WHAT'S REALLY GOING ON HERE?
JUSTICE BARRETT'S "AFFIRMATIVE ACTION" -- A PERNICIOUS LEGAL THEORY THAT WILL FORCE BOTH PUBLIC AND PRIVATE ELITE UNIVERSITIES TO ABANDON DIVERSITY AND RETAIN WHITE PRIVILEGE IN ADMISSIONS
Two major cases before the Supreme Court this term will challenge its remaining precedents that allow some degree of consideration of applicants’ race in college admissions decisions: one concerns admission decisions at a state-funded school (the University of North Carolina); the other challenges admissions practices at a private college (Harvard). Both essentially question whether “holistic” admission criteria that provide some degree of special attention to educationally disadvantaged Black and certain other applicants of color achieve the schools’ educational policy to enroll a racially diverse entering class denies federally guaranteed rights of applicants from other racial backgrounds, especially whites and Asians. In this zero-sum analysis of the college admissions process, any kind of special preference for applicants based on their race is arguably unconstitutional under the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution, at least when it occurs in a state university, and perhaps also in a private college that accepts federal financing for its programs.
“Lawyers for Harvard said the challengers had relied on a flawed statistical analysis and denied that the university discriminated against Asian American applicants. More generally, they said race-conscious admissions policies are lawful. In the North Carolina case, the plaintiffs made a more familiar argument, saying the university discriminated against white and Asian applicants by giving preference to Black, Hispanic and Native American ones. The university responded that its admissions policies fostered educational diversity and were lawful under longstanding Supreme Court precedents.
“The cases will test the newly bolstered conservative majority’s commitment to precedent. As in recent cases on abortion, there are reasons to think that the majority will not hesitate to overrule major precedents if it views them to be egregiously wrong. The possibility of a ruling that would either restrict or prohibit race as a consideration in admissions would reverberate widely across higher education and could fundamentally reshape college admissions in the years to come.” https://www.nytimes.com/2022/01/24/us/politics/supreme-court- affirmative-action-harvard-unc.html
Both UNC and Harvard have prevailed in the lower federal courts, but a sufficient number of the current Justices granted reviews of each decision, separately but on the same day, which will bring the Court’s affirmative action precedents into highly consequential focus.
“For decades, the Supreme Court has splintered over the role of race in admissions. A landmark 1978 case, California v. Bakke, drew six different opinions from the nine justices. The controlling opinion, by Justice Lewis Powell, set out the compromise that endures today: universities may consider race as a factor in admissions, but cannot enforce racial quotas or set-asides. Unlike other justices who said race- conscious policies were a way to redress discrimination, Powell said building a diverse student body was the kind of compelling government interest that allowed the limited use of racial sorting.
“‘The nation’s future depends upon leaders trained through wide exposure to the ideas and mores of students as diverse as this Nation of many peoples,’ he wrote.” https://www.washingtonpost.com/education/2022/10/22/race- college-admissions-poll results/?utm_source=alert&utm_medium=email&utm_campaign=wp_ news_alert_revere&location=alert
In Grutter v. Bollinger, the Supreme Court endorsed holistic admissions programs at the University of Michigan, saying it was permissible to consider race as one factor among many to achieve educational diversity. Justice Sandra Day O’Connor wrote that in “25 years from now,” the “use of racial preferences will no longer be necessary.” https://www.nytimes.com/2022/01/24/us/politics/supre me-court-affirmative-action-harvard-unc.html
Meanwhile, in Fisher v. University of Texas in 2016, Justice Anthony M. Kennedy, not previously a supporter of affirmative action, wrote that courts must give universities substantial but not total leeway in devising their admissions programs, and upheld race-conscious process at the University of Texas. For colleges and universities that take race into account, it is typically described as one of many factors in an “holistic” review that includes grades, test scores, extracurricular activities, and other information about an applicant’s background, all in order to result in the desired diversity in its entering classes sought by the school. See washingtonpost.com, ibid.
