Supreme Court Declares Harvard’s and UNC’s Affirmative Action Programs Unconstitutional
“Harvard’s and UNC’s admissions programs violate the Equal Protection Clause of the Fourteenth Amendment,” the U.S. Supreme Court declared in a ruling today.
The New York Times reports:
Chief Justice John G. Roberts Jr., writing for the 6-3 majority, said the two programs “unavoidably employ race in a negative manner” and “involve racial stereotyping,” in a manner that violates the Constitution. However, he added, universities can consider how race has affected an applicant’s life. Students, he wrote, “must be treated based on his or her experiences as an individual — not on the basis of race.”
Citing the 2003 case of Grutter v. Bollinger, and referencing Justice Powell’s decision in the 1978 case of Regents of the University of California v. Bakke, Roberts wrote:
The Grutter majority’s analysis tracked Justice Powell’s in many respects, including its insistence on limits on how universities may consider race in their admissions programs. Those limits, Grutter explained, were intended to guard against two dangers that all race-based government action portends. The first is the risk that the use of race will devolve into “illegitimate . . . stereotyp[ing].” Richmond v. J. A. Croson Co., 488 U. S. 469, 493 (plurality opinion). Admissions programs could thus not operate on the “belief that minority students always (or even consistently) express some characteristic minority viewpoint on any issue.” Grutter, 539 U. S., at 333 (internal quotation marks omitted). The second risk is that race would be used not as a plus, but as a negative—to discriminate against those racial groups that were not the beneficiaries of the race-based preference. A university’s use of race, accordingly, could not occur in a manner that “unduly harm[ed] nonminority applicants.” Id., at 341.
To manage these concerns, Grutter imposed one final limit on racebased admissions programs: At some point, the Court held, they must end. Id., at 342. Recognizing that “[e]nshrining a permanent justification for racial preferences would offend” the Constitution’s unambiguous guarantee of equal protection, the Court expressed its expectation that, in 25 years, “the use of racial preferences will no longer be necessary to further the interest approved today.” Id., at 343. Pp. 19– 21.
(e) Twenty years have passed since Grutter, with no end to racebased college admissions in sight. But the Court has permitted racebased college admissions only within the confines of narrow restrictions: such admissions programs must comply with strict scrutiny, may never use race as a stereotype or negative, and must—at some point—end. Respondents’ admissions systems fail each of these criteria and must therefore be invalidated under the Equal Protection Clause of the Fourteenth Amendment. Pp. 21–34.
(1) Respondents fail to operate their race-based admissions programs in a manner that is “sufficiently measurable to permit judicial [review]” under the rubric of strict scrutiny. Fisher v. University of Tex. at Austin, 579 U. S. 365, 381. First, the interests that respondents view as compelling cannot be subjected to meaningful judicial review. Those interests include training future leaders, acquiring new knowledge based on diverse outlooks, promoting a robust marketplace of ideas, and preparing engaged and productive citizens. While these are commendable goals, they are not sufficiently coherent for purposes of strict scrutiny. It is unclear how courts are supposed to measure any of these goals, or if they could, to know when they have been reached so that racial preferences can end. The elusiveness of respondents’ asserted goals is further illustrated by comparing them to recognized compelling interests. For example, courts can discern whether the temporary racial segregation of inmates will prevent harm to those in the prison, see Johnson v. California, 543 U. S. 499, 512–513, but the question whether a particular mix of minority students produces “engaged and productive citizens” or effectively “train[s] future leaders” is standardless.
Second, respondents’ admissions programs fail to articulate a meaningful connection between the means they employ and the goals they pursue. To achieve the educational benefits of diversity, respondents measure the racial composition of their classes using racial categories that are plainly overbroad (expressing, for example, no concern whether South Asian or East Asian students are adequately represented as “Asian”); arbitrary or undefined (the use of the category “Hispanic”); or underinclusive (no category at all for Middle Eastern students). The unclear connection between the goals that respondents seek and the means they employ preclude courts from meaningfully scrutinizing respondents’ admissions programs.
