Fair Admissions

I haven’t had a conversation in the last week without being asked about the Supreme Court’s decision in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College and the parallel case involving the University of North Carolina. That’s natural. The topic dominates the news, at least the news about race in America and about higher education. But it is also natural because I’ve spent the last twenty-five years or so immersed in the subject and writing books (four of them) about the “diversity” doctrine.¹ And I head an organization that has been immersed in the subject even longer. The National Association of Scholars (NAS) has been fighting racial preferences in higher education since its founding in 1987.

The NAS has been involved in every significant legal challenge to the racial preference regime in higher education. Perhaps most significantly, two of our members, Tom Wood and Glynn Custred, drafted the successful 1996 anti–race preference ballot initiative in California, Proposition 209.

So, people want to know what I think and what the NAS thinks about the June 29 Roberts opinion, the concurring opinions from Thomas, Gorsuch, and Kavanaugh, the dissenting opinions from Kagan and Sotomayor, and the separate dissent from Jackson, who recused herself from the Harvard case but opined about UNC. That’s a lot of ground to cover in that the combined texts run for 237 pages. I’ve been beavering away at the documents and will eventually have something to say about the particulars, but that’s not really what anyone wants to hear.

What people are really asking comes down to three clusters of questions:

1. Do I or the NAS think the main opinion, Roberts’ opinion, is good? Good law? Good for the country?
2. How will this opinion affect colleges? College admissions in particular, but also other aspects of higher education. Are those effects good?
3. What are the larger cultural and political issues? What is the intellectual center of this event?

These questions, of course, are no easier to answer than the general, “What do you think about this landmark decision?” question. And I don’t possess the authority to give answers to which anyone need defer. Hundreds, if not thousands, of people have ventured their own assessments—this will and should continue as Americans figure out for themselves the implications of the Supreme Court’s ruling and the surrounding opinions. I offered my first cut at what all this means in an essay, “Why the Supreme Court’s Harvard decision matters,” published in Spectator USA on June 30.

Where We Stand

But I won’t dodge the questions either. Let me start by saying that, on the whole, I welcome the ruling, and I think it was the right outcome to the two suits brought by Students for Fair Admissions. This should come as no surprise because the NAS filed amicus briefs at each stage of the Harvard lawsuit. They were drafted by Dennis Saffran, an attorney with whom we have worked closely over the years, and his good work was rewarded by Justice Thomas citing our amicus brief in his concurring opinion.

While I welcome the ruling, however, I am cautious about it. Some members and supporters of the NAS are eager to break out the champagne and send up the fireworks. It is a long-sought victory in a major case, and it holds the promise of changing the dynamics of higher education, which has been centered on racial preferences for several generations. What is not to celebrate?

Flaws

I’ll answer that, as I will other questions, with a short list.

1. Loopholes. Roberts’ decision has at least two that have been widely noted. Roberts wrote:

At the same time, nothing prohibits universities from considering an applicant’s discussion of how race affected the applicant’s life, so long as that discussion is concretely tied to a quality of character or unique ability that the particular applicant can contribute to the university (page 8).

He elaborated this point later in the text:

At the same time, as all parties agree, nothing in this opinion should be construed as prohibiting universities from considering an applicant’s discussion of how race affected his or her life, be it through discrimination, inspiration, or otherwise. See, e.g., 4 App. in No. 21–707, at 1725– 1726, 1741; Tr. of Oral Arg. in No. 20–1199, at 10. 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. (A dissenting opinion is generally not the best source of legal advice on how to comply with the majority opinion.) “[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, 40 STUDENTS FOR FAIR ADMISSIONS, INC. v. PRESIDENT AND FELLOWS OF HARVARD COLLEGE Opinion of the Court not the name.” Cummings v. Missouri, 4 Wall. 277, 325 (1867). 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. In other words, the student must be treated based on his or her experiences as an individual—not on the basis of race (page 39).

Roberts’ ruling also includes an odd footnote (footnote 4, page 22) that exempts military service academies from the broader ruling:

The United States as amicus curiae contends that race-based admissions programs further compelling interests at our Nation’s military academies. No military academy is a party to these cases, however, and none of the courts below addressed the propriety of race-based admissions systems in that context. This opinion also does not address the issue, in light of the potentially distinct interests that military academies may present.

