Affirmative action is not what its enemies say it is, but that doesn’t mean that six Republican justices won’t pretend to believe it
10 February 2022
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This week, the Supreme Court agreed to hear two cases on affirmative action, signaling a strong likelihood it will be ruled unconstitutional.
Race-conscious admissions have gone through a lot of constitutional review with cases in 2003 and 2016 upholding the consideration of race in college admissions, as long as a quota system isn’t used.
Like many cases under consideration by the court this term, the only reason to take the case is to overrule recent precedent (which begs the question if precedent is completely meaningless to this court).
When will people learn they’re not entitled to go to Harvard just because their parents made them sit through SAT prep courses?
Both cases are being brought by the Students for Fair Admissions, one against Harvard and one against the University of North Carolina. The president of Students for Fair Admissions isn’t a student at all but a former stockbroker who has made it his personal agenda to challenge policies on race because he feels society should be “colorblind.”
Edward Blum’s targets so far have been voting legislation and affirmative action. Blum started his career as a professional litigant after he lost a congressional race in a predominantly Black district.
The district was created as a minority-majority district to increase minority representation in Congress. The case made it to the Supreme Court in Bush v. Vera in 1996 which ruled the district constituted a racial gerrymander and was unconstitutional.
In 2005, Blum created the Project on Fair Representation “designed to support litigation that challenges racial and ethnic classifications and preferences in state and federal courts.” Blum and this project were behind Shelby v. Holder, which gutted the Voting Rights Act in 2013.
Blum and the Students for Fair Admissions also supported the 2016 Affirmative Action challenge Fisher v. UT Austin, which upheld race-conscious admissions but ruled that strict scrutiny should be applied when considering such policies. Blum and his organizations are clearly set on attacking all race-conscious policies.
While we tend to see affirmative action as a “correction” for past discrimination, race-conscious admissions is in fact a way for a university to create an inclusive, diverse student body.
Racial quotas in college admissions have been considered unconstitutional since Bakke v. California in 1976 and even a formalized point system was ruled unconstitutional in Gratz v. Bollinger in 2003.
What remains in admissions policies is using race as one consideration of many to build a diverse class. The students for whom race is considered are already in the pool of the most qualified applicants. No one, except maybe legacies, is being let into highly selective universities if they aren’t qualified for a spot.
Race is considered in the same way one’s socioeconomic background might be. A student from Long Island or Orange County might be less interesting to Harvard than a student from Arkansas or Mississippi.
Similarly, if a student is applying to college as the first in their family, as opposed to say a third generation college student, their application might grab the interest of an admissions officer.
Most elite universities do not make “objective” acceptances based simply on GPAs and test scores. Instead they consider the entire package of an applicant which might include their zip code, an interesting extra curricular, playing an instrument or a sport that is needed by the school, or the applicant’s racial background.
The case against Harvard asserts that Asian students with similar stats are being rejected compared to Black students to show discrimination, but how can such an assertion be made in such a subjective system?
At Harvard, race is a “tip factor” that can push someone’s application over the line to be admitted. A list of factors considered “tips” by Harvard include “outstanding and unusual intellectual ability, unusually appealing personal qualities, outstanding capacity for leadership, creative ability, athletic ability, legacy status, and geographic, ethnic, or economic factors,” as well as race.
It isn’t as simple as saying between a white and Black student the Black student is more likely to get in. If the white applicant is from an underrepresented area or the first in their family to go to college, that could push them over the line to be accepted over a Black student without those considerations.
Oddly enough, the Harvard case is being argued on behalf of a historically marginalized group, Asian applicants. Though Students for Fair Admissions claims their interest is in eliminating all race or ethnic consideration in admissions, they are arguing that Harvard’s current admissions process “sustains admissions programs that intentionally discriminate against historically oppressed minorities.”
The argument is attempting to link the historical discrimination against Jewish applicants to Ivy League schools to the current race-conscious admissions process.
To make this link they have to claim the intentional discrimination against Asian applicants, which is hard to prove with just statistical analysis of a subjective process.
Considering the stated mission of the Students for Fair Admissions, it seems unlikely they would support any policy that explicitly corrected the claimed discrimination against Asian students. Instead they likely are fine with a statistical disparity in admissions as long as it's not the result of a policy that considers race.
After all, the Students for Fair Admissions hasn’t challenged Harvard’s legacy admissions policy of which 70 percent of the accepted students are white.
What Blum and those associated with him are really fighting for are facially neutral (no mention of race), or “colorblind,” policies that may or may not result in racial discrimination.
But as anyone familiar with that scary critical race theory knows, facially neutral laws can perpetuate a lot of racial discrimination. We don’t live in a colorblind society. Our laws, policies and culture must acknowledge race and racism.
The systemic structures in this country still predominantly benefit white people. To correct that, we absolutely must have laws and policies that are conscious of race.
Race consciousness in admissions does not let in unqualified Black students while punishing more qualified white and Asian students. It simply looks at the entirety of an applicant to fully consider their experience and the future diversity of the class.
We have already seen the harm done as a result of Blum’s attack on voting rights and we don’t know what race-conscious policies he’ll target next if he succeeds at destroying affirmative action.