13 Takes on Race-Conscious Admissions

With the U.S. Supreme Court hearing two major affirmative-action cases today — Students for Fair Admissions v. UNC and Students for Fair Admissions v. Harvard — higher-ed experts and the public alike are looking for clues to how the justices are leaning. The moment has also seen an outpouring of argumentation in the media. Here’s a roundup of how that debate is playing out. —The Editors

Dahlia Lithwick and Mark Joseph Stern, Slate: “What was perhaps most remarkable in these largely predictable arguments was how much time the conservative justices devoted to pure policy arguments. These justices dislike affirmative action for a whole lot of deep emotional reasons that, it turns out, have nothing to do with the Constitution.”

Megan McArdle, The Washington Post: “No matter what you think of this court, we were probably going to eventually end up here. America’s decades-old racial settlement had many cracks, but it was a workable solution to real problems. However, it has gone on for far longer than could have been anticipated, a fact that came up repeatedly during Monday’s oral arguments, and time has deepened the early cracks into gaping fissures.”

The Economist: “Two hours into the marathon hearings, Justice [Elena] Kagan asked Ms. [Elizabeth] Prelogar [the U.S. solicitor general] whether a ‘committed originalist’ like most members of the conservative majority would find the 14th Amendment’s Equal Protection Clause to bar race-consciousness. There is ‘nothing in history’ to support a principle of race-blindness in the amendments passed in the wake of the Civil War, she said.”

Adam Liptak, The New York Times: “In general, two themes ran through questions from the court’s conservatives: that educational diversity can be achieved without directly taking account of race and that there must come a time when colleges and universities stop making such distinctions.”

James S. Murphy, The Review: “Should the Supreme Court decide come June, when a ruling is likely, to ban the consideration of race in college admissions, college presidents will have the cover they need to stand up to alumni and stop offering a quid pro quo for their devotion and donations.”

Jeannie Suk Gersen, The New Yorker: “The court’s view, in its affirmative-action precedents, has been that educational diversity is a foundation for a multiracial democracy. Rejecting those precedents would be a key piece of a ‘colorblind’ vision, in which race-conscious efforts to insure citizens’ equal rights are seen as discriminatory. At the heart of the issue is which definitions of discrimination and equality best fit our democracy. The character of that democracy hangs in the balance.”

Renu Mukherjee, The New York Times: “Racial preferences in college admissions are wrong, and not just because they make it more difficult for certain racial groups over others to gain admission. Race-conscious admissions programs are wrong also because they promote the view that certain types of diversity matter more than others, that certain stories are more worth telling than others.”

Michael Theis, The Chronicle

Lee C. Bollinger and Geoffrey R. Stone, The Atlantic: “In Grutter, Justice Sandra Day O’Connor, writing for the majority, posited a ‘sunset clause’ on racism in America. By the year 2028, she contended, puzzlingly, America would be colorblind. About five years shy of the arbitrary deadline she established, it is impossible to argue that Black Americans enjoy equality of opportunity. They do not. Affirmative action must continue, potentially for generations to come — because the invidious discrimination experienced by Black Americans over a three-century span has not been undone.”

Evan Mandery, Mother Jones: “Like most elite colleges, Harvard also gives explicit preferences to applicants known in the world of higher education as ALDCs, a group that includes recruited athletes as well as the children of faculty, donors, and alumni — the latter are called ‘legacies.’ These students, approximately half of them legacies, represent about 30 percent of every Harvard class — about 43 percent of the college’s white students are ALDCs … When the court ends affirmative action for low-income students of color, it will be the result of Harvard’s indignant commitment to affirmative action for wealthy white kids.”

Roland G. Fryer Jr., The Washington Post: “How can affirmative action be made consistent with true meritocracy? How can the minority applicants who have lower scores but high potential be distinguished from those who just have low scores? The answer is simple: Use data more rigorously. The problem is not affirmative action per se. The problem is lazy implementation of it as a set of blunt racial preferences.”

Ian Millhiser, Vox: “There’s a very good reason why highly intelligent originalists like [Justices Antonin] Scalia, [Clarence] Thomas, and [Neil] Gorsuch have never attempted an originalist case against affirmative action. It’s because there isn’t a good one to make.”

Jeannie Park and Kristin Penner, Slate: “The media has helped [Edward] Blum [head of Students for Fair Admissions, the plaintiff] propagate an image as a lone underdog taking on much more powerful interests, with The Washington Post on Monday [October 24] producing a typical headline: ‘How one man brought affirmative action to the Supreme Court. Again and again.’ In reality, though, Blum is not some humble David going it alone in his battle against Goliath, but the well-off beneficiary of a powerful infrastructure of right-wing funders, think tanks, and lawyers.”

Richard D. Kahlenberg, The Atlantic: “The effort to use race in admissions is well intentioned, and it suits universities’ self-interest. But as an effort to promote fairness, it has run its course. If the Supreme Court were to strike down racial preferences and universities then failed to replace them with anything new, such a development would hurt the cause of racial inclusion and represent a betrayal of Black Americans in particular. But experience shows that, if forced to abandon today’s flawed system, universities instead will create something better for society: programs that will help the most vulnerable Americans of all races.”