Paul L. Caron

Monday, October 31, 2022

Perspectives on Today's Supreme Court Oral Arguments In The Harvard And UNC Affirmative Action Cases

David French (The Dispatch; J.D. 1994, Harvard), Racial Discrimination Is Not the Path to Racial Justice: Why Harvard Is Wrong:

[Today] the Supreme Court will hear oral arguments in the most important case of this term, a case which is arguably among the most important of this new century. It will decide whether schools can continue to discriminate on the basis of race in college admissions.

The Supreme Court should say no. It should say no because the law should compel it to say no. We should cheer that outcome because morality and justice are in harmony with the law. Racial discrimination is in fundamental tension with racial justice, even when racial discrimination is purportedly designed to advance racial justice. ...

The moral necessity of ameliorating the effects of centuries of discrimination is clear; the method for doing so is not. But here’s one principle that should guide our nation’s response: The wounds caused by racial discrimination can’t be healed by racial discrimination.

Indeed, when it comes to American education, that is exactly what the plain letter of the law requires. Here’s the text of the Title VI of the Civil Rights Act of 1964, a law that applies to every educational institution in the United States that receives federal funding:

No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.

Clear enough, right? This is the legal mandate to end programs and practices that systematically disadvantaged Americans on the basis of nothing more than the color of their skin. And yet the Supreme Court has rejected that language. It has declared—in cases stretching from 1978’s University of California v. Bakke to 2003’s Grutter v. Bollinger to 2013’s Fisher v. Texas—that universities can take race into account in admissions decisions without violating the Civil Rights Act or the Equal Protection Clause of the Fourteenth Amendment.

They can’t impose strict racial quotas, and they can’t (in theory) use race against any applicant, but they can consider race as one part of an allegedly “holistic” admissions review. The Court has held that there is a “compelling governmental interest” in academic diversity, and racial considerations are one way to advance that interest.

But how has that system worked in practice? As Richard Kahlenberg argued last week in The Atlantic, universities are keeping a “dirty secret.” Racial preferences “provide cover for an admissions system that mostly benefits the wealthy.” In other words, the universities preserve a longstanding status quo that privileges those individuals—legacy admittees and children of donors, for example—who preserve the university’s wealth and power while using race preferences as a blunt instrument to render universities “diverse” along racial lines only. ...

Harvard has a better story than many American institutions, but it wasn’t a perfect story then, and it’s not a perfect story now. It has an institutional responsibility to end racial discrimination, and if it won’t do it voluntarily, then it’s up to the Court to compel compliance with the clear commands of American law. We will never achieve racial justice so long as racial discrimination is still allowed in our land. 

Lee C. Bollinger (President, Columbia; Co-Author, A Legacy of Discrimination: The Essential Constitutionality of Affirmative Action (Oxford University Press 2023)) & Geoffrey R. Stone (Chicago; Co-Author, A Legacy of Discrimination: The Essential Constitutionality of Affirmative Action (Oxford University Press 2023)), The End of Affirmative Action Would be a Disaster:

In 1961, at the height of the civil-rights era, President John F. Kennedy signed an executive order designed to improve access to opportunity for Black Americans. Government contractors were compelled to “take affirmative action to ensure that applicants are employed, and employees are treated during employment, without regard to their race, creed, color, or national origin.” Six decades on, Americans remain divided over affirmative action. Some believe we do not have enough of it; others believe we have too much of it. And now the debate is about to get even more contentious.

Today, the Supreme Court will hear opening arguments in two affirmative-action cases: Students for Fair Admissions v. Harvard and Students for Fair Admissions v. University of North Carolina at Chapel Hill. The first case contends that Harvard’s race-conscious admissions policy violates Title VI of the Civil Rights Act of 1964. The second case alleges that UNC unconstitutionally favors Black and Latino students over others in its admissions process, violating the Fourteenth Amendment’s equal-protection clause, which prohibits selective denial of rights on the basis of race.

The cases represent a standoff between those who insist that the college-admissions process should essentially be limited to quantitative metrics, such as grades and test scores, and those who believe grades and test scores should be one of many factors in the admissions equation—along with leadership qualities, personal talents, race and ethnicity, and family circumstances. Ostensibly, the conflict between these opposing viewpoints was resolved two decades ago in the 2003 Supreme Court decision that bears one of our names, Grutter v. Bollinger—which held that the University of Michigan’s law-school-admission policy was constitutional because it was narrowly tailored to serve the compelling interest of attaining a diverse student body. Grutter was a landmark decision on affirmative action in higher education: It was the first case in which a majority of the Court adopted a unified position holding affirmative action to be constitutional under the Fourteenth Amendment. But, as the upcoming cases attest, as a matter of legal interpretation, disagreement continues between those who aspire to absolute color blindness and those who defend the need for fostering a racially and ethnically fair learning environment.

A core element of this debate hinges on the notion of what constitutes “diversity” in contemporary America. In 1954, when Brown v. Board of Education compelled the desegregation of American schools—and sought to integrate American society—racial inequality in the U.S. was literally a black-and-white issue: 89 percent of the country was white, and 10 percent was Black. Today, white, Black, Asian American, and Latino students vie for admission alongside students from around the world. Some students—regardless of ethnicity—are privileged; others are disadvantaged.

Against this backdrop, we contend that Black students remain particularly and egregiously disadvantaged. Further, we contend that we need affirmative action now more than ever precisely because of today’s increased demographic complexity. If we do not redouble our commitment, Black students won’t just remain at the back of the line in American life; they will be pushed even further back.

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