On balance, as the two new cases approach their oral arguments at the end of this month, the Courts decisions to allow some limited consideration of applicants’ race in the admissions process depend on the notion that building a diverse student body, as Justice Powell initially ruled in Bakke, remains a sufficiently compelling government interest that can override unintended consequences that could be argued disadvantage certain racial groups – and no longer on the premise that racial considerations are necessary to redress past and present racial discrimination. Nonetheless, the cases today are caught up in the broad public dispute concerning the Black Lives Matter movement as well as “Critical Race Theory” to the effect that structural racism against Blacks and others has persisted in our nation’s laws and institutions to this day. Those opposed to BLM and CRT have joined the fight, now taking direct aim against the “diversity” defense of affirmative action in admissions.
“Brian T. Fitzpatrick, a law professor at Vanderbilt University, said it was time for a course correction. ‘In the wake of the Black Lives Matter movement, universities have become obsessed with racial preferences to a degree that I have not seen in my 15 years in academia,’ he said. ‘It seems like nothing is more important than race anymore.’ Lee C. Bollinger, the president of Columbia University, drew the opposite lesson from the national debate over racial justice. ‘Broad public awareness of the unrelenting impact of racism demands a recommitment to affirmative action, not its abandonment,’ he said in a statement.”
“....
“Damon Hewitt, the president of the Lawyers’ Committee for Civil Rights Under the Law, which represents students and alumni defending the programs, said they served a vital role. ‘Selective universities like Harvard and U.N.C.-Chapel Hill have long struggled to admit students of color, who have over time been excluded for access to elite institutions and are historically marginalized,’ Mr. Hewitt said. ‘Race-conscious admissions policies are a critical tool that ensures students of color are not overlooked in a process that does not typically value their determination, accomplishments and immense talents.’ But Kenneth L. Marcus, who served as assistant secretary for civil rights at the Education Department in the Trump administration, said Harvard’s treatment of Asian students was reminiscent of its efforts to limit Jewish enrollment. ‘Just as Harvard in the 1930s thought that Jewish students lacked the character to make them good Harvard men,’ he said, ‘so today they often view Asian students as lacking the appropriate character. character.’”
https://www.nytimes.com/2022/01/24/us/politics/supreme-court- affirmative-action-harvard-unc.html
For a significant number of state flagship universities, the issue before the Court now is already moot. Nine states – Arizona, California, Florida, Idaho, Michigan, Nebraska, New Hampshire, Oklahoma, and Washington – prohibit consideration of race in public university admissions and several major public universities intentionally design their processes to ignore race. Most of America’s colleges, in fact, accept most or nearly all applicants. Low overall admission rates for the Ivy League and other prestigious private and state universities make the questions of who gets in and who doesn’t – and, especially, whether the process is fair and legal.
‘The challenge to Harvard centered on a claim that it illegally discriminated against Asian American applicants. A federal judge in Massachusetts rejected the claim after a widely publicized trial in 2018 that exposed the sometimes-embarrassing inner workings of the Ivy League university, including an admission rate for so-called legacy students, with parents who went to Harvard College. (It was 34 percent, more than five times the regular rate.)....The challenge to UNC- Chapel Hill focused on allegations that the university had violated the equal protection clause of the 14th Amendment and civil rights law by discriminating against White and Asian American applicants, putting too much weight on race in its deliberations and failing to give adequate consideration to ‘race-neutral’ alternatives....In 2021, U.S. District Judge Loretta C. Biggs ruled that UNC-Chapel Hill had not violated civil rights laws and that its admission practices were constitutional. Biggs accepted the view of an expert witness for the university that UNC-Chapel Hill’s process was not formulaic and that race and ethnicity were not ‘dominant factors’ in decision-making. She also ruled that the university had made a ‘good faith’ effort to use race- neutral approaches, citing an extensive financial aid program and other measures to recruit rural, low-income and first-generation college students. Biggs also cited the work of historian David Cecelski, who wrote in a report submitted for the court record that UNC-Chapel Hill was ‘a strong and active promoter of white supremacy and racist exclusion for most of its history,’ with ties to enslavers, the Ku Klux Klan and ‘ardent defenders’ of Jim Crow. That history, Biggs wrote, provided ‘an important contribution to the Court’s understanding of the context of this case.’”
