History is made by inches. A bit just got made. The US Supreme Court, in Students for Fair Admissions v. University of North Carolina, ruled that racial preferences in college admissions are done. In short, they violate the Constitution’s equal protection clause, and are unconstitutional.
With a companion case against Harvard brought by Asian students, the Court officially ended the use of skin color in college admissions. While appropriate and long anticipated, the rulings are more limited than many may understand, on both sides of the affirmative action question.
First, while merit is now central for college admissions – legally, morally, and for equal treatment – colleges may still consider race in individual cases, assuring an applicant who suffered discrimination is not overlooked. While subject to abuse, this is appropriate.
Second, expect surrogate standards to pop up at progressive universities, such as “class-based” assessments, using economic status as a quiet stand-in for race-based admissions, itself racist.
On one hand, advocates of “pure merit” as the decider of admissions will reject this idea – but what is “pure merit?” The answer is subjective. How someone performs academically or athletically is affected by the conditions under which they perform. Conditions must be considered.
On the other hand, those who bemoan an end to race as part of the admissions process must know that, based on national demographic data, race and economic conditions often overlap. Considering economics will favor those who have had fewer opportunities, often minorities.
Accordingly, those who deserve opportunities but have missed them through economic hardship may continue to diversify campuses, since some students admitted on economic condition will be a minority.
Third, in many ways, these cases missed an opportunity to speak more clearly. Martin Luther King – and the framers of the nation’s anti-workplace discrimination laws and 1964 Civil Rights Act – never saw affirmative action to prevent workplace discrimination, let alone in education, as permanent.
They saw a future in which race was less and less important, education and workplace opportunities expanding, until merit – or, to borrow King’s phrase, “the content of their character” – was the deciding factor, not skin color.
While recent years have seen a resurgence of racial tension, fanned by some political actors, the reality is opportunities in both the workplace and education have grown exponentially, objectively elevating those previously disfavored.
While diversity of thinking, ideas, opinions, debate, and moral positions on campuses has fallen, and faith-based, traditional, and smaller government thinkers bear the brunt of reduced free speech, “color diversity” has grown.
Ironically, Martin Luther King did not advocate a permanent race-based system, nor any permanent favoring of black citizens in the workplace or education, but a genuinely level playing field, the “American Dream” for all.
Missed by these decisions, majority written by Justice Roberts, was a chance to put an end to consideration of skin color as a basis for merit-based decision-making in education or hiring, a formal “overruling” of preferences.
What Roberts wrote instead was that the colleges had “concluded, wrongly, that the touchstone of an individual’s identity is not challenges bested, skills built, or lessons learned but the color of their skin… Our constitutional history does not tolerate that choice.” This is good as far as it goes, levels the field, speaks to competition on merit not race, but could have been clearer.
Justice Roberts sidelined current affirmative action as a failed standard, saying colleges’ use of preferences “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.”
Dissenters claimed the rulings “roll back progress.” The reverse is probably more accurate; they acknowledge progress, putting a new marker in the ground, a fresh standard by which the nation assures maximum opportunity.
Notably, Justice Thomas wrote that past decisions allowing racial preferences in education are “effectively overruled,” but the majority did not go that far, instead allowing ambiguity – sure to be litigated.
Finally, what the decisions did do – arguably the most important aspect – is to end negative use of race in admissions. Race can no longer be a determinant when two students are equally qualified. Race cannot block an Asian or Caucasian applicant from admission based on their race.
Ultimately, the Supreme Court is signaling something overdue, and worth reading closely. Race, despite objections by Justices Jackson and Sotomayor, should not be a basis for assessing merit, judging a student’s potential, abilities, or foreclosing opportunities. Affirmative action, valuable in its time, imposed a lasting taint or question about those favored. That is now gone.
In the end, the creators of affirmative action wanted a level playing field, one that gave all workers – and students – an equal chance at success, faithful to the equal protection clause in the 5th and 14th amendments. These cases take us closer.
What we admire and sometimes disdain is the pace of change slowed by three branches of government, constitutional checks and balances, conflicting private, state and federal priorities, tension between maximizing liberty and equal opportunity for all. History is made by inches – but we just made some. Racial preferences in college admissions are done.
Robert Charles is a former Assistant Secretary of State under Colin Powell, former Reagan and Bush 41 White House staffer, attorney, and naval intelligence officer (USNR). He wrote “Narcotics and Terrorism” (2003), “Eagles and Evergreens” (2018), and is National Spokesman for AMAC.
