On the surface, the 6-3 decision of the Supreme Court prohibiting race as a factor in college admissions was about legal fairness, throwing out affirmative action policies in use at Harvard and the University of North Carolina.
On another level, it was a statement about the discussion of race itself in the United States and the insistence of this right-leaning Supreme Court majority to insulate itself from reality.
It’s a blockbuster decision on all counts since the majority once again has overturned precedents towards a conclusion that feels outwardly political; the conclusions were supported by right-leaning justices and opposed by its liberal wing. At the same time, it is an assertion of rules for a race-blind world that just does not exist in any real-world overlay that we can see and inhabit.
In twin decisions, the court disowned repeated decisions upholding admissions programs, saying that race could be used as one factor among many in evaluating applicants.
As with decisions on abortion, guns or religion, the court’s decisions have made clear that neither popularity nor real-world ramifications have any place in its thinking.
And, as with those decisions, the decision was picked up for praise or attack from politicians who found reasons to link the outcome to their own points of view.
The court decision said UNC discriminated against white and Asian applicants by giving preference to Black, Hispanic, and Native American applicants despite university arguments that its policies fostered educational diversity and were lawful under longstanding Supreme Court precedents. In the Harvard case, the court found that the university also discriminated against Asian American applicants by using a subjective standard to gauge traits like likability, courage, and kindness, and by effectively creating a ceiling for them in admissions.
The arguments in the case are long, involved, but fashioned to support a view of constitutional fairness, not societal fairness.
“The student must be treated based on his or her experiences as an individual — not on the basis of race,” Chief Justice John G. Roberts Jr. wrote. “Many universities have for too long done just the opposite. And in doing so, they have concluded, wrongly, that the touchstone of an individual’s identity is not challenges bested, skills built, or lessons learned but the color of their skin. Our constitutional history does not tolerate that choice.”
In dissent, Justice Sonia Sotomayor wrote that it is “a disturbing feature of today’s decision that the Court does not even attempt to make the extraordinary showing required” to reverse precedent. She said her own life is an example of how affirmative action programs can work, writing, “Equal educational opportunity is a prerequisite to achieving racial equality in our Nation.”
Justice Ketanji Brown Jackson, who as a Harvard board member recused herself from the Harvard decision, noted that, “With let-them-eat-cake obliviousness, today, the majority pulls the ripcord and announces ‘colorblindness for all’ by legal fiat. But deeming race irrelevant in law does not make it so in life.
In New York City, a similar dust-up about admissions to the city’s top academic high schools resulted in removing diversity concerns for policies based solely on test scores. The incoming class at Stuyvesant High School is about 750 of 30,000 applicants. Of the total, there are 8 Black students, 450 Asian Americans and 150 whites.
There are similar numbers at UCLA and other University of California campuses after race was removed as an admission factor. The same will hold for Harvard, UNC and other universities that hold like policies.
The questions here won’t quit.
For the court to dismiss any means for higher education institutions to attempt to attract a diverse campus population is to deny realism — on campuses and beyond.
It is without doubt, backed by oodles of studies for example, that having a diverse set of students provides a far richer campus experience for student learning. It is also beyond doubt that removal of race in the admission process will have result in an actual racial shift of student bodies, making them more homogenous.
By this logic, these universities, which have multiple times the number of applications as they do space in their admission class, may as well just accept the first students who show up. There is nothing in this ruling about bias shown to legacy students whose families have been graduated from the institution or outreach by sports teams or any attempt to balance state students with national students or international students.
As a practical matter, we can expect that universities will look at activities, essays or associations that might serve as substitutes for identity, or that students will go out of their way to try to show uniqueness.
For the court to insist on “merit” as a sole admission standard is to overlook the obvious truth that there is no single measure of merit. The same universities, for example, are moving away from SAT or other standardized test results as the result of recognizing that test scores reflect more about race and class than they do the ability to complete a college major sequence.
The evident bias of justices ruling in constitutional isolation also means that there is no recognition that the graduates of these higher education institutions emerge as our leaders in business, government, universities and, yes, judgeships.
If the justices want totally color-blind college admission, it should insist on color-blindness in housing, employment and advancement, health, income, marriage, and dozens of other measures of how we live. Indeed, in every one of those ways of looking at the United States, there are continuing, demonstrable gaps relating to race, class, and identity.
The Broader Picture
Or course, as a non-legal matter, Americans don’t want quotas; the term reflects a desire to set caps and limits. And we want to believe that students – or employees – “earn” their way to acceptance.
But the reason we needed to have affirmative action programs is because our systems did and continue to enforce quotas through social conditions that leave some college applicants or employee applicants more prepared to compete. All students do not have equal access to college test prep or to the best preparatory schools and programs; all students lack equal access to housing in the most popular suburb.
Does this court majority against affirmative action really believe that the experience at urban high schools and more affluent suburbs are the same – or, for that matter, that housing, health, transportation, and incomes are the same?
At the newsrooms where I worked, we, like Harvard, had many more fully skilled applicants for reporting and editing jobs than we did openings. We also recognized that, to do our job of holding up a mirror to our society, there continues to be “a compelling interest,” in the words of former Justice Sandra Day O’Connor in writing the original affirmative action decision, for a diverse work force to cover a nation of diversity. That has meant seeking reporters and editors who reflect different life experiences of all kinds, a work very much still in progress.
There is nothing in the reasoning of these two university decisions from triggering court challenges of employment, health, housing policies in place at other institutions. As with abortion, the ramifications of yesterday’s decisions will play out in dozens of uncharted ways and an avalanche of future lawsuits.