2. Omissions. The main opinion fails explicitly to overrule the Supreme Court’s 2003 opinion in Grutter v. Bollinger or explicitly to discard the Court’s “diversity” doctrine. This omission may not matter so much if the judgment is read as demolishing the grounds for Grutter and scuttling the diversity doctrine without quite saying so, but a lot of us would have rested more easily if Roberts had come right out and said so. Why didn’t he? Did he leave an opening for the vampire to rise again?
3. Evasions. Everyone knows that colleges and universities are still committed to racial preferences. Many college presidents have come right out and said so, and we have been watching for the last year as the higher education establishment has openly discussed ways around a potential Supreme Court ruling that would ban racial preferences per se. Most of these techniques are untested, and they will surely be challenged by plaintiffs in future cases. But the immediate prospect is that colleges and universities will strive mightily to subvert the Roberts ruling. President Biden gave a short speech on the day of the ruling, expressing his disagreement and making clear that his administration would be on the side of those who choose to evade the law.

Cornell Law professor William A. Jacobson and his co-author Kemberlee Kaye have published an excellent breakdown of the evasions that are already underway: “Six Ways Higher Ed Will Attempt To Evade The Supreme Court’s Affirmative Action Ruling.” Among the six ways is eliminating “the evidence of discrimination, not the discrimination itself.” Think of the decision to ban the use of SAT scores in evaluating candidates for admission. Jacobson and Kaye also mention dispersing “DEI programming in response to budget cuts or department elimination.” I’ve been warning about both these steps for a while.

Jacobson and Kaye aren’t alone in surveying the dodges. Arizona State University professor Jeffrey Selingo scouts them out as well in a Wall Street Journal article, “How Elite Colleges Will Work Around the Supreme Court’s Ruling.” Selingo notes, for example, the decision of the University of Virginia “to target 40 high schools in the state that have sent few applications to the flagship campus.” Could it be that these forty schools were overlooked havens of academic talent? Or might there be other considerations?

Can we fault the Roberts decision for failing to anticipate these workarounds? I don’t know. The Court had to address the issues that came forward in the SFFA complaints. It couldn’t address every subterfuge that colleges and universities might invent to evade the law. But Roberts could, indeed, have issued a sterner warning to higher education that bobbing and weaving to escape the spirit as well as the letter of the law would be unacceptable.

For these three reasons, I’m not ready to pop the cork in the champagne bottle. I’ll have a ginger bear instead. There is something to celebrate, but we should temper our joy with caution. A lot of pain lies ahead.

Is the Ruling Nonetheless a Good Opinion?

So, back to the first question: Do I or the NAS think the main opinion, Roberts’ opinion, is good? Good law? Good for the country? Yes, I think it is good law and good for the country. It is good law because it restores the authority of the 14th Amendment, which promises that the law would apply equally to all citizens, a protection that was and is irrespective of race. Because that crucial text is never cited often enough, I cite it again:

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

The amendment says “state,” but it has long been extended to all public institutions that operate under the authority of the state, so private Harvard is included. Some wish to force on the 14th Amendment the interpretation that it applies only to blacks: that it was an anti-discrimination measure that itself implicitly discriminated in favor of one group of Americans. This reading turns the 14th Amendment upside down and makes it a patent for racial privilege. Roberts’ ruling puts an end to that perversion of the text.

Is that good law? Yes, it redeems an essential promise of America, to treat all people equally with “due process of law.” Is that good for the country? Yes, because it will help the United States finally to overcome racial division by retiring racial distinction to private life. It should confer neither privilege nor stigma.

Saying this invites the response, “But we are not all equal, and something must be done to end inequality.” The first part of that sentence is plainly true. There are numerous forms of inequality in our society. Many of them are benign, which is to say they are the outcome of personal decisions such as the willingness of individuals to defer gratification and plan for the future. But other forms of inequality are not benign and can be traced to generational legacies. Growing up in poverty is not a choice but a condition imposed on young people who couldn’t choose otherwise. The lack of choice, however, is easily overstated. People can and do escape poverty, and the self-perpetuating aspect of this kind of inequality is not as immutable as many would have us believe.

What we really face is something better described as the human condition. Inequality of an existential character is universal even in the most egalitarian societies. But note especially that the use of racial preferences in college admissions (or elsewhere) does literally nothing to ameliorate such fundamental inequalities. It just confers unearned privilege on a handful of individuals. Our society can tolerate the supposedly lucky individuals who get ahead this way, but that doesn’t advance the cause of justice any more than drawing a successful lottery ticket rectifies the concentration of wealth in the hands of the richest one percent. It is an illusion, and it is an illusion advanced relentlessly by the leadership class of colleges and universities, who pretend that their distribution of “affirmative action” lottery tickets is bringing “social justice” to campus.