The universities’ main response to these criticisms is “trust us.” They assert that universities are owed deference when using race to benefit some applicants but not others. While this Court has recognized a “tradition of giving a degree of deference to a university’s academic decisions,” it has made clear that deference must exist “within constitutionally prescribed limits.” Grutter, 539 U. S., at 328. Respondents have failed to present an exceedingly persuasive justification for separating students on the basis of race that is measurable and concrete enough to permit judicial review, as the Equal Protection Clause requires. Pp. 22–26.
(2) Respondents’ race-based admissions systems also fail to comply with the Equal Protection Clause’s twin commands that race may never be used as a “negative” and that it may not operate as a stereotype. The First Circuit found that Harvard’s consideration of race has resulted in fewer admissions of Asian-American students. Respondents’ assertion that race is never a negative factor in their admissions programs cannot withstand scrutiny. College admissions are zerosum, and a benefit provided to some applicants but not to others necessarily advantages the former at the expense of the latter.
Respondents admissions programs are infirm for a second reason as well: They require stereotyping—the very thing Grutter foreswore. When a university admits students “on the basis of race, it engages in the offensive and demeaning assumption that [students] of a particular race, because of their race, think alike.” Miller v. Johnson, 515 U. S. 900, 911–912. Such stereotyping is contrary to the “core purpose” of the Equal Protection Clause. Palmore, 466 U. S., at 432. Pp. 26– 29.
(3) Respondents’ admissions programs also lack a “logical end point” as Grutter required. 539 U. S., at 342. Respondents suggest that the end of race-based admissions programs will occur once meaningful representation and diversity are achieved on college campuses. Such measures of success amount to little more than comparing the racial breakdown of the incoming class and comparing it to some other metric, such as the racial makeup of the previous incoming class or the population in general, to see whether some proportional goal has been reached. The problem with this approach is well established: “[O]utright racial balancing” is “patently unconstitutional.” Fisher, 570 U. S., at 311. Respondents’ second proffered end point—when students receive the educational benefits of diversity—fares no better. As explained, it is unclear how a court is supposed to determine if or when such goals would be adequately met. Third, respondents suggest the 25-year expectation in Grutter means that race-based preferences must be allowed to continue until at least 2028. The Court’s statement in Grutter, however, reflected only that Court’s expectation that racebased preferences would, by 2028, be unnecessary in the context of racial diversity on college campuses. Finally, respondents argue that the frequent reviews they conduct to determine whether racial preferences are still necessary obviates the need for an end point. But Grutter never suggested that periodic review can make unconstitutional conduct constitutional. Pp. 29–34.
(f) Because Harvard’s and UNC’s admissions programs lack sufficiently focused and measurable objectives warranting the use of race, unavoidably employ race in a negative manner, involve racial stereotyping, and lack meaningful end points, those admissions programs cannot be reconciled with the guarantees of the Equal Protection Clause. At the same time, nothing prohibits universities from considering an applicant’s discussion of how race affected the applicant’s life, so long as that discussion is concretely tied to a quality of character or unique ability that the particular applicant can contribute to the university. Many universities have for too long wrongly concluded that the touchstone of an individual’s identity is not challenges bested, skills built, or lessons learned, but the color of their skin. This Nation’s constitutional history does not tolerate that choice.
In her dissent, which Justices Kagan and Jackson joined, Justice Sotomayor writes:
Although progress has been slow and imperfect, race-conscious college admissions policies have advanced the Constitution’s guarantee of equality and have promoted Brown’s vision of a Nation with more inclusive schools. Today, this Court stands in the way and rolls back decades of precedent and momentous progress. It holds that race can no longer be used in a limited way in college admissions to achieve such critical benefits. In so holding, the Court cements a superficial rule of colorblindness as a constitutional principle in an endemically segregated society where race has always mattered and continues to matter. The Court subverts the constitutional guarantee of equal protection by further entrenching racial inequality in education, the very foundation of our democratic government and pluralistic society. Because the Court’s opinion is not grounded in law or fact and contravenes the vision of equality embodied in the Fourteenth Amendment, I dissent.
