Dem
51
GOP
49
If you were surprised when you saw this news, you haven't been paying attention to the Supreme Court for the last, oh, 15 years or so. Yesterday, in a 6-3 decision (bet you can't guess which 6, and which 3!) in the case of the University of North Carolina, and 6-2 in the case of Harvard—Justice Ketanji Brown Jackson recused herself because she had been a member of Harvard’s board of overseers—the Court significantly curtailed the use of race as a factor in college admissions.
Obviously, "significantly curtailed" is not the same as "eliminated." The extremely verbose 237-page decision contains two exceptions to the general rule of "no consideration of race." The first of those is that the service academies are allowed to continue using race-based admissions, just as they were before yesterday's decision, because of the academies' "potentially distinct interests." We concede that we don't understand the motivation here, unless it's just "Anything the military does is automatically good."
The other exception is that while universities are no longer allowed to weight a student's race as a distinct factor, "nothing in this opinion should be construed as prohibiting universities from considering an applicant's discussion of how race affected his or her life, be it through discrimination, inspiration, or otherwise." What that means is that, for example, Harvard cannot decide that it's going to admit 100 Black students this year no matter what, but it can read a Black student's essay that talks about discrimination they have faced, and can use that as part of their admission decision.
Such essays are exactly why carve-out #2 was written into the decision. If admissions were required to be entirely color-blind, then it would be nearly impossible for universities to require essays, and it might possibly forestall letters of recommendation, too. Heck, it might even be necessary to keep the names off the applications. There's just no pragmatic way to keep the student's racial background completely out of the equation.
The responses of the politicians yesterday were entirely what you would expect. Let's start with Joe Biden, who was furious about the decision. "This is not a normal court," he said. "The truth is, we all know it, discrimination still exists in America ... today's decision does not change that." He said he would work with the Department of Education to develop new ways of incorporating diversity into admissions decisions.
And now let's turn to the Republicans, starting with Donald Trump:
This is a great day for America. People with extraordinary ability and everything else necessary for success, including future greatness for our country, are finally being rewarded. This is the ruling everyone was waiting and hoping for and the result was amazing. It will also keep us competitive with the rest of the world. Our greatest minds must be cherished and that's what this wonderful day has brought. We're going back to all merit-based—and that's the way it should be!
Good to see that the former president is such a fan of merit-based admissions. After all, his admission to Penn was undoubtedly 100% merit-based, right?
And now, Mike Pence:
I'm grateful to see that the conservative majority, that we helped build on the Supreme Court, bring an end to most of affirmative action. Look, we want to live in a color-blind society. And I will tell you—there may have been a time, 50 years ago, when we needed to affirmatively take steps to correct long-term racial bias in institutions of higher education. But, I can tell you, as the father of three college graduates, um, those days are long over. And I'm grateful today that the Supreme Court took us one step back to that America that will judge every man and woman on the content of their character and their own achievement, and leave race out of consideration for admission to institutions of higher learning.
We are not sure what causes us to roll our eyes harder, the notion that Pence had anything to do with seating those three conservative justices between 2017 and 2021, or that the whitest man in the country would presume to declare that we now live in a post-racial world.
And finally, one more, from Sen. Ted Cruz (R-TX):
Today, the Supreme Court upheld the 14th Amendment rights of Asian-Americans and ruled that Harvard and the University of North Carolina's explicit and egregious policies of racially discriminating against Asian-Americans and other students are unconstitutional.
We have two things to say here. First, either Cruz does not read the statements sent out under his name, or he does, and yet he—an alleged super genius—doesn't know that Asian American is unhyphenated when used as a noun, and hyphenated only when used as an adjective (i.e., "Asian Americans make up the majority of enrollees in Asian-American history courses."). Second, while we do not doubt that many Asian-American activists legitimately opposed Affirmative Action in admissions, anyone who thinks that Cruz or any other high-ranking Republican was motivated by their interest in justice for Asian Americans is fooling themselves. The Senator is fighting the culture wars on behalf of his white constituents, and is using Asian-American people as an excuse to make that socially acceptable.
Please note that our disdain for the Republican talking points does not mean that we are some sort of Affirmative Action fanatics. We are well aware that some number of highly qualified students are left on the outside because there are only so many spots available at desirable universities. We are similarly aware that Affirmative Action admissions sometimes subject students to academic challenges for which they are not fully prepared, leading to disproportionately high dropout rates. That said, when thinking of Affirmative Action, we often think of the observation about democracy used (but not originated) by Winston Churchill: "It is the worst form of Government except for all those other forms that have been tried." In other words, Affirmative Action is the worst solution to educational diversity, except for all the other solutions that have been tried.
In any case, as with Dobbs, a decision that is ostensibly the "final word" from the Supreme Court is going to be far from the final word, and one of these days this is going to end up right back in the Supremes' lap, in one form or another. To start, the Biden administration realized this day was coming, and he actually already had the Dept. of Education and other federal bureaucracies working on alternative ideas for how to promote diversity in education.
Further, the universities themselves have been known, on occasion, to employ some clever people. There are many ways to use admissions to promote diversity, even if race is not an explicit factor. For example, studies have shown that a student's family's net worth—information that universities already have, due to financial aid—is a pretty good indicator of whether the student comes from an underserved community. Looking at things like ZIP Codes, whether the applicant is a first-generation student and whether the applicant is a first-generation immigrant, also helps to create a diverse student body. It won't be as easy as it was before yesterday's ruling, and colleges will surely be less diverse overall, but SCOTUS' decision isn't going to completely upend things, either.
Meanwhile, civil rights groups are getting ready to take on a rather different form of affirmative action, namely legacy admissions. It's not a secret that the children and grandchildren of graduates, particularly at Ivy League universities, get preferential admissions treatment. It's also not a secret that this is primarily to keep alumni donations flowing. The civil rights activists argue that if minority students aren't allowed preferential treatment, nobody should be allowed preferential treatment. Assuming the Supreme Court takes the inevitable case, it will be interesting to see what, for example, Brett Kavanaugh (Yale Class of '87), grandson of Everett Edward Kavanaugh Sr. (Yale Class of '28), has to say about that.
On the other side of the equation, right-leaning legal activist groups are likely to seize on Thursday's victory in order to take the war to other fronts. For example, there are many laws and policies that were not designed to be discriminatory (or that were, but the people involved deny it). Often, the way these laws and policies are challenged in court is to ignore intent, and instead to demonstrate a racially disparate impact. Conservative legal groups are eager to put an end to that line of legal action.
Anyhow, that's the news out of the Supreme Court for the day. It's expected that they'll be announcing decisions on student loans and websites for gay weddings today, so that the justices can then hightail it out of Washington and let others pick up the pieces. (Z)