The Supreme Court is poised to make it unconstitutional for schools to consider race as part of an applicant's admissions file

Affirmative action and diversity are treated as politically-charged buzzwords . . . but what do they really mean under the law?


At the end of October, the Supreme Court heard oral arguments regarding the lawfulness of race-conscious admissions programs at Harvard and the University of North Carolina—a topic that folks generically call “affirmative action.” (The term has no legal meaning whatsoever.)

Harvard is accused of discriminating against Asian-American students through the use of a “point” system in admissions.

The complaint against the University of North Carolina is more vague. The conservative nonprofit Students for Fair Admissions argued that any consideration of race that is not otherwise tied to some other aspect of an applicant’s identity—like socio-economic hardship—is unconstitutional.

What’s stunning about this case is that the Fourteenth Amendment to the U.S. Constitution was ratified to rectify 400+ years of enslaving people of African-American descent. Yet now, the Court is poised to hold that the very provision of the Constitution designed to remedy the sordid affects of slavery now bans the consideration of African-American descent in admissions applications.

Yes, it’s a head-scratcher.

And if the challengers win—which seems likely based on the questions at oral argument—the constitutional ban on consideration of race could extend beyond schools, affecting American life in ways we can’t even imagine.

Photo credit: Chip Somodevilla / Getty

Moreover, if this Court holds that affirmative action is unconstitutional, it would be the second time within a year that a conservative majority of six unelected officials overturns decades-old precedent (the first being its gutting the constitutional right to abortion in June of 2022).

Since its 1978 ruling in Regents of the University of California v. Bakke, the Supreme Court has long held that universities can consider race in admissions. It also held that racial quotas go too far, but it’s undisputed that neither Harvard nor UNC use them.

So what happens if affirmative action is banned at universities?

Well, we already have some data on that.

The University of Michigan and the University of California stopped using affirmative action in admissions more than 15 years ago. They’ve since concluded that achieving a diverse student body without taking race into account is nearly impossible.

At the University of Michigan, 4% of the incoming freshman class for 2021 were Black students, per the New York Times.

Read Full Article Here

“Despite persistent, vigorous, and varied efforts to increase student-body racial and ethnic diversity by race-neutral means, admission and enrollment of underrepresented minority students have fallen precipitously in many of U-M’s schools and colleges” since Michigan voters barred public universities from considering race in admissions in 2006, the university wrote.

Read Full Article Here

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Justice Ketanji Brown Jackson was on fire during oral argument.

She questioned the logic behind allowing admissions officers to consider factors like disabilities, veteran status and the fact that an applicant acts as a caregiver, for example—while banning as unconstitutional consideration a student’s race as part of their overall identity. Jackson is a member of the most diverse Supreme Court in history and the first Black woman to serve in its 233 years of existence.

Her colleague Justice Sonia Sotomayor, who joined the Court in 2009, was the first woman of color to serve. Having grown up in housing projects in New York City, Sotomayor told Michigan State University students in 2018 that she “was the perfect affirmative action child.” She graduated from Princeton University and Yale Law School. “Don’t look at how I got in. Look at what I did,” she said.

Justice Thomas had a different take at oral argument last month.

I’ve heard the word diversity quite a few times, and I don’t have a clue what it means,” Justice Clarence Thomas said. “It seems to mean everything for everyone.”

Justice Samuel A. Alito Jr. agreed.

“What does that [underrepresented minority] mean?” Alito offered that college admissions are “a zero-sum game” in which granting advantages to one group necessarily disadvantages another.

Justice Sotomayor explained to her colleagues (on the U.S. Supreme Court in 2022, mind you) how race affects someone’s path and experiences.

“If you’re Black, you’re more likely to be in an underresourced school. You’re more likely to be taught by teachers who are not as qualified as others. You’re more likely to be viewed as having less academic potential.”

Some people argue that consideration of race in admissions is not the best path to diversity, and that reversal of decades of Supreme Court precedent would produce better, fairer admissions outcomes. But even if that’s so, should a handful of unelected judges—the last three of whom were put on the Court with bare majorities, disenfranchising half the country—be the ones to make that decision for the country?

Justice Jackson then posed a devastating hypothetical.

“There are two applicants who would like their family backgrounds recognized. One writes that their family has been in North Carolina since before the Civil War, and that if they were admitted to the university, they would be a fifth-generation student there. The other student is also a North Carolinian whose family has been in the state since before the Civil War—but their ancestors were enslaved and, because of years of systemic discrimination, were not allowed to attend the university. But now that they have the opportunity, they would like to attend. “As I understand your no-race-conscious-admissions rule, these two applicants would have a dramatically different opportunity to tell their family stories and to have them count.”

Both applicants were qualified, Jackson said, but the first applicant’s qualifications could be recognized in the process, whereas “the second one wouldn’t be able to [get credit for those qualifications] because his story is in many ways bound up with his race and the race of his ancestors.”

The lawyer for the challengers conceded that, in their view, consideration of the second applicant’s story would be unconstitutional.

Take that in…the theory is not that affirmative action is just bad policy. But that any consideration of race in admission is unconstitutional. And that it’s unconstitutional under a part of the Constitution that was specifically ratified after the Civil War to address the effects of race-based enslavement of certain American citizens.

Justice Brett Kavanaugh, for his part, reached out to Black student organizations at the nation’s top law schools to identify clerkship applicants after his confirmation. He was also the first justice in Supreme Court history to choose an all-female group of law clerks.

Whether he joins the majority is something to watch.

Education is key to saving democracy. Now is a good time to pick up or share a copy of my first book, How to Read the Constitution--and Why.

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