The whole decision is here. It is expected to affect educational admissions policies and practices across the country.
This is pretty clearly the right decision when you’re looking at the law as written, but whether the law should be written in this way is a different question.
The practical reality is that it probably won’t impact admission decisions much (if at all) at any of these schools. “…nothing prohibits universities from considering an applicant’s discussion of how race affected the applicant’s life, so long as that discussion is concretely tied to a quality of character or unique ability that the particular applicant can contribute to the university.”
I don’t think it’s just trivial to use essays and other things to put the existing regime back in place, mainly because there is a problem of coordination. While it’s possible to give some boost to students on the basis of race indirectly through essays etc, it will be a lot harder to do what Harvard currently does, which is ensure that e.g. black students are between 10 and 12 percent of the incoming class. Evidently Harvard literally begins meetings at a certain phase with a discussion of “how the breakdown of the class compares to the prior year in terms of racial identities.” If that discussion is illegal to have (which I’m pretty sure it now is?), you are going to have a harder time getting the number you want. Once you have enough people involved, it’s pretty hard to get their behavior to coordinate on the same outcome if it’s illegal to tell them the outcome you’re looking for.
Of course universities could continue to break the law, but then maybe you could have said the same thing when the Civil Rights Act was passed (e.g. saying employers would just continue to discriminate via proxies), and nonetheless that did have an impact.
“you are going to have a harder time getting the number you want” – this seems to encapsulate the problem with AA. It’s not about individuals and making sure they are treated fairly, it’s about administrators succeeding or failing in their game of statistics.
It’s probably true that university administrators pursue diversity quotas like any other metric, namely in the cold spirit of cost-benefit analysis. But that is an objection to the way in which administrators think about value in general, rather than to affirmative action itself. Ideally, administrators would seek to diversify their campus out of an intrinsic concern for doing justice to disadvantaged groups and for promoting diversity. AA clearly can be pursued in that spirit.
I would also note that administrators need not diversify their campuses from generous motives for their actions to have the effect of promoting the goal of social justice in which the government rightly has a keen interest. On this line of thinking–who cares if administrators act like cold economic maximizers so long as they help make the country a better place? Personally I find this thought to be a powerful one. Of course, you might say that AA will not achieve its goals if administrators are not committed to these goals in an authentic way, but I think that reply is overly cynical. Many campuses seem to genuinely and non-instrumentally value the goals of AA.
One of the issues here is the definition of “diversity.” The undergraduate student bodies at elite univs., including, I think, the two directly involved in this case, have some racial diversity but less socio-economic diversity. (There’s some of the latter, but if you look at the figures, not very much.)
Nothing in the Sup Ct majority opinion rules out “class-conscious” — as opposed to (a particular form) of “race-conscious” — admissions. One reason elite univs. have resisted more of a focus on socio-economic diversity is that it’s more difficult to achieve: it requires more outreach, more time, more effort, more attempts to find applicants from sub-standard schools and poor neighborhoods who have beaten the odds and shown themselves capable of doing academic work at the required level — and then persuading them to apply and supporting them properly when they arrive.
In the wake of this decision, an increased focus on socio-economic diversity in admissions may be the best way for univs. both to comply with the decision and to try to ensure that their classes remain diverse in various ways.
”Ideally, administrators would seek to diversify their campus out of an intrinsic concern for doing justice to disadvantaged groups and for promoting diversity.”
I absolutely cannot understand this unspoken assumption that diversity implies social justice, whereas lack of diversity implies the lack of social justice.
Harvard, for many years, ran its admission programs in such a way that Asian American applicants with certain educational achievements had less chance of being admitted than African American applicants with significantly lower educational achievements. There is nothing just about that.
