Trump’s Justices Didn’t Doom Affirmative Action. Demography Did.

If the Supreme Court rules this term that affirmative action is unconstitutional, relying on a case called Students for Fair Admissions v. Harvard, one response will be to chalk it up to the changed composition of the court. After Donald Trump added three justices, legal arguments that had repeatedly failed to convince justices over 45 years of constitutional wrangling suddenly fell on more sympathetic ears.

That view may be true in part. But it’s inadequate to describe why affirmative action is in danger. Affirmative action is on a shaky footing not just because the composition of the court has changed but also because the composition of the country has changed. Demography has caused the moral ground to fall out from under the policy.

Affirmative action dates from executive orders issued by Presidents John F. Kennedy and Lyndon Johnson in the 1960s. The policy was meant to help Black people at a time when the country was effectively biracial, with white people outnumbering Black people by a ratio of about seven to one.

Those facts were directly relevant to the logic of the policy. Giving a break to a few Black students might have meant denying a chance to the equivalent number of white students. But because white people constituted an overwhelming majority, the number of white applicants disadvantaged by affirmative action was relatively low. {snip}

That has changed. The arrival of large numbers of immigrants over the past half-century has upset the logic of affirmative action in several ways. For one thing, white Americans no longer dominate the educational system. (They make up only 22 percent of the Stanford class of 2026, for instance.) Early on, affirmative action was also extended to Latinos, whose numbers continue to grow. In addition, African and Caribbean immigrants and their children now account for more than 40 percent of the Black enrollment in the Ivy League, which risks crowding out the people that affirmative action was originally intended to help.

More than any other development, though, the enormous rise in Asian immigration since the Immigration and Nationality Act of 1965 has complicated the administration of affirmative action. The complication, simply put, is that Asian students, on average, have been considerably more qualified for college than students of other groups.

Students for Fair Admissions, the plaintiffs in one of two affirmative action cases before the Supreme Court, contend that Harvard’s affirmative action programs discriminate against Asian students. {snip}

Over the ensuing quarter-century, this increase more or less stalled. Harvard’s Asian enrollment remained at about 17 percent, year after year, while the percentage of Asians in the population of the United States roughly doubled, to 6 percent. By comparison, between 1990 and 2020 the Black percentage of the population increased slightly, the white percentage decreased, and the Hispanic percentage doubled {snip}

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Harvard did a number of things with Asian applicants differently from other applicants, including extending invitations to apply at a higher minimum combined SAT score than it did for Black, white and Hispanic students. A Black applicant in the seventh-highest academic decile of applicants had a better chance of being admitted to Harvard than did an Asian applicant in the highest decile.

One particularly suspicious race-based difference in the way Harvard treated its aspiring students involved a so-called personal rating. Harvard’s admission officers assigned to each applicant a numerical score for intangible traits, including leadership, self-confidence, likability and kindness. On these ratings, Asians scored far lower than any other racial group. {snip}

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