UNC excluded Black students for more than a century and a half after it was founded in 1789. Today’s Black share of undergraduates, at about 9 percent, is substantially less than the 22 percent Black share of the state population. Around 56 percent of undergraduates at Chapel Hill are white, according to federal data, 13 percent of Asian descent, 10 percent Hispanic or Latino, 5 percent multiracial, and 5 percent international, with the rest of unknown. See washingtonpost.com, ibid; https://www.washingtonpost.com/education/2022/10/1 0/supreme-court-race-unc-admission/
In view of the history of racial discrimination in admissions in elite colleges and universities, the hardening lines of income disparity between the haves and the have nots among American families and related gridlock in social and economic mobility, and the Supreme Court’s precedents regarding affirmative action in higher education, what will the Justices decide in the two cases now before them? What should they decide? The American Council on Education, which represents college and university presidents, led 40 higher education groups in filing a friend-of-the-court brief supporting Harvard and UNC-Chapel Hill’s position. These included the American Association of State Colleges and Universities, the Association of Catholic Colleges and Universities, and the United Negro College Fund.
“‘A rule that prohibits race and ethnicity from being considered would ultimately chill prospective students from discussing their racial or ethnic identity or relying on recommendations that carry a racial or ethnic valence: leadership in an [African Methodist Episcopal] church choir, work for a Black-owned business, or receipt of a scholarship or internship designed to increase minority representation in particular industries or fields of study,’ the education groups argued.
“‘But all applicants should be allowed and encouraged to talk about their life experiences and how they might contribute to an institution’s educational environment or community commitments.’”
The higher education leadership groups also told the court that universities’ First Amendment and academic freedom rights hang in the balance:
“’The First Amendment affords colleges and universities substantial deference on matters involving academic judgment and, as a result, safeguards the role of America’s colleges and universities as incubators for creative thought, productive dialogue, and innovative discovery,’ the brief stated. Further, it argued: ‘Academic freedom necessarily encompasses decisions about who to enroll at any given institution.’
“The council said the issues affect more than highly selective colleges. It cited the recruiting needs of a university fine arts program that works with a historically Black dance company; a school devoted to contemporary Native American and Alaskan Native art; and a historically Black divinity school. ‘These programs should be able to consider an applicant’s race or ethnicity as one of many factors to ensure that the diversity of their admitted students bears some relation to the mission being pursued,’ the council said.” https://www.washingtonpost.com/education/2022/08/01/supreme- court-college-admissions-race-first-amendment/
Harvard’s brief likewise argued that, although the Fourteenth Amendment promises equal protection of the laws, it “does not require us to disregard the commonsense reality that race is one among many things that shape life experiences in meaningful ways.” Ibid.
As it happens, Justice Amy Coney Barrett has already left several clues in her writings as precisely how she would vote on the Harvard and University of North Carolina cases. She made clear in her Senate confirmation process – which set land-speed record for Court vetting, even fewer days than it took for the British Prime minister to assume and then leave office – that she is a confirmed “originalist.” But little time was spent in spelling out what her stance would mean regarding the Fourteenth Amendment’s guarantee of equal protection of the laws.
According to one education law expert, William E. Thro, general counsel at the University of Kentucky, an “originalist” view of how the Fourteenth Amendment, which granted former slaves citizenship and equal protection under the law, would apply to today’s racial preferences in admissions would depend on how they would have been viewed when the Amendment was adopted in 1868! There was a recognition back then that it was necessary to give a preference to the newly freed slaves for a period of time, such as the promise to give freed families forty acres and a mule (which was not honored). According to Mr. Thro, however, those ratifying the Amendment did not intend to extend application of equal protection to promoting diversity, as it is being used to justify college admissions policies that factor in race. https://www.insidehighered.com/news/2020/09/28/no mination-seen-pushing-supreme-court-right
The originalist argument, however, depends on a vivid and unerring feat of imagination regarding the minds of the citizenry and legislators and legal scholars one hundred and fifty years ago; a kind of retrospective clairvoyance. Perhaps in view of that problem in terms of convincing the minds of Americans today – and the complex issues of constitutional interpretation as between universities First Amendment speech and freedom of association rights and a purportedly originalist interpretation of the Equal Protection Clause – leading conservative commentators who have always been against affirmative action have suggested using the literal working of Title VI of the Civil Rights Act of 1964 as a means to achieve the end of affirmative action through statutory interpretation that also works around the Court’s precedents affirming the constitutionality of limited consideration of race in admissions.
