Next up on the Supreme Court's agenda: Affirmative action

(AP Photo/Jacquelyn Martin)

Progressives who are still reeling from the end of Roe v Wade are already expecting the worst from the Supreme Court’s next term which starts next week. One of the big issues the court will be considering in the next term is affirmative action in college admissions. Time published a primer yesterday.


The high court will hear two cases this term that could determine the constitutionality of race-conscious admissions policies—and the decision could fundamentally reshape higher education across America.

The high court will hear both cases on Oct. 31. The group Students for Fair Admissions, which says its mission is to help “restore colorblind principles to our nation’s schools, colleges and universities,” has brought both lawsuits, asking the court to preclude any consideration of race as a factor in admissions.

The first case, Students for Fair Admissions Inc. v. President & Fellows of Harvard College, alleges that Harvard’s race-conscious admissions policy discriminates against Asian American applicants, arguing that Asian Americans are significantly less likely to be admitted than similarly qualified Hispanic, Black, or white students. The plaintiffs argue Harvard’s policy violates Title VI of the federal Civil Rights Act, which bans racial discrimination in institutions that receive federal funding. Harvard responds that it does not discriminate against Asian American applicants, argues that the plaintiffs are citing misleading statistics, and contends that race-conscious admission policies are legal. Both the district court and the U.S. Court of Appeals for the 1st Circuit upheld Harvard’s admissions policy. (Jackson will recuse herself from the case, as she served on Harvard’s Board of Overseers.)

The second case, Students for Fair Admissions v. University of North Carolina, argues that UNC’s consideration of race in admissions not only violates Title VI, but also violates the Equal Protection Clause of the 14th Amendment, which extends to public universities. The plaintiffs argue UNC discriminates against white and Asian applicants by awarding “racial preferences” to Black, Hispanic, and Native American students because they are classified by the school as underrepresented minorities. UNC responds that its policies are lawful and are intended to build a diverse, holistic student body.


As with every contentious issue like this there are two sides to this issue who see things very differently. Last month, Ruth Marcus wrote an opinion piece for the Washington Post defending affirmative action. She argued that recent court decisions relying on our nation’s history should lead the court to uphold affirmative action.

In their recent rulings expanding gun rights and eliminating constitutional protection for abortion, the justices emphasized the importance of history — looking to the laws and practices in place at the time the relevant constitutional provision was enacted to determine its original meaning.

“The inescapable conclusion is that a right to abortion is not deeply rooted in the Nation’s history and traditions,” Justice Samuel A. Alito Jr. wrote in Dobbs v. Jackson Women’s Health Organization, which overturned Roe. “Only if a firearm regulation is consistent with this Nation’s historical tradition” can it be justified under the Second Amendment, Justice Clarence Thomas wrote in striking down a New York state law limiting concealed carry permits…

So, what does history have to tell the justices? The briefs make a powerful case that the shorthand view of the 14th Amendment as strictly “colorblind” ignores the context of the time in which it was written — in the aftermath of the Civil War — and the willingness of its authors to approve “race-conscious remedies” for discrimination that are anathema to the current conservative majority.

“Absolute neutrality” when it comes to race “has never been a universal constitutional principle, either at the time of ratification or in the Court’s jurisprudence,” Harvard argues in its brief filed last month. “The Congress that adopted the Fourteenth Amendment … authorized numerous measures that benefited African Americans in the aftermath of the Civil War. Against that backdrop, this Court’s far narrower holdings permitting consideration of race as one factor in an individualized decision are readily permissible.”


But last week, John McWhorter wrote an opinion piece for the NY Times arguing just the opposite. Titled, “Stop Making Asian Americans Pay the Price for Campus Diversity” McWhorter pointed to the history of diversity efforts in college admissions to argue for ending affirmative action.

In the early 20th century, “character”-based goals emerged among some Ivy League schools. One such goal was “geographic” diversity. This was held up as a boon to student bodies but motivated largely by an assumption that admitting students from schools far from northeastern cities would serve to hold down the number of Jewish applicants accepted.

This was one of an array of shifty strategies that some Ivies started using. The fine podcast “Gatecrashers,” produced by Tablet Studios, covers more of them in detail. Admissions processes that were once relatively undemanding were loaded up with questions about parental origins as well as the requirement that one include a photo, all intended to screen for Jewishness. The college interview, now ordinary for the Ivies, began as part of the same screening strategy. In 1928, Columbia University — located, of course, in Manhattan — established a special Brooklyn branch called Seth Low Junior College, intended to maintain a separate locus for Jewish students…

Of course, no one explicitly says Harvard has too many Asians, but the parallel between old-school justifications for keeping a student body from being too Jewish and a process that keeps it from being too Asian are discomfiting.


McWhorter believes there is room for a “social justice” approach to admissions but that it should be based on economic factors. So middle-class and upper class black students or Hispanic students would get no preference over similarly places white or Asian students. But students from lower class backgrounds would still get an additional look on the grounds that their upbringing may not have afforded them all of the same opportunities to excel that the upper class students had.

Racial preferences should now be thought of like chemotherapy, a cure that can cause side effects that should be applied judiciously. We’ve applied the cure long past that point, and have drifted toward an almost liturgical conception of diversity that makes less sense by the year.

In 2003, Justice Sandra Day O’Connor predicted that the need for affirmative action for university admissions “will no longer be necessary.” It has been 19 years since she said it. McWhorter concludes, “Folks, it’s time.” I think he’s right about that. Hopefully in a few more weeks we’ll have some inkling of how the Justices responded to oral arguments in these two cases.

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