SCOTUS squashes affirmative action

Red Meat For Mushy Moderates

The Roberts Court (since June 2022): Front row, from left: Sonia Sotomayor, Clarence Thomas, Chief Justice John Roberts, Samuel Alito, and Elena Kagan. Back row: Amy Coney Barrett, Neil Gorsuch, Brett Kavanaugh, and Ketanji Brown Jackson. -Wikipedia

It’s been awhile since we’ve seen a series of rulings by the U.S. Supreme Court with such wide-ranging impacts. Last week alone featured a blizzard of rulings on everything from affirmative action in higher education to student loan forgiveness to the rights of business owners not to perform work whose content they deem offensive. The last several days have been, no doubt, a moment of victory for the right.

Indeed, as the New York Times put it, “The Supreme Court’s rejection of President Biden’s plan to forgive more than $400 billion in student debt was the latest in a series of decisions in which the justices have ruled that his administration overstepped its legal authority.”

Here’s my relatively brief take on the decision that really caught my eye:

Affirmative action now illegal

In a 6-3 decision along ideological lines, the now-conservative high court struck down the practice of race-based preferences in the college entry process (the text of the opinion can be found here). In finding the consideration of race in admissions by Harvard and the University of North Carolina to be unconstitutional, the majority opinion cited the equal-protection clause of the 14th Amendment, the Reconstruction-era amendment which is cited in more litigation than any other section of the Bill of Rights, according to the Library of Congress.

The litigants in the case specifically claimed Harvard discriminated against Asian-American applicants, claiming that well-qualified Black applicants were 4 to 10 times as likely to be admitted to Harvard than similarly qualified Asian-Americans. While some Asian groups support affirmative action, many others have “denounced the decision as an attack on civil rights.”

Chief Justice John Roberts wrote that admissions officers could consider “an applicant’s discussion of how race affected his or her life, be it through discrimination, inspiration, or otherwise,” but he also warned against using such experiences as a means of getting around the court’s decision.

Yale's Old Campus at dusk, April 2013 -Wikipedia

Most colleges insist that race-based preferences work and are an important tool for achieving and maintaining diversity. But even as the parent of two non-white children, I’ve always been wary of basing anything in this country on race, even if well intentioned. America’s history on racial matters is so ugly that we should not be in the business of deciding who gets what based on skin color, even if it’s only one factor in the process.

It will be a struggle, but now colleges will have to maintain diversity by other means. Might I suggest that affirmative action be based on socioeconomic status? This is an approach I’ve long preferred. Such preferences would still disproportionately benefit people of color without the stigma attached to race-based measures — and without running afoul of the court’s ruling.

That said, if preferences in college admissions based on race are now prohibited, what about preferences based on family history? It’s an open secret that so-called “legacy” applicants whose parents or grandparents attended the college in question are more likely to gain admission than similarly qualified applicants who have no past connection with the school.

Most observers say legacy admissions are all about money and they’re right, though not as right as they might think. I used to work in development and fundraising in private schools. The way to maintain existing donors and — and even identifying new ones — is to ensure that they always remain connected to the institution on some meaningful level. And what better way to continue that connection than than having a child or grandchild attending the school?

But here’s something most observers don’t know: one of the most popular restrictions placed on major gifts to independent schools and universities isn’t that the donor’s name be placed on a building, but that the money go towards scholarships for either merit- or need-based financial aid. Those aid awards disproportionately benefit students of color.

Still, I suspect legacy admissions — unfair but legal — have run their course. Discontinuing race-based preferences while maintaining privilege-based preferences, will be a hard sell, even with this conservative court. Look for a challenge soon — possibly on 14th Amendment grounds — to what some are calling “affirmative action for white people.”