Ramesh Ponnuru is a Bloomberg Opinion columnist, editor of National Review, a contributor to CNN and PBS, and a fellow at the American Enterprise Institute. In his view, this time around, the Court ought to issue a “simpler ruling” against affirmative action in college admissions – but that potentially would go much further than he lets on in terms of imposing new judicial roadblocks to racial equity in America. That ruling would hold that “It is illegal for colleges to treat applicants differently based on their race.”
“Congress and the president decided that policy in 1964, and for the justices that should be the end of the matter. The Civil Rights Act of that year included this provision: ‘No person in the United States shall, on the ground of race, color, or national origin ... be subjected to discrimination under any program or activity receiving Federal financial assistance.’ Nearly every college in the U.S. receives some form of federal assistance. This language seems obviously to prohibit any of them from applying different admissions criteria to applicants depending on their race.
“But Justice Lewis Powell figured out a way to avoid the import of these words in a 1978 case. The Civil Rights Act was an attempt to enforce the 14th Amendment’s guarantee that all people will receive the equal protection of the laws,’ he wrote, and it was up to the justices to decide what the amendment means. If the justices decided to read the amendment to allow race-conscious policies, then the statute had to allow them, too. The status of Powell’s sophistry as a precedent is open to question. He wrote the controlling opinion in the case, but no other justice joined it. In subsequent cases, though, justices have mostly ignored the statutory issue.
“Powell’s opinion pulled the court into a morass that gets ever muddier. Allowing the plain meaning of the Civil Rights Act to govern these cases would let the court escape. No longer would the court have to determine whether racial diversity is a legitimate objective for colleges, how much diversity they should seek, or how far they should go to achieve it. It wouldn’t have to ask how much leeway colleges should have to discriminate if they think it would further their educational mission. It wouldn’t have to ask, either, whether there’s a difference between discriminating against Asian-Americans to help African-Americans and Hispanics, on the one hand, and discriminating against them to help Whites, on the other. Instead the court could conclude that Congress has already decided these questions for it. The simple rule would be: No amount of discrimination on the basis of race is acceptable.”
“If it followed this course, the court would not even have to decide whether the 14th Amendment blocks institutions of higher education that take public funding from considering applicants’ race. So long as Congress forbids the practice, the constitutional question is hypothetical, as Justice John Paul Stevens wrote in a fine response to Powell in that 1978 case.” https://www.washingtonpost.com/business/supreme-court-should- just-end-college-affirmative-action/2022/01/25/6f1c2a70-7e09-11ec- 8cc8-b696564ba796_story.html
A Wall Street Journal OpEd by Edward McGinnis, a law professor at Northwestern University, endorsed the same argument just this past week. Along the way, the author and the Journal gave a hat-tip to the views of Justice Barrett in terms of clearing the way for such a “modest” path (as the Journal’s OpEd headine put it) for settling the issue of affirmative action in college admissions once and for all. As we shall see, the settlement envisioned by Barrett and McGinnis partnership is hardly modest – rather, it is a sneaky way to get around precedent and obviate any distinction between state-sponsored and private universities when it comes to ending affirmative action. It could also have pernicious effects well beyond the campus to the very heart of America’s living when it comes to efforts to promote diversity in any aspect of American economic life. Once courts take legislative language out of its proper context in favor of unthinking literalism, they take a real risk of out-of-control, unintended adverse consequences.
“The U.S. Supreme Court will hear two cases on Oct. 31 about whether universities have illegally discriminated against Asian-Americans. In both cases, Students for Fair Admission asks the court to overturn Grutter v. Bollinger, the 2003 case that held the pursuit of diversity satisfies the strict scrutiny required to overcome the constitutional presumption against discrimination under the 14th Amendment’s Equal Protection Clause. But the justices can put a stop to racial preferences without reaching the constitutional question. Universities are required to abide by Title VI of the Civil Rights Act of 1964, which is unambiguous about preferential admission on the basis of race....
