Why Is Affirmative Action in Peril? One Man’s Decision.

When it comes to affirmative action on highly selective campuses, a common critique among both liberals and conservatives is that schools have made a bargain with economic elites of all races, with the exception of Asian Americans, who are underrepresented compared with their level of academic achievement. In the Ivy League, children whose parents are in the top 1 percent of the income distribution are 77 times as likely to attend as those whose parents are in the bottom 20 percent of the income bracket. At the same time, the lower-income students who do attend have a much higher chance of reaching the top of the earnings distribution than those at a public university, according to a 2020 study of 30 million college graduates, led by the economists Raj Chetty at Harvard and John N. Friedman at Brown. In other words, top universities are a powerful source of social mobility that goes woefully undertapped.

In 1978, Marshall and Brennan wrestled with the relationship between race, class and opportunity. In an early draft of his opinion in Bakke, Brennan declared that an affirmative-action program could not “simply equate minority status with disadvantage.” U.C. Davis, Brennan explained, considered economic need (with factors like whether students had to work through college) in deciding which Black, Latino or Asian American students to specially admit to medical school.

But Brennan felt conflicted. He asked Marshall whether he thought his own son, applying to college, should benefit from affirmative action. “Damn right,” Marshall answered, according to Brennan’s account. “They owe us.” In the end, Brennan cut the reference to economic disadvantage from his opinion.

Over the years, the Black middle class has grown even as the gap in wealth among different racial groups remains large. In other words, something, though far from everything, has changed. When Barack Obama campaigned for the Democratic nomination for president in 2008, he said that his daughters should not benefit from affirmative action and that it should be crafted so that “some of our children who are advantaged aren’t getting more favorable treatment than a poor white kid who has struggled more.”

Sheryll Cashin, the Georgetown law professor who clerked for Marshall, wrote a book in 2014 called “Place Not Race,” which called for using the level of poverty in a school or neighborhood as a basis for affirmative action. The record in the Harvard case shows that 55 percent of Black and Latino students get in without any race-based boost. Most are affluent (as is the case at many elite schools). “I am very clear that the Constitution doesn’t require colorblindness,” she says. “I wrote my book because I was frustrated that affirmative action wasn’t doing enough for people who needed help the most.”

In the 2003 ruling upholding affirmative action, O’Connor said the court expected the policy to last no more than 25 years. At the oral arguments last October, the emboldened conservative majority seemed ready to rule that time is up, five years early. They didn’t necessarily seem united, though, about what comes next.

The conservative majority could rule that the diversity rationale is simply wrong, as the plaintiffs, S.F.F.A., argue. Or they could accept that diversity has educational benefits, at least for the sake of argument, but say that schools like Harvard and U.N.C. can no longer achieve it by using race-based preferences. The court could tell universities that they may instead factor in where applicants live or go to school, or how they’ve overcome adversity, or how much money their families have. These factors would apply to students of all races, much as they do at public universities in states that ban affirmative action, like Texas and California. (The court could base its ruling on its interpretation of the 14th Amendment or its interpretation of Title VI of the Civil Rights Act.)