What's at stake as the Supreme Court considers banning race in college admissions: 'Basic fairness'
Category: News & Politics
Via: vic-eldred • 2 years ago • 56 commentsBy: Kelsey Koberg (Fox News)
The Supreme Court is hearing oral arguments on Monday in two cases that could determine whether colleges can consider race in their college admissions process, a decision that could drastically affect how colleges admit students, and impact racial diversity far beyond higher education.
The cases deal with the admissions policies of Harvard and the University of North Carolina at Chapel Hill. Students for Fair Admissions (SFFA) sued both schools, alleging their policies, which consider race as a factor in admissions, discriminate against Asian American applicants.
SFFA first sued Harvard in 2014, and is now asking the Supreme Court to overturn its 2003 landmark decision Grutter v. Bollinger, which permitted race to be considered as one factor in college admissions because it believed student body diversity was "a compelling state interest."
In writing the opinion in the Grutter case, Justice Sandra Day O'Connor wrote that "race-conscious admissions policies must be limited in time," and added that "we expect that 25 years from now, the use of racial preferences will no longer be necessary."
Now, 19 years later, the Supreme Court is revisiting whether racial preferences are, in fact, still necessary.
"The Supreme Court is going to once and for all be answering the question of whether our nation's college and universities can consider race in the admissions process," Kimberly Herman, general counsel for the Southeastern Legal Foundation, told Fox News Digital.
It is "one of the most consequential supreme court cases to ever be heard in higher education," Danielle Holley, Dean of Howard University Law School told Fox News Digital. "For selective admission universities, it would mean that if the Supreme Court finds against Harvard or UNC, those universities could no longer consider race in any way in admissions."
That outcome would have significant effects on diversity on college campuses, Tiffany Atkins, a law professor at Elon Law School, told Fox News Digital.
"From my perspective as a law professor and a lawyer, this is important because it affects the students that I teach, the conversations that we have, the richness of the conversation in the classroom," Atkins said.
The consequences of the Supreme Court ruling in favor of SFFA would be far reaching, Atkins added, potentially affecting the pipeline for professions like doctors and lawyers.
Yvette Pappoe, an assistant law professor at the University of D.C., said eliminating race-conscious admissions would have "devastating consequences on people of color, minorities generally," and strongly advocated for them to continue.
"We absolutely still need race conscious admissions programs. The whole point of affirmative action was not to reward historically advantaged groups. The whole point was to remedy past discrimination, whether intentional or not, and that has not been remedied, whether we like to admit it or not," Pappoe said.
"Banning such programs will harm students, it will harm schools, it will harm society in interrelated ways. It will not only deepen the existing racial disparities in higher education and other social institutions, it will disadvantage specifically Black candidates and other students of color in the admissions process. And then finally, it will fuel racist stereotypes about people of color, including and specifically Black women," Pappoe added.
In the event that the Supreme Court did rule in favor of SFFA, Pappoe predicted it would not take long for diversity on college campuses to be affected.
"In the blink of an eye, I can see that universities that have these policies that no longer want to have the policies will now have a reason to drop these policies. It could happen in this current cycle," she said, predicting that it could take less than a year.
Because of this, Jonathan Feingold, an associate professor at Boston University School of Law, said it should be "concerning" that the Supreme Court may do away with affirmative action on college campuses.
"For anyone who's committed to a racial diversity on campus, it certainly should be concerning to think of a future in which the Supreme Court prohibits any university from taking race into account," he said. "I think anyone who's interested in a racially diverse campus, among other elements of diversity, [it] warrants concern."
The Supreme Court is looking specifically at education in considering these cases, but their decision could have impacts for other industries as well.
Feingold emphasized the importance of affirmative action in employment, saying it remains "a potent mechanism to make processes just more fair and neutral, such that the people who should have been there from the beginning are there now."
Atkins also warned that depending on what the court says in their ruling, there could be a "domino effect" in other areas.
"Here, we are talking about just the context of education. However, if they're holding that the consideration of race is a violation of the equal protection clause, then I think that we will see a domino effect in other cases that could be touched," Atkins said.