Diversity is cherished in Liberal education to the extent that it is related to or represents, in the main, respect for de facto and de jure pluralism as realized and expressed in various communities (ethnic and otherwise), traditions, worldviews (individuated more or less as ‘lifeworlds’), lifestyles, and so forth (what Rawls calls, somewhat misleadingly, ‘comprehensive doctrines’) which are the primary source of both individual and collective identities (for a Liberal negotiation and accommodation of these identities in a way that can make space for moral psychological autonomy, public goods, and the democratic pursuit of individual and collective welfare and well-being—if not human fulfillment and eudaimonia or happiness—please see Kwame Anthony Appiah’s The Ethics of Identity [Princeton University Press, 2005]; a different but no less interesting and provocative approach to such matters is also found in the late David L. Norton’s Democracy and Moral Development: A Politics of Virtue [University of California Press, 1991]), which attempts to couple eudaimonistic individualism with democratic equality by nurturing moral and political autonomy within the ‘right’ forms of community and tradition).
The facts and conditions of this kind of pluralism for which the term “diversity” is a synonym, are increasingly found in contemporary democratic (or would-be democratic) polities, the U.S. being but one exemplar of these pluralistic conditions, and the principle of secularism serving at once as an acknowledgement of this pluralism and a means whereby minimal conditions for democratic toleration are encouraged and eventually established. A liberal democratic polity committed to social justice seeks to respect if not value differences of many kinds insofar as these represent the myriad voices and perspectives that arise from same, albeit within the constraints and enabling conditions of equal liberties, which includes respect for individual moral and political autonomy. To the extent that we value preferences, especially reflective preferences in a democratic polity, our participatory, deliberative, and representative processes and methods should be crafted within the philosophical and political framework of Liberalism (which includes, after Rawls, a conception of justice) in the broadest sense so as to be inclusive, that is, so as to acknowledge the principal forms of diversity and accord, minimally speaking, both representative and electoral respect for these preferences (see here, for example, Will Kymlicka’s Multicultural Citizenship [Oxford University Press, 1995] and Iris Marion Young’s Inclusion and Democracy [Oxford University Press, 2020]).
Rawls’s theorizing about the need for and real possibility of an “overlapping consensus” with regard to a Liberal conception of justice can be seen as historically descriptive of progress on these fronts in the U.S., but it is also of course normatively aspirational inasmuch as equal liberties and representation remain elusive and unfulfilled, and unjustifiably and inexcusably so given a Constitutional commitment to the values and principles of democratic Liberalism and the means, methods, and processes of participatory, deliberative and representative democracy. On this account, the desire or wish for, and the goal or the ends of diversity are intrinsically tied to the aims of social justice and thus this is not an “unspoken assumption” but rather a reasonable and urgent oft-acknowledged presumption or premise in the larger argument on behalf of Liberal democracy and the practical pursuit of same in public life. As one of our foremost political philosophers and theorists, Robert E. Goodin has argued,
“Cultural institutions and policies matter. Harriet Beecher Stowe’s Uncle Tom’s Cabin famously helped people imagine what it might be like to be a slave, thus fueling the Abolitionist movement, and E.M. Forester’s Passage to India likewise helped Britons imagine what it might be like to be a colonial subject, encouraging sympathy for the demands for colonization. [Consider now, for better and worse, the power of mass and social media today on similar if not related subjects.]Policies [like ‘affirmative action’] and institutions that facilitate social mixing—having people whose social circumstance are radically unlike your own nearby, going to school with you or your children, riding public transportation alongside you—can again serve as an aid to the political imaginary. It is inevitable easier to project yourself into their place [hence empathy and perhaps sympathy and compassion as well] if you observe them at close quarters over a protracted period, and that might be true even if you little more than what you observer through causal interactions.Consultative procedures, even of an apparently toothless sort, could also actually have far more democratic bit than we might ordinarily suppose. Members of communities which are obliged to read other people’s submissions, even if the members of those committees are empowered then to ignore those submissions, might find themselves ‘putting themselves in the place of the other’ and being more responsive to the petitioner’s concern than we might expect from the power relations inscribed in those rules of procedure.”
