Back at the Court: Affirmative Action in Higher Education

Years ago, the elite colleges routinely discriminated against African Americans in their admissions practices.  When psychologist Kenneth Clark applied to the doctoral program at Cornell University, he received a letter telling him that, although he met all the requirements, they were denying him entrance because, as they put it, “you wouldn’t be happy here.”  (Clark wrote them back to tell them that he was perfectly capable of tending to his own happiness, then proceeded to get his PhD from Columbia.)  Now, elite colleges want racially diverse student bodies, and thus they want  to engage in some degree of race-based Affirmative Action to ensure diversity.

It needs to be noted that admissions offices at competitive colleges employ all kinds of measures of diversity in the selection processes.  With or without race as a factor, they want students from different regions, different cultural backgrounds, different interests (they want some of their students to be athletes, some to be actors, singers, dancers, etc.), and different everything else.  It also needs to be noted that Harvard (one of the defendants in the cases the Court will soon be hearing) openly practices legacy admission, giving special preference to the sons and daughters of Harvard alumni.

The Supreme Court has made a number of things clear.  First, the Fourteenth Amendment does not require state universities to use race-based criteria to correct historic imbalances, and thus states are free to prohibit it.  Secondly, it is not all right to have quotas, that is, seats expressly reserved for nonwhites or members of other protected affinity groups (Regents of University of California v. Bakke, 1978).  Third, when a university does take race into account as part of a broader system of angling for diversity in its admissions, the system that it uses must be narrowly tailored to serve a compelling interest and must be able to withstand strict scrutiny (Grutter v. Bollinger, 2003).  A more recent attempt to drive a stake into the heart of race-based Affirmative Action failed; that was the Abigail Fisher case (Fisher v. University of Texas at Austin, 2016).

But there is a differently configured Supreme Court now.  Three of the currently sitting justices–Roberts, Alito, and Thomas–were on the side of prohibiting any consideration of race at all in college admissions, and they have been joined by three Trump appointees–Gorsuch, Kavanaugh, and Barrett–who are likely to agree.  And the Court has just agreed to hear two Affirmative Action cases in the coming year, one involving Harvard (for which the relevant law is the Civil Rights Act of 1964, because Harvard is a private university), the other involving the University of North Carolina (for which the Fourteenth Amendment applies, because UNC is a state school).  In the suit against Harvard, the claim is that Harvard’s policy discriminates against Asian students, in spite of the fact that Asian numbers at Harvard are actually greater than the numbers of African American students.

Like the Abigail Fisher case, these two cases are being orchestrated by an organized interest group, Students For Fair Admissions (SFFA).  In fact, this interest group is run by the same individual who was behind Abigail Fisher’s suit, Leon Blum.

If Blum’s group wins, it may still be possible for colleges to ensure racial diversity in more subtle ways.  What effect it will have on racial diversity at elite colleges if the suits win remains to be seen, but given the current makeup of the Court, that is a very real possibility.

Article in Politico, January 24, 2022

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