But, this would not necessarily be a bad thing, Heritage Foundation senior legal fellow Hans von Spakovsky told Fox News Digital. "I hope anywhere where race is being used for purposes such as awarding scholarships, hiring, will realize that they cannot do it."
"What the folks who support this are doing is setting up the same kind of racial spoils system that our civil rights laws were intended to stop, and the only thing they are changing is who benefits and who hurts," von Spakovsky added.
Harvard's policies may even violate the Civil Rights Act, Angela Morabito, spokesperson for the Defense of Freedom Institute told Fox News Digital.
"It is painfully obvious from what Harvard and other elite institutions are doing is they are discriminating in their admissions process based on race," Morabito said. "And under Title VI of the Civil Rights Act of 1964, it is illegal for any institution receiving federal funding to do that. It's just not right."
And while supporters of affirmative action warn of a decrease in diversity on campuses, Jeremy Rovinsky, a prosecutor and former dean of the National Paralegal College, predicted that doing away with race as a consideration in admissions policies could increase the number of Asian Americans in higher ed institutions.
"I don't know that anyone can really predict the future… but I think that, at least in the short run… if it goes in the direction of [SFFA], then we're going to see more Asian representation at Harvard, and more Asian representation, therefore, stemming into the corporate world from Harvard and from the top schools."
Edward Blum, the President of Students for Fair Admissions said if the Supreme Court rules in favor of Students for Fair Admissions, it will "restore the color-blind legal covenant to American universities and colleges."
"If the Supreme Court rules that race is unconstitutional, then we will go back to what the principles of what our civil rights movement is all about," he added. "And those principles are a student's race and ethnicity shouldn't be used to help him or harm him in gaining admissions to a college or university."
Virginia's Lieutenant Governor Winsome Sears submitted an amicus brief to the Supreme Court in the case, calling the court's previous decision in the Grutter case "dangerous," and noting the 25-year expiration date. Sears told Fox News Digital that it was important to create a K-12 educational system that works for everyone, so race is not necessary.
"Ultimately, history will prove us right, because we have tried race-based discrimination, and it doesn't work," she told Fox News Digital. "What this is about is educational opportunity. We have to ensure that all children have access to those opportunities, so they will be able, on their own, without race-based policies, to be afforded the ability to gain entry into these universities. That's the issue, and the children don't have it."
While the Supreme Court is not expected to announce a decision on the case until 2023, recent rulings have shown that the justices are not afraid of usurping set precedent, and even them taking the case illustrates a willingness to overturn the Grutter case.
"I think the Supreme Court chose to hear it because the composition of the court is different," Holley said. "That's the only change. These plans are no different than other plans, the only difference is that the composition of the court has changed, that's why many people believe the court is primed to strike down that long-term precedent."
The court choosing to take up the case led Herman to believe they may rule in favor of SFFA, overturning past precedent. "I would be hopeful that since they decided to take this case up, that they are ready to revisit their precedent from 2003 and that they're ready to say once and for all that our Constitution does demand colorblindness and that the color of people's skin should not be considered when being admitted to college," she said.
David Bernstein, the Executive Director of the Liberty and Law Center at the Antonin Scalia Law School at George Mason University also said he predicted that the Court would find the Harvard and University of North Carolina admissions plans as unconstitutional.
"I think there is any doubt about the willingness of the court to be more aggressive about this, it was dispelled by the abortion case," he said. "When it comes to affirmative action, the elite will cry and scream and get very upset… but these sorts of policies have always been extremely unpopular in the American public, even in California."
Regardless of predictions, the long-term ramifications of the case will depend on how the court rules, Bernstein added.
"If they issue a really stringent opinion that completely bans the use of race in college admissions, and probably elsewhere, that could have really strong reverberations," he told Fox News Digital.
"If the Supreme Court issues a stringent ruling that bans the use of race entirely without any real outs, that could have a really significant effect on how race is used by the government. If, however, they continue the pattern they've had in the past where they say we disfavor using race by government, but here are some circumstances which they'll use it, that loophole will be used by government entities to continue doing what they're doing," he added.
Pappoe also emphasized that how broad the ramifications of the decision are will depend on how the court writes it.
