Affirmative Action Ruling ‘Just the End of the Beginning’

Supreme Court sounds a knell for race-based university admissions and opens the way for the next fight — board rooms.

AP Photo/Manuel Balce Ceneta
Edward Blum at Washington in 2014. AP Photo/Manuel Balce Ceneta

“Eliminating racial discrimination means eliminating all of it.” Those are the words of the Chief Justice of the United States, John Roberts, in finding that Harvard and the University of North Carolina have — in their race-based admissions policies — been violating the Equal Protection Clause of the Constitution. The decision is a major step in redeeming America’s  constitutional commitment to a more perfect Union.

It happens that two days before the decision, we had a long and moving phone conversation with, in Edward Blum, the civil rights leader who set the winning strategy against race-based affirmative action. He is not a lawyer, just an all-American idealist. It is he who organized Students for Fair Admissions, which was the plaintiff in the cases against Harvard and the University of North Carolina. He has devoted his life to this struggle.

Mr. Blum, it turns out, was in the visitors’ seating of the Supreme Court when, in 2003, Justice Sandra Day O’Connor read from the bench the case known as Grutter v. Bollinger. That’s the one in which the Supreme Court okayed racial preferences but in which Justice O’Connor uttered the famous words: “We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.”

One of the things that clearly animated the Supreme Court’s latest decision is that 20 years later, as the Chief Justice wrote, “no end is in sight.” A pre-vision of that is no doubt what inspired Mr. Blum to organize his lawsuits designed to win the goal that was mostly achieved, and vindicated, today. We say mostly because the Court did not overturn Grutter outright, but rather reaffirmed  strict scrutiny to test how affirmative action is pursued. 

That is, as Chief Justice Roberts puts it, the justices “have permitted race-based admissions only within … narrow restrictions.” They “may never use race as a stereotype or negative” and “at some point” race-based admissions “must end.” He notes bluntly that Harvard’s and North Carolina’s “admissions systems — however well intentioned and implemented in good faith — fail each of these criteria.”

We mark those quotes from an opinion that ran to more than 200 pages because our reporting suggests there’s reason for more than a little concern. It is that leaders of our left-wing campuses might react to today’s decision the way Governor George Wallace reacted to the Supreme Court’s desegregation decisions. He stood  in the doorway of the University of Alabama and vowed “segregation now, segregation tomorrow, segregation forever.”

Chief Justice Roberts acknowledged that colleges could try to evade today’s ruling by using, as suggested in Justice Sonia Sotomayor’s dissent, “holistic” factors like social status as proxies for race. Colleges, he wrote, “may not simply establish through application essays or other means the regime we hold unlawful today.” He noted, too, that a dissent “is generally not the best source of legal advice” for adhering to “the majority opinion.”

Harvard, in its statement, did not threaten to continue race-based affirmative action that violates the equal protection clause of the Constitution. “We will certainly comply with the Court’s decision,” Harvard’s president, Lawrence Bacow, cabled. There’s a lot of room for slippage, though, even with strict scrutiny. Our own hope is that Harvard will come to embrace not only the letter of strict scrutiny but the spirit of the court — and lead.

Which brings us back to the civil rights leader who delivered this day, Edward Blum. When we spoke earlier this week, we asked him what a victory in the case would mean. “If we win this,” he said, “this is just the end of the beginning.” His Alliance for Fair Board Recruitment, the Financial Times reports, has already sued California and the Securities and Exchange Commission over rules for racial and other diversity on corporate boards.

We would like to think, finally, that this broad campaign is a route to a happier nation. Grutter and the other early cases that countenanced racial preferences not only failed to solve the problem of racial bigotry but they satisfied neither side. This is not a Democratic/Republican thing. Nearly 60 percent of Democrats, the New York Times reports, oppose race as a factor in college admissions. Let today’s ruling help bring us together.

The New York Sun

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