An Affirmative Action Speed Trap?

It may be too soon to predict how the Supreme Court will rule in the affirmative action cases involving Harvard and the University of North Carolina. It’s not too soon to wonder what’s going to happen if the Nine rule against racial preferences. Would Harvard and North Carolina resist, like the southern governors once did in the face of integration? Could the Supreme Court order them to move at a faster pace than “all deliberate speed”?That’s the formulation the unanimous justices used in ordering the desegregation of American schools in respect of Brown v. Board of Education. Yet the phrase was first used in a case from 1912, where Justice Oliver Wendell Holmes wrote that a “State cannot be expected to move with the celerity of a private business man; it is enough if it proceeds, in the language of the English Chancery, with all deliberate speed.” Chief Justice Warren’s wording, though, was known to poets if not justices. Francis Thompson, in his “Hound of Heaven,” wrote, “But with unhurrying chase / And unperturbed pace / Deliberate speed, majestic instancy.” Sir Walter Scott and Lord Byron also deployed the phrase. Its roots snake back to the Latin festina lente, or “make haste slowly.” In 1969, the court shifted gears and finally ordered a school system to move “at once.”We recall this history now because the Supreme Court could have another slow-motion clash on its hands if it rules that the use of race in college admissions is unconstitutional. It might turn out to be, of course, that the Supreme Court will not decide against the way Harvard has been treating Asian-American applicants and how North Carolina weighs various groups. Both schools have prevailed in lower courts. The oral arguments at the Supreme Court, though, disclosed a good deal of skepticism among the justices in respect of affirmative action. That was true of both Harvard University and North Carolina. Since the arguments, a number of universities appear to be moving to blunt or evade a possible holding requiring them to change their policies. So it’s none-too-soon to be thinking how this issue might play out if the Nine rule against the schools.The issue was touched upon in oral argument, in reference to the common application. That process offers students the opportunity to identify themselves by race. Justice Ketanji Brown Jackson asked “do we have a constitutional violation just because the student voluntarily said I’m an African American, but that never comes into play?” The majority could well answer in the affirmative, in which case new forms would probably need drafting. Even before a decision comes down, one scholar, Lauren Foley, has found that in states where affirmative action is already banned, “universities followed the letter of the law but aggressively pushed to thwart its spirit” through a range of stratagems. Writing in our pages, Betsy McCaughey, a Ph.D. in constitutional history, notes how colleges — Columbia is the latest — have ditched “merit for diversity,” by no longer requiring standardized testing. The dean of University of California, Berkeley’s law school, Erwin Chemerinsky, a liberal lion, allowed to the New Yorker that “what colleges and universities will need to do after affirmative action is eliminated is find ways to achieve diversity that can’t be documented as violating the Constitution.” That will take a “concerted effort” to find “proxies for race.” He points to states like his own, whose legislatures have banned affirmative action. The search for proxies is likely already underway. The wave of defections from the U.S. News & World Report rankings appears to signify a repositioning so as to fly under the radar. Harvard, for one, has long resisted disclosing its methods for selecting incoming classes. An “all deliberate speed” standard would allow only further obfuscation. If affirmative action and other forms of discrimination are to end, it best be “at once.”

An Affirmative Action Speed Trap?

An Affirmative Action Speed Trap?

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