The Supreme Court’s decision in Students for Fair Admissions v. Harvard, the case banning race consciousness in college admissions, is facially unenforceable. That’s an underreported aspect of Chief Justice John Roberts’s gobbledygook ruling, mainly because most of the white people doing the reporting have adopted the gospel of “race-neutral” and “color blindness” without giving those concepts a whole lot of critical thought. But humans cannot retroactively make themselves unaware of race. People cannot un-conscious themselves, and ordering them to not think about race just ensures that they will. (In her dissent, Justice Ketanji Brown Jackson called it a “classic pink-elephant paradox.”) The court expects college admissions officers to know about the race of their applicants, and not care, but there’s really not going to be any way to tell if colleges are disregarding the precise bit of information the court wants them to.
As a result, the real upshot of the affirmative action ruling is this: Colleges and universities must now punish Black applicants by decreasing the enrollment of Black students, by any means necessary. That’s because the only way universities can show compliance with Roberts’s new rules is to show that they’ve decreased the number of Black kids they let into school. Anything less than that will likely trigger litigation from the white supremacists who have already promised to hunt down schools that admit too many Black people, as determined by their own white-makes-right accounting system.
This intended revival of segregationist educational opportunities flows directly from the sheer hubris of Roberts’s attempt to legislate how admissions officers think, along with his open threats to universities that do not comply with his version of thought-policing. In his decision, Roberts expects that colleges and universities will be responsible for self-enforcing his ruling, but he also warns them that additional litigation will be coming their way if they try a work-around to achieve racial diversity in their classes. Again, the white media has made a big deal about the part of Roberts’s ruling where he says that colleges can still consider how race has affected an applicant (for instance, as described in a college essay), but they’ve ignored the last lines of his ruling where he specifically threatens schools that use those very essays to achieve racial diversity.
Roberts writes:
But, despite the dissent’s assertion to the contrary, universities may not simply establish through application essays or other means the regime we hold unlawful today…. “[W]hat cannot be done directly cannot be done indirectly. The Constitution deals with substance, not shadows,” and the prohibition against racial discrimination is “levelled at the thing, not the name.”… A benefit to a student who overcame racial discrimination, for example, must be tied to that student’s courage and determination. Or a benefit to a student whose heritage or culture motivated him or her to assume a leadership role or attain a particular goal must be tied to that student’s unique ability to contribute to the university.
I’s sho hopes Massa Roberts thinks I is a good Negro wit the determination to keeps learnin’ my letters at the fancy school.
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Roberts’s closing flourish here is trash on many levels. First of all, I don’t recall anyone appointing him as the chief judge for how Black people are supposed to overcome racial discrimination. Second, I’d argue that college admissions officers should pay special attention to applicants who didn’t fully overcome the hurdles white people put in their way, but might do so in the future. And third, Roberts’s paean to model minorities is still a white man’s wishes disguised as a legal remedy: How in the hell will Roberts know if some essay reader saw “courage and determination” in an applicant? How can Roberts possibly know what constitutes a unique contribution to a university, and how can Roberts place himself in a position to second-guess what the admissions officers on the ground think are worthwhile contributions?
Most important of all, how can Roberts, or anybody else, know if universities are following his rules? Roberts doesn’t tell us outright, but he sure drops a powerful hint. In his decision, he effectively accuses Harvard of using a backdoor quota system to maintain a consistent rate of Black students. He writes: “For the admitted classes [at Harvard] of 2009 to 2018, black students represented a tight band of 10.0%-11.7% of the admitted pool.” He adds in a footnote: “Harvard must use precise racial preferences year in and year out to maintain the unyielding demographic composition of its class.”
Even if you think Roberts is right (and I’ll point out that Roberts offered no evidence that Harvard “must” be using precise racial preferences to achieve this kind of diversity, nor did the trial court, whose presentation of facts was what Roberts was supposed to be bound by, instead of his own conglomeration of fact-free inferences), how will a school like Harvard prove, to Roberts’s satisfaction, that it is not using racial preferences in the future?
The answer: Only a decrease in Black enrollment is likely to satisfy Roberts. If Harvard maintains its class diversity, Roberts will accuse it of using racial preferences. If Harvard increases Black enrollment, Roberts will accuse it of using newly unconstitutional race-consciousness to promote Black applicants—beyond historical levels, he’ll likely say. Only a decrease in Black enrollment will satisfy Roberts’s unworkable standard of ignoring race. It doesn’t actually matter how Harvard goes about putting together its class: If this doesn’t produce Roberts’s desired outcome of decreasing Black enrollment, Roberts will accuse it of thinking about race.
Of course, Roberts doesn’t say by how much universities will have to decrease their Black enrollment to satisfy his new legal requirements. If he had, white media might actually have reported on this aspect of his ruling. Instead, Roberts can almost certainly rely on the efforts of outsourced goons to keep an eye on universities and sue them if too many Black kids get in. One goon squad leader in particular, Trump political adviser Stephen Miller, has already volunteered to do this work, and has basically said the quiet part aloud.
Miller is currently the head of some accursed nonprofit called “America First Legal,” and shortly after the ruling he released a video in which he explained that his organization sent threatening letters to 200 law schools. In the video, Miller said: “If they tried to violate, circumvent or bypass, subvert or otherwise program around that ruling, we are going to take them to court. We are going to hold them to account.” In the letter to Harvard Law School Dean John Manning, Miller warned him of “the consequences that you and your institution will face if you fail to comply with or attempt to circumvent the Court’s ruling.”
I guess it was nice for Miller to send a letter, since historically these “warnings” about the “consequences” of being too nice to Black people come in the form of burning crosses, but the upshot is the same. Miller is telling schools straight out that any attempt to maintain diversity will be met with costly litigation. And the only way Miller or anybody else can know if a school is not attempting to “bypass, subvert, or otherwise program around” the court’s ruling is if those schools manufacture a performative decrease in Black enrollment.
It is worth noting that nothing in Roberts’s ruling or Miller’s posturing requires universities to increase enrollment of AAPI students, the students these white-wing forces used to accomplish their agenda. Roberts was unconcerned that enrollment for AAPI students at Harvard also remained in a tight band (around 18 to 20 percent) for a decade, and his ruling does not require universities to increase that number. Miller is not threatening to sue schools if they don’t admit more AAPI students. As usual, the concerns of AAPI students are left wholly unaddressed by this ruling, a fact that some Asian Americans who have celebrated the decision seem to deliberately ignore. The point, for these people, is that Black enrollment goes down, not that AAPI enrollment goes up.
I don’t know how many Black people Miller or Roberts think should be enrolled in a college or university, but however many Black kids are enrolled right now is too much for them. The situation right now is the standard that all future litigation will be set against, and if schools don’t significantly decrease Black enrollment to the satisfaction of white supremacists, Stephen Miller will be coming, and John Roberts will have his back. Universities were not using a quota system before, but now they pretty much have to, with a Black enrollment number lower than it was before as the new hard cap.
Going forward, it will be beneficial for some Black students—any whose test scores are less than exemplary—to pass as white or “other” on their college or graduate school applications. That’s because colleges and universities are now disincentivized from extending an offer to anybody they have to report as “Black,” for fear of being sued for admitting too many.
The affirmative action ban is not race-neutral; it’s anti-Black. And that is precisely how people like Roberts and Miller intend to apply their new rules.