"If the court… says very specifically that admissions policies that consider race are unconstitutional, then that's limited. But if the court comes out swinging and says policies that consider race in any capacity are unconstitutional, then of course, that leads to a much wider net," she added.
In the end, it comes down to "basic fairness," Rovinsky said. "What's at stake is, in a sense, basic fairness, people being judged as they are, their achievements, not just the color of their skin, or their racial background."
Despite the speculation and predictions, Rovinsky noted "you never know how a court can decide, the best we can do is speculate."
Kelsey Koberg is an Editor with Fox News Digital.
It is clearly un-Constitutional as well as being racist, yet many university's are heavily involved in granting racial preferences. In this case Asian-Americans have been discriminated against in the name of "diversity." Those who run many of our colleges & universitys see Asian-Americans as taking slots away from "Latinos" and blacks because due to many Asian-Americans taking education seriously, they are "overrepresented." Their success gets written off by these woke educators as a kind of a quirk. In their pursuit of being inclusive, the woke have become racist.
College admissions based on merit versus skin color? Imo that should be a no brainer, but the woke left does not believe in academic achievement as a criteria.
Maybe a ruling by the SCOTUS might help.
The schools in CA ignored a state law which banned it in 1996, so who knows if it will mean anything to the lawless left.
Its illegal under federal law, unconstitutional and unpopular, should be 9-0, and everyone will be happy.
You have justices like Kagan saying the Court must rule in line with popular polls, so I can't see how any justice can vote for racial discrimination.
We shall see. We do have a new justice on the Court.
Oh, I know there will be 3 justices (on the case Jackson is sitting) who believe because they support it, its Constitutional.
I just find it amusing that the justices (particularly Kagan, the supposed smart one) who just a few months ago claimed the legitimacy of the Court depends on following public opinion, will turn around and support a position with about the same level of public support they claim just created a crises.
It really is laughable. The Consitution is clear, yet we prepare ourselves for a 5-4 decision.
I think it is "fair" to consider whether affirmative action is still necessary.
However, that isnt really the point of complaints about affirmative action. For a certain type of person, opposing affirmative action is a justification for white grievance. The next level of white victimhood.
Prior to affirmative action racial minorities were kept out of colleges and kept out of jobs. How could that be justified? Is it "fairness" to have people of color vastly under represented in the better colleges and better jobs and professions?
The question is has affirmative action completed its work? I'm not sure that a right wing Supreme Court is the place to decide the matter.
The point of the complaints is that it violates civil rights law, it's unconstitutional and perpetuates racial discrimination by the government, all of which are bad things for any society that wants to live under the rule of law and believes in racial equality.
If the Supreme Court had a 6-3 liberal majority they could easily find constitutional justification for continuing affirmative action. Then it would be "constitutional" , wouldnt it?
The Constitution means whatever the current court says it means, and the outcome of cases is predetermined by the ideological makeup of the Court.
If you believe in a living constitution, yes. Then literally anything is possible.
If the Constitution was not a "living" document, slavery would still be legal and women would still not have the right to vote. The ability to change the Constitution is written into the Constitution and is what makes it a "living" document.
I have a question for ya.
Assuming the country eventually changes the way many on the radical left wants: what happens when whites become a minority and poor white kids are really failing in education. Will those now "benefiting" from affirmative action be willing to extend it to them?
Your obsession with maintaining white advantage in this society is a little disturbing.
I believe in equality. Evidently you don't.
BTW, this lawsuit does not involve "whites."
No you dont, you believe in maintaining the superiority of the "western" way of doing things. aka the white way.
it is so obvious.
The Constitution?
Yes, I believe in it and the premise that people are to be judged on the content of their character.
Now you are anti-science?
Why won't you answer his question?
Riiiiiight. So he supports an action that would result in more "eastern", "non-white" kids getting into top schools..... Naturally. *eyeroll*
They were?
Read on.
so the fuck what?
I apologize for insulting you, John. I just thought you and others would be interested in knowing that opportunities for higher education have been available to all people in the US, regardless of race, since at least the early 19th century.
"Read on."
He won't. Because then he would have to admit he could be wrong, and that's something he vehemently dislikes.
It doesn't matter to me. I posted it for anyone who was interested in learning about the real history of US higher education.
