The Supreme Court Affirmative Action Decision
A limited decision with major implications
Last Friday, the Supreme Court handed down their decision in Students for Fair Admission, Inc v. President and Fellows of Harvard College. A separate case by SFSA against the University of North Carolina was combined with the Harvard Case1. The Court ruled 6-2 against Harvard2 and 6-3 against UNC.
The majority argued that the universities violated the 14th Amendment’s promise of equal treatment under the law. That, they suggested, might have been acceptable sometime in our past, but we need to be moving beyond these ideas in pursuit of a society that does not depend on race consciousness.
Clearly an important issue, six of the nine Justices wrote on the case. Chief Justice Roberts wrote the main opinion with Thomas, Gorsuch, and Kavanaugh concurring (Thomas’ concurrence is a small book). Justices Sotomayor and Jackson wrote in dissent. Reading (okay, skimming) their arguments illustrates a chasm in their understanding of race in America — suggesting major implications.
The specifics of the cases give insight into why I call it a limited decision. Harvard and UNC both receive upward of tens of thousands of applications each year and admit less than 2000. Justice Gorsuch writes that Harvard had received “60,000 applications for roughly 1,600 spots.” Neither the main opinion or the other two concurrences mention this practice, which is pretty important to the case.
If a school is to only accept 2.5% of its applicant pool, how will it do this? Both Harvard and UNC have a robust screening process following certain criteria. Once that initial screen has been done, there is a second level evaluation where race might be considered (among other factors).3 It is this latter screen that is problematic for the majority.
After recognizing that Plessey v. Ferguson was wrongly decided (small victories!), they argue that it was fixed in Brown v. Board of Education. Because Brown ruled that racial discrimination in education through segregated schools was unconstitutional, then any use of race in education would also be unconstitutional.
In the days since the decision was handed down, there have been some excellent articles underscoring how unusual the Harvard and UNC situations are. The Chronicle of Higher Education had this data visualization showing how rare it is for universities to admit such a small percentage of their students.
The New York Times had a piece by sociologists Richard Arun4 and Mitchell Stevens showing where students actually go to college. The overwhelming majority of minority and underrepresented students do not attend elite colleges5. In addition, some states have already passed legislation making affirmative action illegal in higher education. There has been a limited impact on minority enrollment numbers in those states.
Natalie Jackson, formerly of PRRI, wrote about this reality in the National Journal. In spite of the limited application of the decision to elite colleges, she analyzes polls that support diversity in higher education and those that say that the use of race should be restricted. She suggests that there may be some group self-interest in this opposition (what if I wanted to go there?). But it’s also because people are just opposed to what they hear about elite colleges (for the thousandth time — respondents don’t need to have any informed basis for the answers they give the pollsters).
I think that the polling data opposing affirmative action is based on a belief that we’re still in a quote regime; that somehow qualified white people are being refused admission in place of some number of under-qualified minority students.6
This is where the larger and long-term implications of the decision come in to play. It identifies consideration of race as an unfair selection criteria that favors minorities. But it completely ignores the ways the admissions system disproportionately benefits whites with privilege.7
Four years ago, NBC News reported on a study finding that 43% of white students admitted to Harvard were legacy students, athletes8, children of donors, or children of faculty. A complaint has now been filed regarding the use of legacy admits in light of last week’s decision. The Supreme Court majority does not seem concerned about this inequity in admissions because it is not based (directly) on race.
Singling out race as they do opens the door for attacks on any kind of racial initiative in the university. Today, Inside Higher Ed reported that the Missouri attorney general has called for the elimination of all minority scholarships. I look for similar arguments to emerge continuing the DEI attacks and broadening those to include minority majors or student life programs.
It is notable that the dissents of Justices Sotomayor and Jackson lay out the impacts of race in contemporary America and how those variables shape the likelihood of attending college and being successful once there. But the majority takes the 14th Amendment at face value and says stop.
To ignore the continuing differentials around the intersectionality of race, class, and location in search of a pristine racial blindness will limit our progress as a society. And it will feed the current state of white privilege that will coarsen our politics even further.
These two suits allowed the Court to deal with both private (Harvard) and public (UNC) institutions.
Justice Jackson had been on the Harvard Board and so recused from that case, although her dissent makes clear how she would have voted.
Justice Gorsuch was very unhappy that the racial categories in the common application (which I assume came from the Census Department) were defined by “bureaucrats” and were imprecise. He’s right on the second point, but only for some subsets of the population. He was unhappy that different types of asian Americans or Hispanics were lumped together. I’d suggest that he’s really arguing for a more concretized quota system, but I’m sure that’s not what he wants.
Arun is one of the coauthors of the excellent Academically Adrift.
In spite of this data, the elite colleges receive a hugely disproportionate share of higher ed coverage in the media.
Justice Thomas actually makes this uninformed point.
Justice Thomas offers a hypothetical where a black son of a millionaire is favored over a white student.
The Varsity Blues scandal made clear that even the athletes can show a class bias. There are not a lot of water polo teams in inner city high schools, Brown notwithstanding.