The National Association of Scholars (NAS) is delighted that the Supreme Court has just ruled in Students for Fair Admissions v. Harvard (2023) that colleges and universities cannot use race-based admissions practices. The NAS has fought since its foundation in 1987 for the ideal of equal opportunity for individuals in colleges and universities—and, indeed, throughout the republic. The Supreme Court sadly mis-stepped in its two previous opportunities to overturn Regents of the University of California v. Bakke (1978), Grutter v. Bollinger (2003), and Fisher v. University of Texas (2016). The third time is the charm!—the Supreme Court has redeemed America from its disgraceful, open endorsement of race discrimination in college admissions.
Yet, while Students for Fair Admissions v. Harvard may bar race-based admissions practices in theory, it does not do so in practice. The Supreme Court establishes that any college admissions practice now must survive strict scrutiny to ensure that it does not allow race discrimination—but that decision must be enforced.
Academic administrators can simply disregard the Supreme Court until they are challenged in court—and they have been preparing a host of workarounds to meet such challenges, not least by abandoning the standardized admissions tests that could provide evidence that they engage in race discrimination. The Supreme Court also allowed several major loopholes. Colleges and universities may consider “character,” which may include “racial identity.” They may aim for “socioeconomic diversity” and other goals, which may serve as proxies for race discrimination. “John Marshall has made his decision, now let him enforce it,” said Andrew Jackson; a host of college and university presidents are about to get in touch with their inner Andrew Jacksons.
Then, too, Students for Fair Admissions v. Harvard does not affect race discrimination in hiring staff or faculty, or in any other program or financial award. It narrowly affects college admissions. The principle it establishes may imply wider application—but the decision itself does not speak to those implications.
Students for Fair Admissions gives us a tool. We now may say that the universities may not legally discriminate based on race and use that as a legal and political ground to invoke the Supreme Court’s strict scrutiny of their admissions practices. But we cannot just say this: we must act, in the court of public opinion, in the courts of law, and in the legislative arena. Colleges and universities must be challenged in the courtroom to be held accountable when they persist in discrimination. Federal and state legislatures must work to require institutions of higher education to provide full and transparent data, which will make clear when they discriminate. Proxies for race discrimination, such as “socioeconomic diversity,” must be challenged. Above all, we must fight and fight again to win public opinion to our side, and to keep it there. We must keep public opinion on our side for a generation and more, until the colleges and universities fully comply with the Supreme Court’s decision to strike down race discrimination.
This struggle involves larger political issues. Three justices in the minority argued unrepentantly in favor of race discrimination. Should the balance of the Supreme Court change, a 5-4 majority in favor of race discrimination would return America with lightning speed to a full regime of race discrimination in college admissions. This victory is sweeping, but fragile. We must create “facts on the ground”—a shift in college and university practices throughout the nation to institutionalize nondiscrimination in admissions. If we change what colleges and universities do, it will be much harder for them to discriminate again.
The NAS is proud of the work it has done since 1987 to bring about this victory. Above all, we are proud that we provided the first amicus curiae brief for Students for Fair Admissions as it started its way through the lower courts—although we are also delighted that Justice Thomas cited our work in his concurrence for this decision. We have worked for 36 years to abolish the iniquity of race discrimination from college admissions. Our experience has prepared us to work for another 36 years, or however long is necessary, to expunge race discrimination in practice as well as in theory.
We will do that work. But today we cry, Rejoice! Rejoice! We invite every American to join us in cheering the Supreme Court for its wonderful affirmation that America’s ideals of race nondiscrimination apply everywhere in our country. Our elite discriminators may vow, “Discrimination today, discrimination tomorrow, discrimination forever.” Yet we will use the glorious tool the Supreme Court has given us, this palladium of equality, and we will dislodge them from the doorways to our colleges and universities.
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