“There is no indication in its text that Title VI incorporates the Equal Protection Clause....Nonetheless, the majority in Grutter read the statute as if it applied the Equal Protection Clause. Traditionally, courts read statutes to avoid hard constitutional questions if possible. Grutter did the opposite; it entangled Title VI unnecessarilywith the Constitution. Courts also generally interpret clear statutory language to mean what it says. Grutter did the opposite here as well, replacing clear and precise language with vague and ambiguous language not in the statute.
“The simple course would be for the court to revive the plain reading of Title VI as prohibiting all racial and ethnic preferences in university admissions, regardless of whether they would be constitutional if Congress changed the law to authorize them. But the jurisprudential issue is complicated, because the court has generally applied a strong version of stare decisis, or respect for precedent, to its previous interpretations of statutes. In a 2005 article, a legal theorist argued that courts should rethink how they apply stare decisis to cases interpreting statutes. The author was Prof. Amy Coney Barrett of Notre Dame Law School, now Justice Barrett.”
https://www.wsj.com/articles/amy-coney-barretts-modest-way-to- end-racial-preferences-supreme-court-harvard-asian-americans- university-colege-discrimination-11665947449
Professor McGinnis went on to explain how the Barrett article laid out a pathway for the Supreme Court to give less weight to its own precedents regarding interpretation of Congressional statutes where the “plain meaning” of the legislative language was clear on its face, and more willing to correct its own previous interpretations if they stood in the way of enforcing the literal text of the law. Ibid. Her approach attempts to leverage her strict “originalist” doctrine with the aid of a strict “textualist” mode of interpretation to create a new category of what might be called “soft” precedents. In
her Senate confirmation hearings, then Judge Barrett made clear that there exists, to her, a clear distinction between “super-precedents” of the Court that have settled into a broadly accepted, non-controversial public policy posture, as opposed to vulnerable precedents like the Roe and Casey that have been subject to political challenges and calls for reversal from their announcement to the present day. The 21st century line of affirmative action decisions by the Court relating to affirmative action in college admissions indeed seems to fit her latter, and thus could be considered by the Court as somewhat less “settled law.”
There are several problems, and several dangers, with this attempt to turn Title VI into a cudgel against educational equity for certain people of color. First and foremost, it flies in the face of Justice Barrett’s version of “originalism.” No one except Barrett acolytes can assert with a straight face that the blunt Title VI language was intended or understood in 1964 as relating to affirmative action programs designed to help Black persons get into college and promote racial and ethnic diversity in college enrollment. Such programs, as we know them today, simply did not exist in 1964. The actual intent and purpose of Title VI was to eradicate discrimination against persons of color on the part of any entity which receives federal funding for its activities, not to guard against any alleged favoritism toward persons of color. The Justices do not need to look back into the minds of the 1964 drafters and their contemporaries to know what Title VI was all about at that time: they just need to get out the videotape. They can also read the regulations issued by federal agencies from 1964 to the present day describing the offenses they and the Justice Department will prosecute if they find evidence of a Title VI violation – affirmative action programs to expand diversity in college and university enrollment have not been targeted.
The same goes for the effort to use the famous Title IX of the Educational Amendments of 1972 Act to reject affirmative action to achieve class diversity. Title IX addressed overt discrimination against female applicants and students and required equal treatment for them in terms of university programs and activities including athletics and more recently in investigations of alleged sexual attacks and harassment. Title IX originally was thus pro-diversity in terms of gender, not anti-diversity in any respect.
The Court’s newest Justice, Katanji Brown Jackson, has already demonstrated on her first day of oral argument that she is well prepared to use a new, factual “originalism” to make mincemeat of the faux originalism of Justice Barrett and other Federalist Society Justices like Clarence Thomas.
“Justice Ketanji Brown Jackson invoked the original meaning of the US Constitution in her first days of Supreme Court arguments, suggesting that she’s round willing to engage with a constitutional doctrine traditionally associated with conservatives.
“The ‘framers themselves adopted the equal protection clause’ reflected in the 14th and 15th amendments ‘in a race conscious way,’ Jackson said Tuesday in countering the argument that redistricting—and particularly challenges to redistricting plans under the Voting Rights Act—must be race-blind.
