In 1978, the Supreme Court ruled that colleges may use race as a factor in student admissions, so long as they avoid numerical racial quotas. In 2003, and again in 2016, the Court upheld the constitutionality of preferences to achieve a racially diverse student body. Yet the Court has never seemed entirely comfortable with race-based admissions, for under-standable reasons. Counting by race violates the prin-ciple of a colorblind Constitution. It’s contrary to the 14th Amendment and to the Civil Rights Act. It’s unfair and unjust and it often hurts the very people it is trying to help.
The Court’s near half century of discomfort with racial preferences is no secret. Its decisions on the matter have been filled with phrases, such as “narrowly tailored” and “limited in time,” that seem like constraints but only raise more questions. There have been moments when the Court has thrown up its hands and wished the entire problem would just disappear. “We expect,” wrote Associate Justice Sandra Day O’Connor in Grutter v. Bollinger (2003), “that 25 years from now, the use of racial preferences will no longer be necessary to further the interest [in diversity] approved today.”
Well, time’s up. On October 31 the Supreme Court heard arguments in Students for Fair Admissions v. Harvard and Students for Fair Admissions v. University of North Carolina. Like before, the Court will decide whether the schools discriminated against applicants when determining the makeup of incoming classes. Unlike before, however, the plaintiffs are nonwhite. They are Asian American.
Also, unlike before, the Court is not expected to be mealy-mouthed when it issues its judgment. “Supreme Court Seems Ready to Throw Out Race-Based College Admissions,” read the headline in the New York Times on the day after the summary of arguments. Hardly anybody in Washington believes that race-based college admissions will withstand the Court’s 6–3 conservative majority. The math simply isn’t there. Chief Justice John Roberts, a crucial swing vote, is a noted skeptic of racial preferences. Color-conscious affirmative action’s days are numbered, in other words. And another decades-old precedent may soon be overturned.
Liberals aren’t happy. Long ago they abandoned the pursuit of racial equality for racial “equity”—where, in the words of Vice President Kamala Harris, “we all end up in the same place.” Color-consciousness is an essential part of this worldview. Outlawing affirmative action, after all, would shift decision-making power from Diversity, Equity, and Inclusion officers to measures of attainment such as grade point averages and standardized tests.
Consequently, the left has treated the affirmative-action cases as racial analogues to last term’s Dobbs v. Jackson Women’s Health Organization, in which the Court reversed the Roe v. Wade (1973) decision and restored abortion law to the states. After Dobbs, the media portrayed the Court as antidemocratic, counter-majoritarian, and contemptuous of public opinion. And they had half a point. The polls really did show that the public was against overturning Roe v. Wade. For Washington Post columnist Ruth Marcus, the Students for Fair Admissions cases, like Dobbs, have been taken up by a “heedless” Court eager to embroil itself “in some of the most inflammatory issues confronting the nation” after a “cataclysmic” term.
There’s a problem with this analysis, however. For most of the public, affirmative action is not an “inflammatory issue.” It is a settled one. And that settlement, judging from polling data and electoral returns, has been remarkably durable and overwhelmingly lopsided. Americans support general efforts to promote opportunity and inclusion. But they oppose the explicit use of race as a criterion in college admissions, hiring, and promotion. The Court won’t be risking a backlash if it ends affirmative action. It will be on the side of the people.
The public has been against preferences since they were first imposed. And today’s anti-preferences coalition includes not just whites, but also members of racial and ethnic minorities. A Pew Research Center poll from the spring of 2020 found that 73 percent of Americans did not believe that race or ethnicity should factor into college admissions. Majorities of self-identified white, black, Hispanic, and Asian respondents all said race or ethnicity should not be a factor. Pew ran the same poll this year. The numbers had not changed.
Similarly, an October 2022 Washington Post–George Mason University poll found that 63 percent of Americans would support a Supreme Court decision “banning colleges and universities from considering a student’s race and ethnicity when making decisions about student admissions.” Racial preferences are a 70–30 issue. The left is on the wrong side.
It is true that, on occasion, one encounters vague and evasive polling questions that do not offer specifics about the content of the affirmative-action programs under consideration. Such polls obscure the anti-preference reality. A 2017 Pew poll, for instance, found that 71 percent of Americans said, “affirmative action programs designed to increase the number of black and minority students on college campuses” are “a good thing.” And the same Washington Post–George Mason University poll that found a large majority wanting to end race-based admissions also found that 64 percent of Americans “think programs designed to increase the racial diversity of students on college campuses” are a “good thing.”
The tacit assumption in both polls is that selecting by race is the only way one might achieve a racially diverse campus. That assumption is false. Race-neutral affirmative-action programs also can lead to greater diversity. And such programs are compatible with a color-blind Constitution.
“Many people are uncomfortable with the con-cept of singling out racial minorities for special treatment if it means other students will have to meet a higher standard,” write Amelia Thomson-DeVeaux and Zoha Qamar of FiveThirtyEight.com, “even though they also want universities to have racially diverse student bodies.” Thomson-DeVeaux and Qamar ascribe this apparent contradiction to public “ambivalence” toward affirmative action.
Yet public sentiment is neither contradictory nor ambivalent. The public is merely distinguishing between the end of diversity and the means of discrimination. It wants the former without resorting to the latter. And well it should.
If Americans truly believed that only race-based policies can bring about a diverse society, then one would expect them to support color-consciousness when it is put to a vote. They don’t. They reject it. And not just in red states. In 1996, California voters approved Proposition 209 and banned discrimination by race in public employment, education, and contracting. Almost a quarter of a century later, in 2020, Californians were asked to vote on Proposition 16, which would have repealed Prop 209. It lost by a 14-point margin.
Affirmative action has been rejected practically everywhere it appears on the ballot. The exception is Colorado, where an initiative modeled on Prop 209 lost narrowly in 2008. As of this writing, nine states ban racial preferences. If such bans have provoked widespread protest, I must have missed it.
For too long, the Court has said that discrimination by race is necessary to solve the problem of discrimination by race. The result has been a legal morass, a constitutional tragedy, and general racial alienation. If the Court fixes its mistake this term, its legitimacy won’t be questioned. Its integrity won’t be endangered. The will of the people won’t be subverted. It will be affirmed.
Photo: Joe Ravi; CC-BY-SA 3.0
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