To be sure, those most likely to benefit (and rightly so) from affirmative action policies in higher education, especially in the so-called elite private universities are not, typically, among those muted voices we find among the “socially excluded” within our societies: the homeless, many immigrants, those afflicted with the more severe or debilitating forms of mental illness, the incarcerated, the infirm elderly, and the indigent more generally. They are officially denied a vote/voice, “[a]nd even when they are formally enfranchised, the socially excluded typically lack the social wherewithal to give effective voice to their concerns.” Please see Robert E. Goodin’s Reflective Democracy (Oxford University Press, 2003), best read, I think, in conjunction with his later book, Innovating Democracy: Democratic Theory and Practice After the Deliberative Turn (Oxford University Press, 2008).
If we value our commitment to a truly democratic politics, which is “essentially a matter of coordinating people’s actions,” we will take heed to draw upon admittedly if only because unavoidably imperfect programs and policies (which are often open to correction or fine-tuning in light of conspicuous problems and well-intentioned critiques) like affirmative action so as to democratically aggregate and “blend” the “diverse beliefs and desires or values into collective decisions for [either direct or indirect] joint action.” This is but one facet of Liberal social justice or Rawlsian (or Rawlsian-like) justice as fairness.
The editing for the three bullet points (at Culture, Policies, and Consultative) from Goodin did not take and the last one should be the end of that quoted paragraph.
I’m not convinced.
Sure, pluralism in a society is good. And pluralism in a society does help perfect its democratic nature.
But, the key thing is – different groups need to have equal rights and equal opportunities, up to a reasonable degree.
Enrolling people to an elite college just because of their race (so to achieve diversity) and rejecting people who are, by objective standards, better than those enrolled, is something much stronger than giving everyone equal rights.
The main purpose of college is not to achieve diversity, it is to educate people. Its admission criteria should reflect that – the criteria should be academic, and not demographic.
Affirmative action, understood the way Harvard understood it, is the exact opposite of justice as fairness.
I would simply say that there is not much that is objective about the data you seem to suggest. On the broadest of scales, perhaps high school grades, academic activities, and standardized test scores do indicate collegiate success. But that does not mean that such data is predictive of talent or intelligence. Rather it is predictive of prestige hunting parents and students, sometimes very strict upbringing in academics, a willingness/ability to relocate for high school reputation, hours and hours of extra tutoring and test prep, and so forth.
I have, regrettably, years of working in the test prep industry under my belt and have seen a great deal of all of this. It’s very much about grinding to produce the putatively objective data that will–if not guarantee– certainly increase the chances of acceptance at elite institutions.
Being good at being a student, being a go-getter, being data-driven in your college applications–none of these are bad things. They do not mean that the student who achieves all of this is not brilliant. At the same time, I think it’s just foolish to pretend that any of this adds up to brilliance or potential. I suspect that high school kids who have their own passions, views, interests and so forth and do not always produce the requisite data to be taken seriously by elite colleges partly because they do not find one-size-fits-all approach of much secondary education to be compelling or even a game worth playing are a group we ignore to our own disadvantage as a society. But then again, I’m a humanist.
Diversity is cherished in Liberal education to the extent that it is related to or represents, in the main, respect for de facto and de jure pluralism as realized and expressed in various communities (ethnic and otherwise), traditions, worldviews (individuated more or less as ‘lifeworlds’), lifestyles, and so forth (what Rawls calls, somewhat misleadingly, ‘comprehensive doctrines’) which are the primary source of both individual and collective identities (for a Liberal negotiation and accommodation of these identities in a way that can make space for moral psychological autonomy, public goods, and the democratic pursuit of individual and collective welfare and well-being—if not human fulfillment and eudaimonia or happiness—please see Kwame Anthony Appiah’s The Ethics of Identity [Princeton University Press, 2005]; a different but no less interesting and provocative approach to such matters is also found in the late David L. Norton’s Democracy and Moral Development: A Politics of Virtue [University of California Press, 1991]), which attempts to couple eudaimonistic individualism with democratic equality by nurturing moral and political autonomy within the ‘right’ forms of community and tradition).