“....
“‘By diving deep into the history of the Reconstruction Amendments, Justice Jackson made clear that she is not going to cede the text and history of the Constitution to conservatives,’ said Brianne Gorod, chief counsel at the Constitutional Accountability Center, which describes itself as advancing ‘a progressive interpretation of the Constitution’ through the use of originalism.” Bloomberg Law. “Justice Jackson Takes Originalist Approach on Voting Rights Case.” October 4, 2022.
Justice Thomas has long argued that affirmative action policies tend to stigmatize all Black persons who successfully complete elite college and professional degrees (like himself) with the label of being an under-qualified beneficiary of unmerited admissions in the first place. Yet somehow, the fact is that successful white graduates of elite colleges like Jared Kushner (a middling prep school performer), who reportedly gained admission to Harvard due to his father’s well-timed multi-million dollar donation to that school, have suffered little apparent damage to their psyches or self- regard as a result of their privileged access (just look at the text of Kushner’s new book recounting his foreign policy triumphs without the benefit of any particular experience in that field).
The second major problem with the Barrett approach to knocking off affirmative action is that it seeks to avoid a constitutional ruling under the Fourteenth Amendment that someday might be used to challenge the many forms of “exclusive admission lane” privileges (where no others need bother apply) enjoyed overwhelmingly by wealthy white applicants, like the children of major donors. White net worth in America exceeds Black net worth by a seven to one ratio ($980,000 v. $142,0000) according to the latest available Federal Reserve calculations. Hispanics are at a six-to-one net worth disadvantage. https://www.forbes.com/advisor/investing/financial- advisor/average-net-worth/
Legacy admissions, by definition, discriminate against any ‘first generation” applicants whose parents never attended college. Early decision admissions, which along with legacies now account for a majority of admissions at many elite universities, are unavailable to children of families that must be able to bargain for financial aid to accept any offer of admission; early decision required an applicant to agree in advance to accept whatever admission offer is made (a form of the “exploding offer” employment recruiting practice that has ironically been banned at many of the same elite schools whose enrollment “yield” and bottom lines have thrived due to early decision admissions). Elite universities continue to spend far more time, marketing resources, and money recruiting rich applicants from “feeder” private prep networks and “high-performance” public high schools largely in “white” zip codes than to pursuing applicants to achieve their recently enhanced diversity goals. See Connelly, Terry. 2020. Let’s Blow up the Elite College Admissions Black Box: It’s Roiling Young Lives, Rigged for the Rich, and Wrong for America. Seattle, WA: Amazon.
The third problem and by far the most impactful danger from the far Right Wing’s literal rather than truly ‘’originalist” interpretation and application of Title VI andTitle XI is, of course, that a Court endorsement of their view would apply those statutes’ prohibitions to all but the very smallest entities in the United States that receive any federal funding for their activities: for example, public and private corporations that are government contractors: K-12 public and private schools; hospitals; nursing homes; medical practices reimbursed through Medicare and Medicaid; churches; charities of all types; state and local governments; the list is virtually endless. Under such a ruling, none of these entities could any longer engage in promotion of racial, ethnic, or national origin diversity in their activities, their workplaces, or their recruiting or hiring lest they be accused of discriminating against white people as well perhaps against Asians, given the plaintiffs’ identity in the two current affirmative action cases. No sensate person could term such a result “modest” – rather, it exceeds even the Dobbs abortion holding in its disruptive impact on American life.
There are also a couple of minefields in Justice Barrett’s approach to Justices considering whether to enshrine the most literal interpretation of Title VI to end affirmative action in that it seems clear that by its terms, states like Texas and Florida would be required to change their existing laws banning undocumented person from receiving publicly funded scholarships for the chance to attend state universities merely, but precisely, because of their national origin. Title VI protects any “person in the United States” from discrimination based on the grounds of such person’s “national origin” – there is no statutory requirement in its literal wording that the protected person be in the U.S. “legally” – perhaps Justice Barrett did not focus on that particular “plain meaning” of the Title VI text.
