Make No Mistake, the Supreme Court Will Kill Affirmative Action

Make No Mistake, the Supreme Court Will Kill Affirmative Action

Make No Mistake, the Supreme Court Will Kill Affirmative Action

This week’s oral arguments made clear that the conservative justices will gut race-conscious admissions—and that the move won’t help Asian American students.


The Supreme Court started the process of officially dismantling affirmative action in college admissions on Monday as it heard two cases attacking the policy. The cases were brought by the Students for Fair Admissions (SFFA), a group that claims to represent the interests of Asian American and Pacific Islander students who claim they were discriminated against by race-conscious admissions policies at the University of North Carolina and Harvard University.

I say “claims to represent” because the group was actually organized by Ed Blum, a white conservative gadfly backed by well-funded donors who has made it his life’s work to end affirmative action. Blum has failed to take down affirmative action in the past, most recently in 2016 through the vessel of Abigail Fisher, a white woman who sued the University of Texas over its admissions policies. In these cases, Blum and his white conservative ilk are trying to find success through pitting different minority communities against each other in the competitive world of college admissions.

Blum will succeed this time, but not because of the strength of the case. Fisher lost the second of her two Supreme Court cases in 2016, with the court upholding affirmative action by a vote of 4-3, with Anthony Kennedy writing the majority opinion. (This was a seven-person opinion because Scalia had recently died and Elena Kagan recused herself because she worked on the Fisher case back when she was solicitor general for the United States.) Since then, Kennedy has been replaced by alleged attempted rapist Brett Kavanaugh; Ruth Bader Ginsburg (who was also in the majority) has died and been replaced by Amy Coney Barrett; and Scalia has been replaced by Neil Gorsuch. All three dissenters in the Fisher case remain—Chief Justice John Roberts and Justices Clarence Thomas and Samuel Alito—and they will be joined by their new conservative brethren in finally striking down this policy.

The eventual ruling, which will come down sometime before the end of June, will be a victory for white conservatives who have worked tirelessly to make college admissions a little easier for mediocre white children, but it won’t actually help the AAPI students who claim they are discriminated against in college admissions. I know that because the specific concerns of that community hardly even came up during the marathon five hours of Supreme Court oral argument.

In the North Carolina case, Patrick Strawbridge, the white attorney making the case on behalf of the AAPI students, barely even mentioned them. Strawbridge offered arguments about how racial preferences helped Black students get into UNC, but he said nothing about how eliminating those racial preferences would help AAPI students. Indeed, he couldn’t make such an argument, because none exists. Ryan Park, the solicitor general of North Carolina (whose parents come from South Korea), pointed out that UNC actually admits AAPI students at a higher rate than African American students, which he called a “peculiar result” for those who think that the university’s race-conscious admissions program benefits black kids to the determinant of AAPI kids. Neither Strawbridge nor any of the conservative justices on the Supreme Court had an answer for this. They just moved on like the raw facts didn’t matter.

The Harvard case was a little more complicated, because there is actual evidence that Harvard discriminates against AAPI students. Harvard uses a “personal rating” system as part of what its lawyers described as a “triage” process for whittling down its massive application pool. (Harvard receives over 60,000 applications for 1,600 spots.) Asian American students, as a group, rate lower on this personal rating metric than any other group of students.

The Harvard process for spitting out a personal rating is largely opaque, but we know it involves the impressions gathered about applicants from in-person interviews with Harvard alumni as well as letters from guidance counselors and teachers’ recommendations. There is no good reason for these ratings to be lower for an entire broad group of students. I think it’s fair to assume that racism against AAPI students plays at least some role in why some of these recommendations are less glowing than those for high-achieving students from other races (predictably, personal rating scores are better for white students than for AAPI students). The white lawyer claiming to represent AAPI students against Harvard, Cameron Norris, returned to these ratings multiple times as evidence of Harvard’s discrimination against this group of students.

I think the personal ratings are a trash measurement that Harvard should not use. But what Norris failed to do was make any kind of connection between these unfair personal ratings and the need to throw out affirmative action policies. Black students are not the ones rating AAPI kids, nor does the existence of Black students cause backward high school guidance counselors to rate AAPI students poorly.