The facts and conditions of this kind of pluralism for which the term “diversity” is a synonym, are increasingly found in contemporary democratic (or would-be democratic) polities, the U.S. being but one exemplar of these pluralistic conditions, and the principle of secularism serving at once as an acknowledgement of this pluralism and a means whereby minimal conditions for democratic toleration are encouraged and eventually established. A liberal democratic polity committed to social justice seeks to respect if not value differences of many kinds insofar as these represent the myriad voices and perspectives that arise from same, albeit within the constraints and enabling conditions of equal liberties, which includes respect for individual moral and political autonomy. To the extent that we value preferences, especially reflective preferences in a democratic polity, our participatory, deliberative, and representative processes and methods should be crafted within the philosophical and political framework of Liberalism (which includes, after Rawls, a conception of justice) in the broadest sense so as to be inclusive, that is, so as to acknowledge the principal forms of diversity and accord, minimally speaking, both representative and electoral respect for these preferences (see here, for example, Will Kymlicka’s Multicultural Citizenship [Oxford University Press, 1995] and Iris Marion Young’s Inclusion and Democracy [Oxford University Press, 2020]).
Rawls’s theorizing about the need for and real possibility of an “overlapping consensus” with regard to a Liberal conception of justice can be seen as historically descriptive of progress on these fronts in the U.S., but it is also of course normatively aspirational inasmuch as equal liberties and representation remain elusive and unfulfilled, and unjustifiably and inexcusably so given a Constitutional commitment to the values and principles of democratic Liberalism and the means, methods, and processes of participatory, deliberative and representative democracy. On this account, the desire or wish for, and the goal or the ends of diversity are intrinsically tied to the aims of social justice and thus this is not an “unspoken assumption” but rather a reasonable and urgent oft-acknowledged presumption or premise in the larger argument on behalf of Liberal democracy and the practical pursuit of same in public life. As one of our foremost political philosophers and theorists, Robert E. Goodin has argued,
· “Cultural institutions and policies matter. Harriet Beecher Stowe’s Uncle Tom’s Cabin famously helped people imagine what it might be like to be a slave, thus fueling the Abolitionist movement, and E.M. Forester’s Passage to India likewise helped Britons imagine what it might be like to be a colonial subject, encouraging sympathy for the demands for colonization. [Consider now, for better and worse, the power of mass and social media today on similar if not related subjects.]
· Policies [like ‘affirmative action’] and institutions that facilitate social mixing—having people whose social circumstance are radically unlike your own nearby, going to school with you or your children, riding public transportation alongside you—can again serve as an aid to the political imaginary. It is inevitable easier to project yourself into their place [hence empathy and perhaps sympathy and compassion as well] if you observe them at close quarters over a protracted period, and that might be true even if you little more than what you observer through causal interactions.
· Consultative procedures, even of an apparently toothless sort, could also actually have far more democratic bit than we might ordinarily suppose. Members of communities which are obliged to read other people’s submissions, even if the members of those committees are empowered then to ignore those submissions, might find themselves ‘putting themselves in the place of the other’ and being more responsive to the petitioner’s concern than we might expect from the power relations inscribed in those rules of procedure.”
To be sure, those most likely to benefit (and rightly so) from affirmative action policies in higher education, especially in the so-called elite private universities are not, typically, among those muted voices we find among the “socially excluded” within our societies: the homeless, many immigrants, those afflicted with the more severe or debilitating forms of mental illness, the incarcerated, the infirm elderly, and the indigent more generally. They are officially denied a vote/voice, “[a]nd even when they are formally enfranchised, the socially excluded typically lack the social wherewithal to give effective voice to their concerns.” Please see Robert E. Goodin’s Reflective Democracy (Oxford University Press, 2003), best read, I think, in conjunction with his later book, Innovating Democracy: Democratic Theory and Practice After the Deliberative Turn (Oxford University Press, 2008).
