What to Expect from the Supreme Court’s Affirmative Action Decision

The Supreme Court’s decision last month in Students for Fair Admissions v. Harvard College and its companion lawsuit against the University of North Carolina, ruling that the use of racial preferences in college admissions is unconstitutional and illegal, was a victory not just for fairness in college admissions, but also for the principle of equal justice under law and the goal of making our political order color-blind.

For too long, courts allowed institutions of higher education to employ arbitrary admissions criteria in the name of a principle introduced by the late Justice Lewis Powell, “diversity.” It was an open secret ever since California v. Bakke (1978) that “diversity” was just a code word for prioritizing admissions to favored “minorities” (blacks and Latinos) over less-favored minorities (Asians) and whites, even when the academic qualifications of many members of the latter groups, measured by SAT scores and school records, objectively exceeded those of their competition.

However, those who expect the Court’s recent decision to effectively end the use of racial preferences in admissions to selective colleges may be overly optimistic. Despite the ruling, ideologically driven admissions officers are likely to continue employing racial preferences in their work anyway, particularly in light of a loophole left open by Chief Justice Roberts in his otherwise admirable opinion on behalf of a 6-3 Court majority.

This is not to deny that the ruling was impactful. Speaking for the majority, Roberts’s opinion constitutes a resounding rejection of the infamous conclusion of Justice Harry Blackmun in Bakke that “in order to get beyond racism, we must first take account of race… And in order to treat some persons equally, we must treat them differently.”

Elaborating on his previous response to Blackmun’s claim, observing, that “the way to stop discriminating on the basis of race is to stop discriminating on the basis of race,” Roberts held in Fair Admissions that the system of racial preferences in college admissions must be abolished in its entirety, not just partially. Calling attention to Justice Sandra Day O’Connor’s prediction in the 2003 Grutter case, which upheld race-based admissions at the University of Michigan Law School, that the need for such preferences should end by 2028, Roberts observed that the demand for race-based admissions criteria had only increased with time.

The statistics cited in the majority opinion belie any claim that race is just one of a variety of factors in determining who gets admitted to Harvard. “[A]n African American [student] in [the fourth lowest academic] decile has a higher chance of admission (12.8 percent) than an Asian American in the top decile (12.7 percent), a report cited by the opinion states. Meanwhile, “black applicants in the top four academic deciles are between four and ten times more likely to be admitted than Asian-American applicants in those deciles.”

Further confirming the majority’s holding is the remarkably consistent proportion of Asian-American members of Harvard’s freshman class from year to year (about 20 percent) – a consistency unlikely to be achieved as a consequence of weighing all applications on the basis of individual merit.

Especially noteworthy is the 60-page concurring opinion by Justice Clarence Thomas, who warns against relying on “experts” who explain how racially discriminatory policies are “helpful” if they serve supposedly benign aims. Like Roberts, Thomas stresses that “helping” one favored group necessarily harms others (Asian-Americans today; a century ago, Jews, whom Harvard limited to a set quota starting in the 1920s).

Far from promoting racial harmony, Thomas observes, favoring some groups over others on the basis of their skin color, religion, or ethnicity engenders resentment by the losers from these policies – while also encouraging the same feeling among successful African-Americans who fear that their accomplishments, in college and in life, are regarded as suspect, or unearned.

Following an “originalist” reading of the Fourteenth Amendment intended to show that government-sponsored favoritism toward any racial group violates the intentions of the Amendment’s writers, Thomas also challenges the claim that discrimination on the basis of race promotes the educational goal of promoting the exchange of diverse viewpoints. As he notes, “It is not clear how racial diversity, as opposed to other forms of diversity, uniquely and independently advances” Harvard’s educational aims, since the university “blinds itself to other forms of applicant diversity, such as religion.”

After all, Thomas remarks, “two white students, one from rural Appalachia and one from a wealthy San Francisco suburb, may well have more diverse outlooks… than two students from Manhattan’s Upper East Side attending its most elite schools,” of whom one is white and the other black. Similarly, while UNC justifies its race favoritism by claiming that it trains students to “live together in a diverse society,” it “offers no reason why” that goal “would not be equally supported by admitting individuals with diverse perspectives and backgrounds, rather than varying skin pigmentation,” and thus without promoting racial division. Indeed, its current program “overinclusive,” providing “the same admissions bump to a wealthy black applicant” as to one from a poor family.

Additionally, Thomas makes the important point that affirmative action policies “do nothing to increase the overall number of blacks and Hispanics able to access a college education,” but “simply redistribute individuals among institutions of higher learning, placing some into more competitive institutions than they otherwise would have attended.” As a result, those policies place at least some blacks and Hispanics “into environments where they are less likely to succeed academically relative to their peers,” quite likely as a result of inferior secondary-school education, as noted by the social scientist Thomas Sowell, and in the 2012 book by Richard Sander and Stuart Taylor, Mismatch: Why Affirmative Action Hurts Students It’s Intended to Help, and Why Universities Won’t Admit It.

 Elaborating this point, Thomas cites other scholarship indicating that racial preferences may hamper their ostensible beneficiaries from passing the bar exams, and that “those students who receive a large admissions preference are more likely to drop out of STEM fields than similarly situated students who did not receive such a preference.”

In other words, had minority students chosen to attend colleges where the level of instruction was more in line with their educational background and capacities, they would have been more likely to pursue careers in science, medicine, or engineering rather than to give up and choose a less demanding course of study.

