It’s not true that the U.S. Supreme Court is about to end affirmative action in college admissions.
Oh, the conservative majority on the court does seem prepared to stop colleges and universities from using race as a factor when considering applications.
But not to worry, children of privilege, because if that’s what happens, we’ll still have old school affirmative action, aka the way things have always been done.
Legacies can still be favored, so if Pop (or Mum, because, hey, this is 2022) was fourth generation at the school that, though you don’t make a big deal of it, has a hall with your great-grand’s name on it, well then nothing is going to change.
It’s only if you have a different sort of family history that taking that history into account would be wrong.
During almost five hours of oral arguments on the two affirmative action cases that the Supreme Court heard on Monday, Justice Ketanji Brown Jackson made all of this plain.
She threw out this hypothetical: Let’s say two students had applied to the University of North Carolina at Chapel Hill, whose affirmative action programs have been challenged, as have Harvard’s. Let’s say, too, that both applicants came from families that had been in the state “for generations, since before the Civil War.” Each hoped to honor that history as a student at UNC.
The first applicant would, if all went according to plan, be the fifth generation to graduate from UNC. The second applicant, alas, has no such family connections. What’s more, since that second student’s forebears had been enslaved, they’d never had a chance to attend the school.
“Now, 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,” Jackson told the lawyer arguing against affirmative action in the UNC case.
“The first applicant would be able to have his family background considered and valued by the institution as part of its consideration of whether or not to admit him, while the second one wouldn’t be able to because his story is in many ways bound up with his race and with the race of his ancestors.”
Jackson asked Patrick Strawbridge, the former Clarence Thomas clerk arguing for the anti-affirmative action group Students for Fair Admissions, whether excluding all consideration of race would not in fact violate the Fourteenth Amendment’s equal protection clause in such a case.
That is, in “a situation in which the person is not saying that his race is something that has impacted him in a negative way; he just wants to have it honored, just like the other person has their personal background, family story honored.”
Strawbridge answered that no one is stopping the school “from honoring those who have overcome slavery or recognizing its past contribution to racial segregation. But the question is, is that a basis to make decisions about admission of students who are born in 2003? And I don’t think that it necessarily is.”
California banned affirmative action
Since the ‘70s, race has been a basis of admissions decisions — one of many factors — elsewhere in the country. But now that may no longer be the case, because the negative impacts of racism are all in the past? Instead, let’s just keep favoring those who have always been favored, yes?
No and no, as California has proven.
California’s state schools ended affirmative action after Proposition 209 was adopted in 1996. When that happened, the number of Black freshmen enrolled at UCLA fell by nearly half in a single year. So when UNC and Harvard College argue that diversity will suffer if the Supreme Court trashes affirmative action, we know they’re right.
Side note to Justice Clarence Thomas: Behold the refreshing sight of Jackson recusing herself from the second case you heard Monday because it involved her alma mater, Harvard. She served on the governing board there until May, and one of her daughters is a Harvard student. So of course, it’s only right that she step back.
Yet while Jackson recused herself in a case involving her school, Thomas did not even recuse himself from a decision involving his wife. Ultimately, the court refused to block access by the House committee investigating the Jan. 6 attack on the Capitol to communications between Thomas’ wife, Ginni Thomas, and then-White House chief of staff Mark Meadows.
Before the insurrection, she texted Meadows 29 times, urging him in effect to participate in a coup. “Help This Great President stand firm, Mark!!!” she wrote. “Biden and the Left [are] attempting the greatest Heist of our History.”
Last January, the court decided not to withhold Trump’s White House records, including those texts, from the congressional committee. Thomas cast the only vote against releasing the records that included his wife’s texts.
In Monday’s arguments, conservative judges kept circling back to the question of when this race business would finally be behind us, and affirmative action unnecessary as a result.
“I don’t know how you can say the program will ever end,” Chief Justice John G. Roberts Jr. told North Carolina’s solicitor general. “You’re always going to have to look at race because you say race matters.”
“How do you know when you’re done?” asked Justice Amy Coney Barrett.
Maybe like pornography — “I know it when I see it,” Justice Potter Stewart told us in 1964 — we’ll know when we don’t see it? And is anyone really arguing that that time is now?
The landmark 2003 decision in Grutter v. Bollinger said that diversity in higher education was so important that race should be considered in admissions decisions. But it also said that racial preferences were not likely to be needed 25 years later.
That wasn’t a firm deadline, though, for the cessation of hostilities in the civil war that the South in some ways won.
Lee C. Bollinger, who was president of the University of Michigan when its affirmative action programs were challenged, has led Columbia University for the last 20 years. If barred from considering race in admissions decisions, Bollinger told reporters last week, diversity at Columbia and elsewhere would be set back dramatically: “I would expect it to have a significant impact.”
The same people who don’t think our children should learn about America’s racial history in school don’t think our schools should take race into account in admissions decisions. Cui bono? You know the answer, even if you didn’t go to Harvard.
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