New York Magazine: The End of Affirmative Action Is Only the Beginning

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Photo: Eric Lee/Bloomberg

By Ankush Khardori/New York Magazine

The Supreme Court has made clear, once again, that conservatives control the Court, and that they will continue their movement’s decades-long project to reverse legal precedents that they simply do not like. Last year, it was the overruling of Roe v. Wade. On Thursday, the six conservative justices held that affirmative action programs in higher education are unlawful, and in particular, that they violate the Constitution’s Equal Protection Clause.

The court for decades, as recently as 2016, had upheld college admissions programs that take race into account as one factor among many. Why this sudden change? As a practical matter, two things happened. First, a conservative activist named Edward Blum, who had been trying and failing to engineer this outcome for decades, continued his effort, this time partially reframing his crusade as an effort to combat discrimination against Asian Americans in the admissions process. And second, the composition of the Court dramatically changed after Donald Trump got Justices Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett on the bench, resulting in the majority that issued Thursday’s ruling.

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Roberts writes, “University programs must comply with [constitutional] strict scrutiny, they may never use race as a stereotype or negative, and — at some point — they must end.” Harvard and UNC’s systems, he writes, “however well intentioned and implemented in good faith — fail each of these criteria.”

Roberts proceeds to reject the idea that a racially mixed student body enhances American higher education and trains more effective and empathetic leaders in our society. Those interests, he writes, “though plainly worthy, are inescapably imponderable.”

He also takes issue with the racial classifications themselves, observing that they are “imprecise in many ways.” For instance, he argues that “by grouping together all Asian students,” the schools are “apparently uninterested in whether South Asian or East Asian students are adequately represented, so long as there is enough of one to compensate for a lack of the other.”

The purported experience of Asian American applicants figures prominently in the decision. The race-based admissions systems, he writes, also run afoul of the Equal Protection Clause because “race may never be used as a ‘negative’” and “may not operate as a stereotype,” but according to the appellate court’s ruling in the Harvard case, the college’s consideration of race “led to an 11.1% decrease in the number of Asian-Americans admitted” to the school. “College admissions are zero-sum,” he writes. “A benefit provided to some applicants but not to others necessarily advantages the former group at the expense of the latter.”

It is worth noting here that this was heavily contested by groups devoted to representing the interests of Asian Americans. In an amicus brief submitted to the Court, the Asian American Legal Defense and Education Fund wrote that Blum’s group had “not brought this case to achieve equity for Asian Americans” but instead “brought this case to make it easier for white students to get into the college of their choice,” with the lawsuit representing “a transparent effort to cling to the advantages that whites have maintained since the nation’s inception.” Blum’s group, they charged, “deploys harmful stereotypes of the Asian American community in service of eliminating policies that benefit Asian Americans and proposes a ‘race-neutral’ admissions policy that ultimately benefits white applicants.” Needless to say, the conservative justices’ opinion today does not meaningfully grapple with any of this, choosing instead to pit this group against Black applicants — the very thing that Blum hoped to achieve in framing his legal attack.

In the end, Roberts’s majority opinion concludes that both the Harvard and UNC admissions programs “lack sufficiently focused and measurable objectives warranting the use of race, unavoidably employ race in a negative manner, involve racial stereotyping, and lack meaningful end points.” “We have never permitted admissions programs to work in that way,” Roberts writes, “and we will not do so today.”

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As with the overruling of Roe, we are now sure to see a nationwide scramble to adjust to — and mitigate the fallout from — the ruling. A lot could be gained by schools ending legacy admissions either voluntarily or in response to a federal ban, but do not hold your breath: Legislative efforts in this area have recently been tried and failed, though perhaps renewed public and political attention in the wake of the Supreme Court’s decision might shift the dynamics.

In the meantime, brace yourself for the aftershocks of another legal earthquake courtesy of the Court’s conservative majority.


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