If we value our commitment to a truly democratic politics, which is “essentially a matter of coordinating people’s actions,” we will take heed to draw upon admittedly if only because unavoidably imperfect programs and policies (which are often open to correction or fine-tuning in light of conspicuous problems and well-intentioned critiques) like affirmative action so as to democratically aggregate and “blend” the “diverse beliefs and desires or values into collective decisions for [either direct or indirect] joint action.” This is but one facet of Liberal social justice or Rawlsian (or Rawlsian-like) justice as fairness.
“Harvard, for many years, ran its admission programs in such a way that Asian American applicants with certain educational achievements had less chance of being admitted than African American applicants with significantly lower educational achievements. There is nothing just about that.”
Nothing? Sure, if other things between the applicants are equal. So you must be assuming that other things are equal. But that assumption is contrary to a claim underlying the view that the diversity supports social justice. Many applicants achieve less under duress–or less than ideal conditions–than they would otherwise achieve. When such conditions underlie unequal educational achievement, it’s plausibe that there would be *something* just about admitting someone with fewer achievements.
I know, I know: many of the students admitted for diversity reasons weren’t disadvantaged. But the poor implementation of policy isn’t what you seem to be taking issue with above.
I’d like to make a somewhat different point here.
Sociologist Anthony Jack, author of a book called (perhaps somewhat misleadingly) _The Privileged Poor_, has found that about 50 percent of the low-income Black students admitted by elite colleges have attended private schools, often boarding schools. So even when elite colleges do admit low-income minority students, the colleges take them from an unrepresentative pool. The reasons for this may be understandable, but it can leave low-income students who have gone to public high schools feeling even more lost on those campuses, at least in some cases.
I don’t have pat answers to these issues, partly because it is not necessarily reasonable or practical to place on elite univs the role of being engines of social mobility. But as long as those univs rhetorically claim that that is one of the roles they are fulfilling, then they should face some societal pressure to bring their practice more in line with their rhetoric.
For what it’s worth, I recommend Michael C. Dorf’s characteristically pungent and incisive assessment of the poorly reasoned (in overlapping and mutually reinforcing historical, sociological, and legal ways) majority decision in his post from yesterday, “Precedents out of Context in the Harvard/UNC Affirmative Action Ruling,” as well as reading in full Justice Ketanji Brown Jackson’s exquisitely powerful dissent (29 pp.) found here (in pdf.). Justice Brown had to recuse herself from the Harvard case.
I happen to wholeheartedly agree with Justice Sotomayor:
“The Equal Protection Clause of the Fourteenth Amendment enshrines a guarantee of racial equality. The Court long ago concluded that this guarantee can be enforced through race-conscious means in a society that is not, and has never been, colorblind. In Brown v. Board of Education, 347 U. S. 483 (1954), the Court recognized the constitutional necessity of racially integrated schools in light of the harm inflicted by segregation and the ‘importance of education to our democratic society.’ Id., at 492–495. For 45 years, the Court extended Brown’s transformative legacy to the context of higher education, allowing colleges and universities to consider race in a limited way and for the limited purpose of promoting the important benefits of racial diversity. This limited use of race has helped equalize educational opportunities for all students of every race and background and has improved racial diversity on college campuses. Although progress has been slow and imperfect, race-conscious college admissions policies have advanced the Constitution’s guarantee of equality and have promoted Brown’s vision of a Nation with more inclusive schools. Today, this Court stands in the way and rolls back decades of precedent and momentous progress. It holds that race can no longer be used in a limited way in college admissions to achieve such critical benefits. In so holding, the Court cements a superficial rule of colorblindness as a constitutional principle in an endemically segregated society where race has always mattered and continues to matter. The Court subverts the constitutional guarantee of equal protection by further entrenching racial inequality in education, the very foundation of our democratic government and pluralistic society. Because the Court’s opinion is not grounded in law or fact and contravenes the vision of equality embodied in the Fourteenth Amendment, I dissent. [….]