More broadly, an “affirmative action admission” of an allegedly under-qualified Black applicant in the “zero-sum” admissions competition literally reduces the chances of any other qualified applicant of any racial or ethnic background – white, Hispanic, Asian, or other Black applicants. How then can it be said that any such Black admission specifically discriminates only against whites, Asians, Hispanics, or any non-Black racial group specifically, as the plaintiffs in the two cases assert. The reduction of the admission odds of non-Black applicants is a result of mathematics, not their race. The Court, however, is not in a mathematical mood.
The long-standing conservative political agenda to dismantle affirmative action in all its forms has apparently produced a Court majority poised to decide that Title VI of the Civil Rights Act of 1964 was not, in the higher education setting, simply prohibiting exclusion of Black applicants solely because of their race, but also was focused on making sure that any Black person thereby made eligible for that benefit must not be allowed to take the place of an equally or better qualified person of another race. In today’s context, that reading of the law would establish a presumption that admission of any Black person in the context of a “diversity agenda” automatically constitutes illegal discrimination against white or Asian applicants. Under such a Court holding, however, Title VI would seem to require universities either to forego diversity programs in admissions, or simply stop admitting Black applicants altogether – the latter choice, of course, would be a clear violation of the true “plain meaning” of the Title VI text. This absurd result illustrates that Title VI was never designed or intended to ban efforts by private or public universities’ admissions departments to produce the type of diverse entering classes they want to signify their schools’ values, missions, and academic brands.
Noah Feldman, the Felix Frankfurter Professor of Law at Harvard Law School, has concluded in his Bloomberg column that the Supreme Court decisions in the two current cases will indeed end the “Era of College Diversity.” He expects their decisions to overturn major precedent (previously re-affirmed by the Court) “that allowed racial diversity to become an organizing principle for college admissions,” which would in due course trigger a reduction in Black and Hispanic enrollment in America’s most selective colleges and universities “perhaps by half” – and have enormous impact on the broader American culture.
“[T]he powerful ideology of diversity, which has become deeply rooted across a wide range of institutions of American life, is about to undergo radical challenge and transformation from the court.... Such beliefs infuse nearly everything done in elite US universities today, from admissions to faculty hiring to the composition of committees to curriculum itself. Conservatives, however, never fully embraced diversity. Even as some conservatives began to lobby for “viewpoint diversity” (to benefit themselves) others continued the legal push to dismantle affirmative action. On the current Supreme Court, with its 6-3 conservative majority, there are more than enough votes to achieve that goal.....
“Going forward, government entities (like state universities) would, in practice, be constitutionally barred from seeking race or sex diversity in their admissions. The Constitution only governs state action, not private actors. But the meaning of equal protection under the Constitution casts a long shadow over the meaning of anti-discrimination laws that do govern private-sector conduct. The Supreme Court will almost certainly decide in the Harvard case that Title VI prohibits affirmative action. Thus, after the decision, private universities, like public ones, will not be allowed to consider the goal of achieving racial diversity as a factor in admissions.
“....
“Although admissions officers will still be able to consider economic and class markers, like first-generation college status, those will not suffice to cover the racial gap, because most poor people in the US are White. More precise proxies, like ZIP code, will likely be rejected by the courts as race-based affirmative action by another name. In the near to medium term, then, we are likely to see a full-on oppositional struggle between at least some elite universities and the federal courts on the question of diversity in admissions. The reality of such struggles is that the courts will win in the end, because the Supreme Court will have been clear. Eventually, then, the universities will have little choice but to change their rhetoric away from an emphasis on diversity. After that, if history is any indication, the ideology of educational diversity will gradually begin to recede — the way it initially arose because of judicial blessing. It is impossible to say exactly what will replace it. But given that the belief in diversity grew from what the Supreme Court allowed diversity to do, the belief will have trouble outlasting its practical usefulness.” https://www.washingtonpost.com/business/supreme-court-will-end- the-era-of-college-diversity/2022/10/18/037c67ec-4eee-11ed-ada8- 04e6e6bf8b19_story.html
It seems appropriate that the Supreme Court will hear oral arguments on the Harvard and University of North Carolina cases on Halloween. The ghosts of slavery, segregation, the Civil Rights movement – and the Court’s precedents – will haunt the chamber, and perhaps the Justices. The outcome may be scary indeed.
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