“Killing affirmative action will have a devastating impact on Black, Hispanic, and Native students,” wrote one journalist, “and such a ruling would be totally unjustified by the text or history of the Constitution.”
During the course of roughly five hours of oral argument on Monday, the U.S. Supreme Court’s far-right supermajority seemed open to rolling back decades of precedent allowing public and private colleges and universities to make race-conscious admissions decisions.
Referring to Students for Fair Admissions v. President and Fellows of Harvard and Students for Fair Admissions v. University of North Carolina—cases he contends were “manufactured to abolish affirmative action in higher education”—Slate‘s Mark Joseph Stern argued that “all six conservative justices are poised to declare that colleges’ consideration of race violates the Constitution’s equal protection clause and the Civil Rights Act of 1964, which applies equal protection standards to private institutions.”
“Because that argument was cynically engineered by white conservatives aggrieved by ‘reverse racism‘—and is so clearly at odds with an original understanding of the 14th Amendment—progressives have lined up to defend Harvard and UNC,” Stern noted, citing “the amicus briefs filed in support of the universities by seemingly every liberal group under the sun.”
Late last week, ReNika Moore, director of ACLU’s Racial Justice program, said in a statement: “Race-conscious admissions practices help create a diverse student body that benefits the educational experiences of all students. Time and again, lower courts and the Supreme Court have recognized universities’ ability to consider race in the admissions process in order to help foster this.”
Civil rights attorney Sherrilyn Ifill, former president of the NAACP’s Legal Defense Fund, also alluded to the high court’s previous decisions upholding race-conscious college admissions, adding that new challenges keep cropping up because “opponents to affirmative action know they have an open door to continue to try and overturn it.”
It’s cynical. W/o Justice Kennedy (and now Breyer) opponents to affirmative action feel they have a clear path. But even if Kennedy were still on the Court they would have brought this challenge. With their new strategy of using Asian Americans as a wedge, they couldn’t resist.
— Sherrilyn Ifill (@SIfill_) October 31, 2022
Although the court is not scheduled to hand down an opinion in the pair of cases until next summer, its right-wing justices on Monday questioned the legitimacy of race-conscious admissions, expressing doubt that schools would ever concede an “endpoint” in their consideration of race to build more diverse student bodies.
“The question,” according to The Washington Post, “is how broad such a decision by the court’s conservative majority might be, and what it would mean for other institutions of higher education.”
“Overturning the court’s precedents that race can be one factor of many in making admission decisions would have ‘profound consequences’ for ‘the nation that we are and the nation that we aspire to be,’ Solicitor General Elizabeth B. Prelogar told the justices during arguments in the Harvard case,” the Post reported.
“But the court’s conservatives used the two cases to revisit decades of Supreme Court decisions that tolerated a limited use of racial classifications,” noted the newspaper. “They seemed unsatisfied with assertions from lawyers representing the schools that the end was near for the use of race-conscious policies. Under repeated questioning, the lawyers conceded they could not provide a date-specific answer to the question: ‘When will it end?'”
Notably, as The New York Times pointed out Sunday, both sides in the debate claim to be upholding the legacy of Brown v. Board of Education, the unanimous 1954 ruling that found racial segregation in public education to be unconstitutional. While proponents of affirmative action argue that assembling diverse student bodies is consistent with the civil rights landmark, opponents insist that the decision requires “colorblind” policies.
For instance, Edward Blum, the founder of Students for Fair Admissions, the anti-affirmative action group behind both cases, told NPR on Monday that “the Constitution and our civil rights laws forbid the consideration of race in higher education.”
As Vanity Fair‘s Eric Lutz wrote Monday: “That is not what previous courts have ruled. Since Regents, Grutter, and the 2016 Fisher v. University of Texas decision, the high court has generally upheld universities’ race-conscious admissions policies. But this court, with its 6-3 conservative supermajority, has shown little reverence for long-standing precedent—it did away with 50 years of settled law in overturning Roe over the summer—and seems poised to obliterate this one, too.”
Justice Clarence Thomas—a beneficiary of affirmative action who has long opposed the policy on the grounds that it is discriminatory—on Monday questioned the meaning and “educational benefits of diversity.”
In response to Thomas’ inquiry about the original meaning of the 14th Amendment, “the lawyer who wants to abolish affirmative action said that the Civil Rights Act of 1866, which was the foundation for the amendment, was race-neutral,” tweeted journalist Cristian Farias.
Farias shared a recent interview he conducted with Eric Foner, in which the esteemed historian of Reconstruction denounced originalism as “intellectually indefensible.”
“Colorblindness is not the only original meaning of the 14th Amendment,” said Foner. “It was the original meaning in the eyes of some people, but not a lot of others.”
In response to Clarence Thomas, who asked about the original meaning of the 14th Amendment, the lawyer who wants to abolish affirmative action said that the Civil Rights Act of 1866, which was the foundation for the amendment, was race-neutral.
— Cristian Farias (@cristianafarias) October 31, 2022
In his Monday essay, Stern argued that “killing affirmative action will have a devastating impact on Black, Hispanic, and Native students and such a ruling would be totally unjustified by the text or history of the Constitution.”
“But it doesn’t follow that the schools in this case use race-conscious admissions for exclusively noble purposes,” he wrote, adding:
Instead, elite institutions often use these programs as a Band-Aid to cover deeper structural barriers to genuine diversity among their student bodies—because addressing those problems would require sacrifices that administrators aren’t willing to make. A Supreme Court decision outlawing affirmative action will become a scapegoat for universities that see a plunge in enrollment among underrepresented minorities. Progressives should not let them get away with it.
Although the latest legal assault on affirmative action is built on bad history and worse motivations, it did have the benefit of revealing unseemly details about the elite admissions process. The litigation gave the public an unprecedented glimpse into Harvard’s standards, which reflect horribly on the school. As Aaron Mak explained in Slate after the trial, Harvard has a preference for four specific groups of applicants known as ALDC: athletes, legacies, those on the dean’s list (frequently because of family donations), and the children of faculty. ALDCs constitute about 5% of applicants but 30% of the admitted class. Their admissions rate sits at about 45% compared to the normal rate of less than 5%.
In theory, ALDC preferences are colorblind. In practice, they operate as a massive affirmative action program for white applicants. Over a recent six-year period, 2,200 out of 4,993 admitted white students were ALDC—a figure significantly higher than the overall number of admitted students who are Black (1,392) and Hispanic (1,283). White ALDC students are not overrepresented because they happen to be more qualified; to the contrary, about three-fourths of them would have been rejected without the ALDC boost.
“Elite universities’ first response” to the high court’s expected elimination of race-conscious admissions in higher education, Stern tweeted, “should be abolishing their affirmative action programs for ultra-privileged white kids.”
National Education Association president Becky Pringle said Monday in a statement that “recent events demonstrate that racism and discrimination are not artifacts of American history but persist in every aspect of our society, including our schools, colleges, and universities.”
“Affirmative action and programs like it safeguard a stronger future by expanding higher education opportunities to those who have been historically denied a fair shot,” said Pringle. “When we ensure the many talents and experiences of students of color aren’t overlooked in admissions processes that tend to be biased against them, we create schools, a country, and a future that includes us all. We urge the court to uphold affirmative action in higher education admissions decisions.”