True equality of educational opportunity in racially diverse schools is an essential component of the fabric of our democratic society. It is an interest of the highest order and a foundational requirement for the promotion of equal protection under the law. Brown recognized that passive race neutrality was inadequate to achieve the constitutional guarantee of racial equality in a Nation where the effects of segregation persist. In a society where race continues to matter, there is no constitutional requirement that institutions attempting to remedy their legacies of racial exclusion must operate with a blindfold. Today, this Court overrules decades of precedent and imposes a superficial rule of race blindness on the Nation. The devastating impact of this decision cannot be overstated. The majority’s vision of race neutrality will entrench racial segregation in higher education because racial inequality will persist so long as it is ignored. Notwithstanding this Court’s actions, however, society’s progress toward equality cannot be permanently halted. Diversity is now a fundamental American value, housed in our varied and multicultural American community that only continues to grow. The pursuit of racial diversity will go on. Although the Court has stripped out almost all uses of race in college admissions, universities can and should continue to use all available tools to meet society’s needs for diversity in education. Despite the Court’s unjustified exercise of power, the opinion today will serve only to highlight the Court’s own impotence in the face of an America whose cries for equality resound.”
Where’s the affirmative action for me? As a woman there is a whole range of jobs for which I wouldn’t even be considered. We now have proportionately many more women in college than men because for women there are no acceptable fallback positions. Men can get decent jobs without a college degree–blue collar jobs that are reasonably well paid. Women can’t get those jobs, or the apprenticeships that provide training for them. For women without college degrees there’s only agonizingly boring pink-collar drudge work. That’s where affirmative action is needed–and where it doesn’t exist.
So, AA should be used to increase the number of men in college, right?
Actually, preferential admission policies are likely used to increase the number of men in college. I have heard from admissions officers that at a number of schools (mid rank, anyway), male students are let in with lower grades, etc. because otherwise the gender balance would skew far too female, and that would be less attractive to students.
The whole admission process at the more elite selective colleges has been problematic for years, with schools being creative in how many ways they can game the system for their own agendas, including the PR of diversity, and more primarily to up their applications and income. The dropping of the standardized test requirement fits in here as well, since while clearly in some ways inadequate, without them the school has increased their ability to do whatever they want. The diversity criteria served a similar purpose. And, the result has been for applying students to have increased anxiety because the rules of the game and criteria for success aren’t clear, leading them to apply where they really have little chance of acceptance, doing personal and intellectual acrobatics to create resumes and applications, including those narrative personal essays, that may enable them to game the system in their own way. Most end up terribly disappointed. If these selective schools really wanted to be fair and diverse they would stop the gaming and instead, after perhaps recruiting some exceptional students they want to reward, would for the main set some minimum set of requirements grade and scorewise for everyone, and then have a lottery of all those in their applicant pool who meet those minimal standards. .
This weeks affirmative action decision seems to be a gesture at returning to fairness, with the remaining opening for being responsive to some extent on a students compelling story. That seems just about right, while still a mess. I think the over emphasis on affirmative action is unwarranted. The number of african americans who are affected by it at these selective colleges is all things considered small. Most colleges are quite diverse with or without affirmative action. And, qualified african american students will get into decent schools with or without affirmative action, albeit maybe not harvard. The real issue that is ignored by focussing on this is the social problem of how to help african american, and poor americans in general, have the resources and opportunities they need to thrive in life. This problem is not really touched one way or another by this supreme court decision. If poor, marginalized, and disadvantaged children and families could have the resources and opportunities they need we wouldn’t have to worry about whether harvard has 3% or 7% or 15% african americans. But it is easier to count the number of black students on campus than to solve the problems of poverty, crime in neighborhoods and schools, inadequately resourced teachers, drugs, absent fathers, and so on. How about we drop affirmative action and diversity programs altogether and instead fully fund prenatal care, decent day care, incentives for families staying together, drug rehabs, community policing, tutoring in school, job programs, find ways to keep businesses in those communities, create scholarships to help pay for school for those who want and can do it, and job training programs for those who cant or do not wish to go to college, and so on.