Affirmative Action After the Court’s Abortion Decision

Buried in the leaked Supreme Court draft abortion opinion, Justice Samuel Alito discusses “workability.” He explains the court should consider reversing even longstanding precedents that are unworkable, i.e., that fail to set a standard “which can be understood and applied in a consistent and predictable manner.” This is significant for what it signals about other cases as well. Next term, the court will hear challenges to admissions policies at Harvard University and the University of North Carolina. Nothing is more unworkable than the Supreme Court’s affirmative action jurisprudence.As the Education Department’s top civil rights enforcer during two presidential administrations, I participated in a system of jarring changes as successive administrations lurched repeatedly in conflicting efforts to administer the Supreme Court’s affirmative action precedents, such as Grutter v. Bollinger.It is one thing to see shifts in presidential policy priorities, it is quite another for federal agencies to interpret the same cases differently. This creates regulatory “whiplash,” undermining universities’ ability to adopt long-term plans, as former civil rights officials (myself included) recently explained to the court. As the Harvard case demonstrates, elite universities have taken Supreme Court decisions as a license to conduct racially preferential admissions decisions — an approach three-quarters of Americans consider wrong, according to the latest Pew Research Center survey. While current law permits some consideration of race in admissions, it also contains important limitations that some colleges ignore, minimize, or sidestep. Asian groups have shown that this leads to blatant discrimination. Others argue this harms African American and Hispanic students, who do not always benefit from the well-intentioned plans of white administrators.Educators are not entirely to blame. Higher education is highly regulated. Administrators respond to directives from Washington. Given the Supreme Court’s current doctrinal backdrop, however, those dictates have been erratic, contradictory, and unpredictable.During the George W. Bush administration, our office emphasized the limitations the Supreme Court placed on racially preferential university policies. These included limitations on the purposes for which race-conscious actions may be taken and the extent college policies must be tailored to those ends. The Obama administration, however, interpreted the same cases differently, urging educators to use racially preferential policies more vigorously in admissions, scholarships, and mentoring. During my second tenure as civil rights chief, the Trump administration returned to Mr. Bush’s emphasis on race-neutral alternatives. Last year, the federal government flipped back to Mr. Obama’s approach.Not only colleges but also some public high schools are now basing admissions decisions on racial politics. For example, the Fairfax County Public School Board recently overhauled admissions at the elite Thomas Jefferson High School to achieve a different racial balance. The student body was approximately 80 percent minority, but the minority students were mostly Asian. The overhaul was ruled unconstitutional, but the case is pending appellate review.All of this suggests the Supreme Court’s affirmative action jurisprudence has been unworkable from a legal perspective; it does not mean, however, colleges are not reaping the benefits. That is not to say they have achieved true racial integration or the educational benefits thought to flow from racial diversity, which they arguably have not. Nor is it to say they have provided net educational benefits to racial minority students, also disputed. None of these goals, however, motivated the architects of the admissions systems at Harvard and other elite institutions. Rather, as the Louis D. Brandeis Center has explained to the court, the goal is to limit specific, disfavored minority groups. Specifically, Harvard’s system, designed to limit enrollment of Jewish students, is now used to exclude Asians.A century ago, Harvard’s president, A. Lawrence Lowell, began the process by which merit was supplanted as the sole admissions criterion. His concern was that Harvard had too many undesirable Jewish students. In 1926, Harvard began introducing admissions practices to reduce Jewish enrollment, including athletic considerations, geographic preferences, legacy advantages, and subjective character criteria. All of these pillars of “holistic review” were intended to limit the admission of Jews, stereotyped as unathletic Northeasterners lacking in character. While Harvard’s current leadership may not be trying to limit Jews, they maintain a system designed with that intent. A century later, this system — now widespread throughout academia — has the continuing effect of limiting Asians, who are stereotyped in similarly offensive ways.In other words, the problem with higher education’s admissions is the opposite of the problem with the Supreme Court’s cases. The court’s current jurisprudence may not be working, but the dominant collegiate admissions system is working all too well. Worse, that system is working in ways civil rights laws were supposed to deter, i.e., by elevating racial prejudice over individual merit. Neither Congress nor the president, alone, can fix this. The Supreme Court got us into this mess; now it must get us out.

Affirmative Action After the Court’s Abortion Decision

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