The abject racism of this statement is amazing. Why do you feel people of color can't compete without your help John? or do you think the admission officers at major universities are racist?
In talking about fairness in affirmative action please clarify something here. Are you fact implying that, as far as college admission, especially for blacks, race and ethnicity should be considered before merit and academic achievement?
“A place like Princeton could fill their entire beginning freshman class with students who have scored perfectly on undergraduate metrics. They don’t do it because it would not make for a diverse class on the metrics that they think are important for success in life.”
Supreme Court Justice Sonia Sotomayor
Exactly, Princeton has a very diverse class of students representing the entire range of political philosophy. The class of 2026 has 1 student from UT, 1 from WY, 1 from ND, 1 from SD, 2 MT, 2 AL but none from Maine. The round out the class with 166 from NY, 149 from CA, 225 from NJ, and 63 from MA.
I think you left a few students out.
1+1+1+2+2+166+149+225+63 = 610
They have 5,548 undergrads.
That's around 1387 per year.
I did, I left out the middle states, would you like to fill them in?
I take it you are claiming they are lacking students from red states. Maybe those types lack the "necessities".
Exactly, diversity can be so overrated.
The under represented blacks can join forces with the under represented red staters. What do you think?
Under represented, how?
answer your own questions once in a while, will you? jeez
Aren't racial quotas rather out of date?
It was your assertion, don't care to explain it? Jeez.
So the answer to my question was yes.
Well maybe...just maybe... we are going to have to start educating black kids before they go to college.
The roar of cricket chirping is deafening. I really didn't think I would get a answer on my question.
Well... to be fair... mine wasn't actually a question, and I don't know what other people are doing when they're AFK.
And John is right about under-representation, which is why this decision could be so important.
If universities are not allowed to offer special exemptions to black or Latino students, there will be nowhere to hide from the statistical fact that our public schools do not educate them as well as white or Asian kids.
The situation now is basically like an NFL coach who gets a 30 pt lead at the beginning of every game, so he wins 9 games a year. If you take away the automatic 30 points (racial preference for black kids), suddenly that coach only wins 2 games/yr, and everybody sees that he wasn't any good to begin with.
We've known for decades that black kids score lower on standardized tests than their white counterparts, and we've made absolutely every excuse possible to explain it away without having to admit that our education system is rife with the bigotry of low expectations. It's waaaaay past time to confront this issue.
Agreed.
What seems to be missing in pro-affirmative action discussions are the atrocious K-12 schools impoverished Blacks and Hispanics/Latinos have been forced to attend for decades. Why don't we improve those schools, thereby increasing student success by providing the students with better trained teachers, up-to-date books and materials, etc.? Why do we continue force students who can't afford elite private schools to go to the public school that's been assigned to them by their ZIP Code?
Many of those schools are located in cities controlled by one party, who use the school system for patronage for their supporters and profit centers for their donors. Educating kids to succeed is not a priroity and actually cuts against the long term interests of the party, that depends upon the support of those dependent on handouts from the government the party controls.
Let's also remember that the party to which you allude receives multi-millions of $$ in political donations from the NEA and AFT and their state/local affiliates.
You are giving a political party MUCH more credit than they are due.
They don't think past the next election. They pander, they get re-elected.... lather, rinse, repeat.
Are there no whites or Asians in those schools? If you wanted to create zones by Zip Codes where "affirmative" action was placed that could be a separate discussion, by there is a group who believe that people based on skin color are just unable to overcome obstacles that whites and Asians can. That by definition is racism.
According to some people, it seems that there aren't.
This stated by Justice Ketanji Brown Jackson, the SCOTUS candidate who was unable (or unwilling) to define what a woman is. How is it possible that she now knows what "a full person" is when mere months ago she was unable to define what a woman is? Weird.
There was a funny moment when one of the justices asked what happens if an applicant pulls an Elizabeth Warren
Response : Assume they ae lying
Affirmative action was wrong when it was first forced on America and should be removed in it's entirety
This is how dishonest the pro AA lawyers have to be. They simultaneously argue:
(1). Race is never a decisive factor in admission
(2) Removing race as a factor will dramatically reduce the numbers of certain minorities.
they contradict and disprove their whole argument