school that is less than fifty per cent white and admits more than eighty per cent of its applicants. Working at a school that’s not hyper-focussed on élite admissions has not changed his belief in the importance of diversity. But his latest gig has changed his perspective. “I wouldn’t say that I’m running away from the notion that affirmative action can be an important tool for college admissions,” he said. These days, though, he spends more time thinking about everything that happens before kids apply to college, and how debates about diversity in higher education have obscured the many barriers that students face in getting to college in the first place. “The majority of Americans are not going to go to the University of Michigan or Harvard,” Krislov said. “And that’s just fine.” 
The Inherent Contradictions in the Affirmative-Action Debate
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