A 2016 Wall Street Journal study showed that STEM majors who attend prestigious, expensive colleges earn no more on average than those who graduate from less costly ones: both groups do quite well. Additionally, Thomas notes, despite state bans on race-based admissions in California and Michigan, both states have boasted of recruiting extraordinarily diverse classes in their public university systems as a whole.

Thus, Thomas observes, it seems that universities that persist in relying on racial preferences are actually ignoring the academic underperformance of their purported ‘beneficiaries.’ Rather than fulfilling their academic mission, the schools may be seeking “only a facade—it is sufficient that the class looks right, even if it does not perform right.”

It should be borne in mind that according to the Times, fewer than 200 selective universities practice “race-conscious” admissions, conferring degrees on 10,000-15,000 students who might not have been accepted otherwise. Again, for the “elite” schools, it’s all about the image.

Finally, Thomas argues, large racial preferences in college admissions “‘stamp [blacks and Hispanics] with a badge of inferiority,’” by “tainting” their individual accomplishments as if they must have resulted from race favoritism. These concerns were echoed in a New York Times column this month by the elite black ballet dancer Gabe Stone Shayer, who laments, “emphasizing my race before my skill infantilizes me” and contends that many “white” institutions that purport to advance blacks to compensate for past oppression are really motivated by concern for their own “egos” and “dollars.”

While I cannot here take up the vehement dissenting opinions in the Fair Admissions case, including one which Justice Sonia Sotomayor read from the bench to express her anger, one objection the dissenters raise merits particular attention: the fact that the majority excluded America’s service academies from the ban, given the distinctive national security interests they present.

Contrary to Sotomayor, this exclusion is not arbitrary or hypocritical. Training future military officers is at least as much a matter of morale as of book-learning. Given the unique situation in which officers are placed, calling on their subordinates to risk their lives on their country’s behalf, such obedience may be promoted if enlisted personnel and junior officers perceive military leaders as including a significant percentage of individuals sharing visible racial characteristics with themselves, as well as being inspired by the rise of members of their racial groups to positions of high command.

Surely, no such incentives are needed to encourage minority members to work harder at civilian jobs, so long as the possibility of promotion (and financial gain) is available. It is for such reasons that the great political scientist James Q. Wilson, otherwise a critic of racial preferences, allowed that they may be necessary in police recruitment, lest populations among whom police may need to exercise force lose confidence in their trustworthiness.

But there is another qualification to Roberts’s opinion that, necessary though it may be, leaves the door open to a near-overcoming of the Court’s decision. He explains that while admissions decisions based chiefly on an applicant’s race are unacceptable, nothing in the decision “prohibits universities from considering an applicant’s discussion of how race affected the applicant’s life, so long as that discussion is concretely tied to a quality of character or unique ability that the particular applicant can contribute to the university.”

But who decides how an applicant’s mention of his race in his college essay meets that qualification? Admissions officers at elite colleges are already on to the game of giving race a heavy weight in reading college essays while pretending not to. And so are professional “advisers” to college applicants (for those whose parents can afford to hire one).

College essays have become all the more important as a criterion for admissions as elite colleges eliminate the requirement that applicants take the SAT or ACT tests, which are neutral with regard to race or economic status, and provide an objective measure of scholastic aptitude that class rank alone cannot offer, given the wide variety in the level of competition among different high schools.

A recent Times op-ed by Tyler Austin Harper, now a professor, titled “I Prepped Elite College Applicants. Here’s How the Game Is Played” describes this phenomenon. While in graduate school, Harper spent several summers helping Asian-American kids, many of whom had friends who’d been rejected “by even their safety schools” despite “sterling test scores” and extracurriculars, make their application materials “seem less Chinese or Korean.” He also assisted “rich white kids… to seem less rich and less white,” and black kids, conversely, “to make sure they came across as Black enough,” as Latino and Middle Eastern counterparts did likewise.

In sum, there is good reason why (as another Times story reports) “Worries Persist for Asian Americans After the Ruling on Affirmative Action.”

As one such student from a top Virginia high school put it, “College admissions has really dipped into this fad of trauma dumping.” Another, who made it into Georgetown with the aid of an application essay about her parents’ hard work in response to a query about “diversity,” remarked that to be admitted to a selective college, “You accept that you have to sell some kind of story in order to appeal to this audience” of admissions officers.

Indeed, a new book by the Indian American Vijay Jojo Chokal Ingam titled Almost Black: The True Story of How I got into Medical School by Pretending to Be Black, describes how feigned blackness enabled the author to win admission to med school despite a mediocre 3.1 GPA – only to drop out when he found the curriculum too demanding, having effectively taken a place from some more competent applicant.

So Asian-American worries are not ill-founded. As yet another Times column, by Berkeley’s undergraduate admissions director, explains, besides doing (perfectly legitimate) outreach work, visiting high schools that weren’t previously on the university’s list and “providing college counseling in underserved high schools and community colleges,” he has boosted its minority enrollment by offering admissions staffers with regular “bias training” and trained them to “humanize” applicants to bring out “different versions of excellence.” It isn’t hard to sniff race-based preferences in these policies, they’re just going by a different name.

Those who yearn for the restoration of a merit-based admission system for America’s leading academic institutions, which will take account of students’ various personal backgrounds while motivating them to work hard, rather than training them to play the race card, should certainly be encouraged by this decision—but the battle is not won just yet. A long haul still remains.

David Lewis Schaefer is a Professor of Political Science at College of the Holy Cross.