Advocates who are truly concerned about AAPI admissions at Harvard would probably be trying to exclude personal ratings as a factor Harvard can consider, but instead these white conservative lawyers are trying to exclude racial background—by which they mean a Black racial background—as a factor Harvard can consider. To put this nonsense more starkly: After the conservatives win, Harvard will not be allowed to consider an applicant’s race but will be allowed to consider an applicant’s personal rating. The very process that we know is hurting AAPI applicants at Harvard will be allowed to continue, while the process that has nothing to do with AAPI students will be ruled unconstitutional. This is what happens when you let white conservatives carpetbag an issue of minority representation: You get a solution that is good for white people and useless for everybody else.

Both the lawyers and the conservatives justices argued that adding race as one factor somehow made race the determinative factor in whether a kid gets into school, and argued that such racial preferences were unconstitutional. The liberal justices and the lawyers defending the universities—who included the solicitor general for the United States, Elizabeth Prelogar, who was there primarily to argue that affirmative action was important for the nation’s service academies, to ensure a diverse officer core—argued that the conservative spin on affirmative action was factually untrue. They explained that race was just one factor among many considered by admissions committees and highlighted the fact that the conservative position—that race should be the only factor schools are not allowed to consider—makes no sense given the compelling interest schools have for matriculating a diverse class of students.

But the conservative justices were not interested in how affirmative action actually works; they were instead wedded to their narrative that race-conscious admissions are “bad,” even though they couldn’t muster any evidence about whom it is bad for. White students, of course, are still able to get into schools like UNC and Harvard, and the lawyers for the schools made the obvious point that there are many white applicants who are admitted over more qualified (based on test scores) minority applicants.

The conservative justice most dedicated to his opposition to affirmative action, facts be damned, was Clarence Thomas. He asked, repeatedly, what the “educational benefit” of diversity was in schools. The lawyers defending affirmative action didn’t dodge his question; instead, they gave him answers.

Ryan Park talked about how students in a diverse environment perform better in school and that minority students in particular benefit from not being the only minority in their class. Prelogar described the way that colleges and universities serve as pipelines to careers in institutions that depend on diverse populations for success—once again, the service academies, in particular, where diversity leads to a diverse officer core. She cited studies showing that perceptions of legitimacy and leadership increase when officers look more like the enlisted folks. Seth Waxman, the lawyer for Harvard, shared studies that investor groups perform better, as shown by the profits they make, when they make decisions in diverse environments that can short-circuit groupthink.

Thomas was unsatisfied with all of these answers, but he was far from the only one. The elephant in the room was, or should have been, legacy admissions, a factor that disproportionately favors white applicants. Harvard has a preference for legacies, athletes, children of faculty, and students who end up on the dean’s list (and those lists frequently include students whose parents donate a lot of money to the school). All of these categories overrepresent white students. Studies show that students from these groups represent only 5 percent of Harvard applicants, but make up 30 percent of the incoming classes.

The conservative justices didn’t care. Prelogar, along with Justices Elena Kagan and Ketanji Brown Jackson, made an originalist argument that race-conscious admissions are squarely within the purview of what the writers of the 14th Amendment would have found acceptable. The conservative justices didn’t care. Lawyers for the universities pointed out that the court’s own precedents support race-conscious admissions, and that the court has previously said that affirmative action programs serve a “compelling interest” for universities that want a diverse class of students. The conservative justices didn’t care. Lawyers said that if the high court thinks the lower court got the constitutional standard wrong, it should remand the case back to that court for a ruling applying whatever standard the high court wants, instead of ending the program by fiat. The conservative justices didn’t care.

The conservative justices don’t have to care about facts, they don’t have to care about reality, they don’t have to care about the actual application of affirmative action, and they don’t have to care about constitutional law, because they have the votes to kill that which they dislike.

If that sounds familiar, it should. It’s exactly the same rationale the conservatives used to expand gun rights, deny climate change, and authorize the states to force women to bring pregnancies to term against their will. These conservatives are unbound from any logical, political, or legal restraint. They will do what they want.

What they wanted to do on Monday was hear a case that will make college admissions easier for white kids. They just used AAPI kids to get there.

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