How Will This Affect Colleges?

The second broad question is, “How will the Roberts opinion affect colleges? College admissions in particular, but also other aspects of higher education. Are those effects good?”

If colleges and universities act in good faith, or at least bend a little in the direction of good faith, like gangsters who go to church once in a while, we will see a re-sorting of students. As Helen Andrews points out in her article “The Price of Admissions” for The American Conservative, if Harvard were to admit students on a race-blind, merit-only basis, its Asian student population would rise from 24 percent to 43 percent and its black student population would fall from 16 percent to less than 1 percent. But “Harvard will never admit a freshman class that is half Asian and less than 1 percent black.” Andrews thinks Harvard will find some way to limit the Asian surge and forestall the black plummet. I suspect she is right, but I hope she is wrong.

I’d prefer to see students sort themselves out by pursuing their college educations at institutions matched to their actual levels of competence, ambition, and perseverance. And I’d prefer college admission departments to focus on real measures of students’ ability and likely success. But, plainly, the world doesn’t work with diamond-cut precision on matters involving human judgment. We can measure some of the ingredients of human achievement, but others elude us. Some students sadly never fulfill their promise, while others far exceed what anyone expected from them.

And then, too, college is far from an assembly line of the intellect. Students often come alive in encounters with books, ideas, disciplines, and teachers in ways that no one could have foreseen. It is a grave mistake to think that college admissions can be reduced to an exact science.

But that is no justification for ignoring the evidence we do have. Test scores and grades do matter, and college cannot make up for twelve years of incompetent public schooling or an ethic of minimal effort. As Ilya Shapiro and Renu Mukherjee point out in “The End of the Beginning”:

As the last several decades have shown, affirmative action can’t fix the educational achievement gaps that exist between underrepresented minority children and their white and Asian peers, which open up years before a student applies to college.

What I expect will happen is that elite institutions such as Harvard will boost their Asian enrollments a little and cut their black enrollments a little to create the appearance of complying with the law, but will continue to use racial preferences disguised as something else. They will be successfully challenged again and again, and, over time, the percentages will move closer to the actual distribution of academic talent and achievement. As this happens, the pressure on both public schools to improve their preparation and on minority students to step up their game will begin to create opportunities for admission that do not depend on ethnic favoritism.

But first, we will have to get through an era during which colleges and universities will attempt to lie, cheat, and deceive their way out of obeying the law. And they will behave this way with an air of righteousness, as though they are defending a superior moral position, when all they really will be doing is manufacturing a false appearance of educational equity.

What Are the Cultural Implications?

My third set of questions is, “What are the larger cultural and political issues? What is the intellectual center of this event?” The simple and not so simple answer is that the Roberts opinion cuts against the post–civil rights era regime of racial privilege. Many contemporary Americans cannot even bear to hear this said or see it written. They have taken in completely the doctrine that black Americans are oppressed primarily, but not exclusively, by white Americans and the “system” of “white supremacy.”

I say this as someone who lives in New York City and part time in Vermont, and who listens un- disputatiously to his progressive white friends and neighbors. Generally, they see themselves as free of racism, at least as a conscious motive, but they also grant that they enjoy “white privilege” in the form of not having to think about race all the time. They believe their black friends and neighbors must have race top of mind and confront racism every day, if not every minute of the day. Thus, their settled view is that America is not only divided by race but also divided because of the actions and attitudes of white people and the stubborn refusal of white people to admit their guilt and properly atone. Atonement might mean paying reparations for slavery, but it certainly means supporting “affirmative action,” by which they mean racial preferences in higher education and every other competitive domain.

This view is not pervasive in America, but it is well-entrenched in the white, liberal middle class and upper class. And it is a perspective that cannot be reconciled with the Roberts opinion. For that reason, progressive Americans and many of their liberal allies will condemn the decision and the Court that made it. This will be a cultural dividing line that will persist for a very long time.

It will eventually lose its energy because it is founded on basic falsehoods. Racism persists in American society in a variety of ways, but most conspicuously in black contempt for the social norms of white society. It also persists among whites, but almost exclusively among whites at the lower end of the social order. And it is to be found as well among some Asian Americans, although Asian racism seems more common among affluent strivers than among ordinary, working stiffs.

