High Court’s Affirmative Action Ruling Will Benefit All Students

Reproduced with permission. Published July 10, 2023. Copyright 2023 Bloomberg Industry Group 800-372-1033. For further use please visit https://www.bloombergindustry.com/copyright-and-usage-guidelines-copyright

The US Supreme Court has ruled that Harvard University and University of North Carolina unconstitutionally discriminated against some of its applicants and in favor of others based on race. I was very likely one of the unwitting applicants caught up in this decades-long racial spoils system at UNC. And despite the Supreme Court’s historic and long overdue ruling, the bell can’t be unrung for those like me.

As a civil rights lawyer, and Black Southerner interested in our grand American experiment, I have often pondered what supreme good must exist to justify the tremendous harm of discriminating based on race. This has been the underlying justification for college affirmative action for half a century. I’m disappointed to learn in the Supreme Court’s opinion that it similarly hasn’t the foggiest. Justice Clarence Thomas, writing a concurrence, put it flatly: “Since Grutter, I have sought to understand exactly how racial diversity yields educational benefits. With nearly 50 years to develop their arguments, neither Harvard nor UNC—two of the foremost research institutions in the world—nor any of their amici can explain that critical link.”

Not to be outdone, the majority opinion listed the schools’ asserted goals served by divvying up applicants by race to include “training future leaders” and “fostering innovation and problem solving.” Although, the court admits, these goals are “commendable” and “plainly worthy,” they fail the requirement of being an “exceedingly persuasive justification” to permit racial separatism.

The failure to advance a clearly articulated, measurable, and vital reason—versus a pretty good one—for affirmative action after all these years is tragic. It’s especially awful given the well-documented harm done to all by this sort of racial discrimination. And it should be remembered that at core we’re talking about the grievous harm of pure racial discrimination, mainly directed against Asian American applicants.

My organization, the Center for Equal Opportunity, has spent over a quarter century documenting many other harms—some of which we outlined in the amicus briefs we filed in the Harvard and UNC cases. They include placing minority students in academic environments for which they are ill-prepared and therefore struggle to keep apace. That struggle leads to disproportionate dropout rates and survival tactics like changing from hard sciences majors such as physics to soft majors like sociology.

Our research, which has been directed at over 80 schools, shows that non-minority students and faculty bear costs as well reporting “unhappiness with students’ preparedness” and “the [diminished] quality of the education provided,” among other factors. One harm, too often overlooked though, is that the accomplishments of minorities are forever viewed as less than fully valid.

The presumption is that a high-achieving Black or Brown person must be a diversity hire or diversity admit. The terms convey that individuals didn’t achieve their successes solely because of their own hard work, talent, and passion—like Whites or Asian Americans must—but instead, were likely boosted past equally or better-qualified individuals because of their race. It’s no secret that the only two Black justices on the Supreme Court—Thomas and Justice Ketanji Brown Jackson—although ideologically polar opposites on affirmative action, both carry this stigma.

I don’t fault every person who thinks high-achieving Black and Brown people have illegitimately benefitted from their skin color or ancestry whether they did or not. They have good reason to think this way within a system that operates in this manner. It’s an unfair burden that certain people must carry with them through no fault of their own—simply for being born a minority in a too race-obsessed society.

Fortunately, because of the Supreme Court’s decision, students are now less likely to be the involuntary subjects of racial experimentation by colleges either directly or indirectly. As Chief Justice John Roberts wrote, “universities may not simply establish through application essays or other means the regime we hold unlawful today.” Schools will, no doubt, attempt to evade this edict to maintain its commitment to campus racial diversity, but it will be more difficult for them.

The more important thing to remember is that college admissions is a two-way street. Applicants have a choice in how they present themselves to admissions committees. I urge America’s young people—to whom we entrust every generation to carry the torch of freedom forward—not to make the Faustian bargain of sacrificing principle and dignity for the immediate benefit of racial preference.

Searching one’s life for grievance is a soul-crushing exercise. Young people should be excited and optimistic about their lives, future, and how they will change the world. Shifting our minds to focus on the negative seriously risks losing touch with the positive. Moreover, at a certain point the exercise also becomes irrelevant. Everyone, if we are willing to dig far enough back will find examples of oppression, subjugation, and wrongs perpetuated against our lineage.

Ultimately, as I can attest, whatever race preferential treatment does to set one up for opportunity or success cannot atone for delivering up in exchange your principles, your dignity, or your right to be viewed equally to all others. For those racial minorities to whom these preferences are directed, it simply adds yet another indignity to a long list.

The case is Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, US, No. 20-1199, 6/29/23.

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