The U.S. Supreme Court decision barring the use of race as a criterion for college admissions rights a wrong, according to proponents of the ruling, rather than perpetuating a historic injustice, as critics have claimed.
The 6–3 decision in Students for Fair Admissions Inc. v. President and Fellows of Harvard College reconstituted a strict interpretation of the 14th Amendment, making it clear that equal treatment under the law bars discrimination based on race, even when that discrimination favors minorities.
That’s a step backward, critics say.
“The Supreme Court’s ruling on affirmative action programs is a historic civil rights setback,” Domingo García, president of the League of United Latin American Citizens, wrote in a June 29 statement.
“This decision could make it significantly more difficult for minorities, particularly low-income first-generation Latino and DREAMER students, to enter higher education institutions. It puts them at an immense disadvantage and perpetuates societal inequality and injustice.”
Others heralded the court’s decision as a return to the original intention of the 14th Amendment to the Constitution, which guarantees equal protection under the law for all citizens, regardless of race.
“The Supreme Court firmly rejected the practice of using race as a factor in university admissions,” William Jacobson, founder of EqualProtect.org and professor of law at Cornell University, told The Epoch Times. “Each individual is entitled to be considered for his or her inherent worth and talents, and race cannot play a role in that evaluation.”
The case centered on the admissions practices of Harvard University and the University of North Carolina. The court found that Harvard’s practices discriminated against students of Asian origin by giving preferential consideration to black, Hispanic, and Native American students.
Colorblind Policies
In his concurring opinion, Justice Clarence Thomas quoted 19th century Rep. John Lynch (R-Miss.), writing that “the duty of the law-maker is to know no race, no color, no religion, no nationality, except to prevent distinctions on any of these grounds, so far as the law is concerned.”Affirmative action had been allowed under the premise that race-based distinctions were permissible to create a diverse student body to enhance the college learning experience.
“What the Supreme Court said is that no, that’s not correct at all,” GianCarlo Canaparo, a senior legal fellow at the Heritage Foundation, told The Epoch Times.
“Racial diversity ... at least the way that the universities use it, is not at all related to genuine diversity,” Canaparo said. “Racial categories are arbitrary in the extreme. And to the extent that Harvard sees a relationship between what somebody looks like and what they think, that is based on a stereotype.”
Racial categories are gross oversimplifications of broad populations and cultures, according to Wai Wah Chin, an adjunct fellow at the Manhattan Institute.
“What on earth are we talking about when we say ‘Asians?’” Chin said in an online discussion of the Supreme Court’s decision hosted by the Foundation Against Intolerance and Racism (FAIR) on June 29.
“The term ‘Asians’ is so diverse—when we talk about so many different languages, religions—of people’s histories, of people who have been fighting each other. Just talking about South Asians, you’re talking about over a billion people. ... And within those countries themselves, they’re very diverse.”
The court decision should force universities to return their attention to individuals, according to Chin.
“We’re talking about kids; we’re talking about individual applicants. And when we minimize and dehumanize our applicants by making them primarily a racial instrument, I think we’re doing an injustice to our whole community.”
Solving the Deeper Problem
With affirmative action no longer an option, proponents of the decision believe that colleges, along with other institutions, will be forced to try more effective solutions to the problem of academic underachievement by minorities.
The societal question, according to Canaparo, is: “What is the cause of persistent racial disparities? And what is the cure?”
He and others believe that the cause of the disparity is more comprehensive than individual or societal racism, so therefore, the cure must be something beyond tipping the scale in favor of one race or another.
“That is wrong as a matter of morality, and it’s wrong. As a matter of fact, that is not how discrimination is cured. That is not how disparities are cured. The remedy can’t be the same as the disease,” Canaparo said.
Affirmative action hasn’t worked, according to Wilfred Reilly, assistant professor of political science at Kentucky State University.
“By the time you get to college, it’s too late,” Reilly said during the FAIR forum. “We’re using the wrong tool to remedy other social ills. Nobody’s saying that everything’s hunky-dory and we live in a utopia—whether it’s K–12 education or family formation or issues with criminal justice, or anything else—but affirmative action is not the right tool to fix those problems.
“Admitting more mediocre kids of black doctors is not going to remedy the ills of the underclass.
Chin said, “We should be thinking about incentives and policies that will make sense for education at an early level, the family formation,”
Reducing achievement standards has the opposite effect, she said. All children should be held to high standards.
Just the Beginning
While affirmative action has been disallowed by the high court, admissions practices of colleges and universities will likely still aim to create a racially diverse student body.Shortly after the June 29 Supreme Court ruling, Harvard released a statement reaffirming its commitment to diversity.
Seizing upon one statement in the decision, Harvard stated, “The Court also ruled that colleges and universities may consider in admissions decisions ‘an applicant’s discussion of how race affected his or her life, be it through discrimination, inspiration, or otherwise.’ We will certainly comply with the Court’s decision.”
President Joe Biden announced an initiative to promote educational opportunities and diversity on college campuses.
“The president is calling on colleges and universities, when selecting among qualified applicants, to give serious consideration to the adversities students have overcome, including: the financial means of a student or their family; where a student grew up and went to high school; and personal experiences of hardship or discrimination, including racial discrimination, that a student may have faced,” the White House said in a statement.
More legal battles are likely to follow, according to Ilya Shapiro, a senior fellow and the director of constitutional studies at the Manhattan Institute.
“This is not the end, it’s probably the end of the beginning over the legal fight. There’s obviously more policy skirmishes [to come],” Shapiro said during the FAIR forum.
Canaparo also believes more lawsuits are coming as schools look for workarounds to the Supreme Court’s decision by using ZIP codes, the high school from which a student graduated, or some other factor as a race indicator. He said the courts hadn’t looked favorably on schools that use a race-neutral indicator that produce a race-conscious effect.
“It’s not clear yet whether that framework will apply directly to universities, but that I see is sort of the next frontier in litigation,” he said.