These are loose generalizations, but they are loosely accurate, not loosely invalid. I fully understand, though, that many Americans do not want to give serious attention to black racism, which is typically referred to through euphemisms such as “community solidarity” and “preserving the culture.” Those may be good things in themselves, but group identity based on hostility and contempt toward others is not a recipe for thriving in the long term. The post–civil rights consensus on race, in fact, has fractured America. It has been good for a few, but a disaster for many. That consensus depends on stoking the fires of racial resentment in perpetuity.

Such resentment-stoking is the work of figures like Nikole Hannah-Jones in her 1619 Project and Ibram X. Kendi in Stamped from the Beginning and How to Be an Antiracist. It is the central idea of “critical race theory,” which, in turn, has been repackaged and planted in schools, colleges, and graduate programs as “Diversity, Equity, and Inclusion.” These are really nothing but claims in favor of black racial privilege, or, to repurpose one of Hannah-Jones’s favorite phrases, “what is owed.”

Roberts’ opinion doesn’t touch on any of this directly, but these are the pieces of the cultural apparatus that will have to be deconstructed to carry out the project enunciated in the opinion. And they are, of course, under assault in several states that have decided DEI and its kindred programs must go.

If they do go, we will have to face the daunting questions of, “What kind of national or cultural unity do we want?” and “What would succeed in bringing us to a new consensus?” I don’t imagine that we can ever be a culture that has no internal fractures or a settled view on all the important issues. That has never happened and is not really desirable. But if we can restore the ideals that “all men are created equal” and that we should have “equal protection under the law,” we will have gone a long way toward creating a practical consensus in which we can thrive. I don’t want to wander too far from the topic of racial division, but clearly, other salient cultural disputes play into this as well. We need basic agreement on free expression and the need for an honest press. A major reason we are locked into profound cultural division is that we are saturated with false sensitivities, emotional fragility, abundant disinformation, and manipulative government policies that foster and exploit our natural weaknesses.

The Roberts opinion offers a gleam of something better. But if we want to follow that gleam, we will have to dig through a mountain of nonsense first, much of which is heaped upon us by our colleges and universities.

The Roberts opinion does not definitively retire the mischievous concept of “diversity” as an inherent social good. I have written too much on this elsewhere and won’t prolong this statement with a recapitulation. I will, however, repeat another observation I have made before: Americans have the capacity to entertain only one mania at a time. Racial panic has long been in competition with climate hysteria. As one advances, the other retreats. We have recent experience with other forms of group madness, such as COVID credulity. New ones come along fairly often. I would expect that the end of racial panic will come not with a sudden awakening to how useless and destructive it was, but with some greater hysteria that succeeds in taking up the space in our national consciousness. Out with the old, in with the new.

I say this with some regret. I wish we could do without witch hunts altogether and focus on more positive goals, but I’ve read too much American history to think that likely.

There is one more thing to say. The Roberts opinion ends the willingness of the nations’ highest court to treat colleges and universities as exempt from the rules that govern the rest of us. The “deference” given to the people who run American higher education is now gone, squandered by decades of malfeasance. One of the best cultural implications of the opinion is that our colleges and universities will have to prove their points, not just assert them. This was an argument that the CATO Institute included in its amicus brief in the case, and CATO Senior Fellow Roger Pilon, writing at Cato at Liberty, draws the moral: “The Court’s repeated return to the issue of judicial deference, and the importance of judicial engagement, is perhaps what this decision will most stand for over time.”

Wenyuan Wu, writing for the NAS’s Minding the Campus, gives the best summation of this point that I have seen so far:

While it doesn’t override universities’ freedom to define their core missions, the ruling revokes the unjustified authority granted to them in case precedent. The court reasons, comporting with the main argument in my group’s amicus brief in support of Students for Fair Admissions, that “any deference [to universities that use race in admissions] must exist ‘within constitutionally prescribed limits,’… [which] does not imply abandonment or abdication of judicial review.” In other words, universities and colleges cannot invoke academic judgments in their use of race-based programs to shield themselves from legal challenges. They cannot be both judge and jury, actor and director.

Despite its limitations, the Court’s ruling breathes new life into the rule of law in higher education, one of our nation’s pivotal institutions. The cultural change that can and should flow from this is a reinvigorated spirit of fairness and honesty entering all our institutions, perhaps starting with the press.