The 18th Amendment and the U.S. Supreme Court: Where do the justices stand? Why universities have the right to reject students from elite schools?
The chief justice exempts military academies from having to follow the ban on race-conscious admissions in light of their potentially distinct interests.
What’s especially interesting in Thursday’s opinions is not where the justices disagree but where they agree: The Equal Protection Clause allows for race-conscious programs, as long as they are narrowly tailored to meet a compelling government interest. In fact, the opinion explicitly permits affirmative action in military academies, in what seems to be an acknowledgment that diversity in the armed forces remains a national priority. The real debate is where to draw that line. What sort of harm is sufficiently clear to allow an exception to the 14th Amendment? Affirmative action was allowed by the court for nearly half a century. It moved that line on Thursday.
The Harvard case has resonance because the school imposed Jewish quotas in the 1920’s and 30’s to limit the number of Jewish students. It has allowed SFFA’s lawyers to say that Asians are the new Jews. It is possible that Harvard decided to have a large-scale trial that lasted more than two weeks, because of the link to history. And when the dust settled, both the district court judge and the court of appeals found “no evidence” of discrimination against Asian Americans — a fact that Harvard’s lawyer, Seth Waxman, repeatedly emphasized on Monday.
The Harvard case hit a variety of nerves for the justices. There are five people who have a deep connection to the school. Justice Jackson was not able to be involved in the case due to her work on the Harvard Board of Overseers. She was a member of the four justices who attended Harvard College, Harvard Law School or both. Justice Antonin Scalia taught at the law school for six years, but also served as dean.
The University of North Carolina, one of the country’s oldest public universities, and Harvard University, the country’s oldest private university, were found to have violated the equal protection clause by the Supreme Court.
So we’ve wound up with a system where rich kids dominate elite schools. In a study done in the year 2017 by an economist, he was able to show that poor students were 77 times more likely to be rejected from the Ivy League than students from the top 1% of income levels. More children from top to bottom are from families of the top 1 percent when you have school after school.
In the 1950s, Harvard University decided they weren’t just going to accept sons of the elite. They have to accept people from a wider range of American society. They decided that G.P.A. and the SAT test would be more important, and everyone who qualified would be able to get in.
On the whole, I’m probably sad that affirmative action is going away, but I’m hopeful that we can take advantage of this moment, whether we’re angry about it or happy about it, to think in a much bigger way about who should get into what schools. We need to look at the whole system and make a system that works for all of us, regardless of background.
More than 40 years of precedent was overturned when the Supreme Court denied race-conscious admissions in higher education at Harvard and the University of North Carolina.
Affirmative action got a brief honeymoon of public support, before it was met with a huge backlash and began to be attacked ever since. Legislation has made it harder to use racial preferences. And now, in a 6-to-3 decision, the Supreme Court has consigned them to the grave.
The intensity and duration of the attack proves that many Americans are unwilling to acknowledge the barbarity of our racial history. Every period of progress for Black people has been met with a racial backlash. Reconstruction was the reason why the new mythical history of slavery was developed by Southern white people. More than a century later, this insistence on denying history lives on. Witness the laws in a growing number of conservative states that prohibit teaching the truth about racial oppression, with dismissal and possibly even jail for teachers who dare to defy them.
Be it for an acceptance letter or a tenure-track professorship, the incentives at elite universities encourage and reward racial gamification. This will only get worse now that the Supreme Court has rejected affirmative action in college admissions. The rise of affirmative action produced, inadvertently, a culture of racial gamification by encouraging so many students and their parents to think about the ways race could boost or complicate their chances of admission; the end of affirmative action, in turn, will just exacerbate things by causing students and parents to get even more creative.
Can race be a barrier to higher education? The Californian high school black-origin student admissions system confronts the 2020 California college admissions ban
“However well-intentioned” the policies at UNC and Harvard were, Roberts wrote, the universities failed to use them within the confines of the narrow restrictions that previous court rulings had allowed.
Researchers from Georgetown University ran simulations to see how race would be taken out of college admissions. Unless a major redesign of the college admissions system was undertaken, there would be a decrease in ethnic diversity at certain colleges.
In the simulations, removing race and relying on different combinations of high school grades, test scores, or social-economic indicators did not yield more ethnically diverse classes.
“As an admissions officer you have to be aware of who is going to be a qualified candidate, and the more information you can gather about that individual, the better you are going to be.”
Mabel says current admissions criteria reinforce disparities in educational opportunity that exist in the K-12 system, and that research has shown that at highly selective colleges, “students admitted with lower grades and scores are just as likely to succeed as the rest of their classmates.”
In 1996, California voters approved Proposition 209, an affirmative action ban at public universities in the state. Before the ban, UC Berkeley and UCLA were roughly representative of the California high school graduate population who were eligible for enrollment at universities, according to Zachary Bleemer, an economist at Princeton University.
She wonders, for example, whether a program designed to increase the number of Black doctors — with support to complete the pre-med curriculum and get into medical school — will now be challenged.
The incoming class of ’98 started the ban. Diversity went down at UC’s most competitive campuses. That year, enrollment among Black and Latino students at UCLA and UC Berkeley fell by 40%, according to a 2020 study by Bleemer. Black and Latino students who might have gotten into those two top schools, were more likely to go to a less competitive campus after the ban.
OiYan Poon, a visiting education professor at the University of Maryland, College Park, points to early court filings from the plaintiffs in the Harvard case, arguing to end “any use of race or ethnicity in the educational setting” — not just in admissions.
That tells me that there are some things to look forward to. “But are those pathways forward the most effective ways of trying to achieve more racial equity within college admissions? No.”
After California banned race-conscious admissions in 1996, the proportions of Black and Latino students at UCLA, one of the most highly selective schools in the state’s system, fell drastically. A decade later, 95 Black students joined the freshman class of almost 5,000. They became known as the “Infamous 96.”
“Black and Hispanic students saw substantially poorer long-run labor market prospects as a result of losing access to these very selective universities,” Bleemer told NPR. “But there was no commensurate gain in long-run outcomes for the white and Asian students who took their place.”
Other ideas for promoting campus diversity include admitting a percentage of the state’s high school students, like the University of Texas at Austin, which automatically admits Texas students in the top 6% of their high school graduating class. Lotteries have also been proposed, where eligible students with high qualifications would be randomly selected for acceptance.
This opinion comes less than a decade since the last time the high court ruled on affirmative action. The court ruled that colleges could consider race in admissions.
In their brief, the chancellors of the University of California said that years of crafting race neutral policies have fallen by the wayside.
The University of Oklahoma remains just as diverse today as when it was banned in 2012 thanks to a brief filed by the attorney general of Oklahoma. The university’s main campus in Norman currently has a U.S. undergraduate student population that is about 60% white and 5% Black.
In the absence of race in the admissions process, Kelly Slay, an assistant professor at Vanderbilt University who studies affirmative action, expects to see colleges increase targeted recruitment, expand financial aid including free-college programs, and go test-optional, in an effort to maintain their ethnic and racial diversity.
But, she says, “we don’t have anything that works as effectively at producing and enhancing racial diversity as race-conscious affirmative action. Over twenty years of data and research have come from us.
The Impact of the 14th Amendment on Black Lives in Higher Education and the Diversity of the U.S. Science and Technology, Engineering and Mathematical Sciences
The 6-3 ruling, split on ideological lines, reflects the court’s rightward turn under Republican President Donald Trump, who appointed three justices to the nine-person bench.
This decision will not only have sweeping effects on the composition of student bodies, but it could also affect the make-up of staff, says Julie Park, a researcher at the University of Maryland in College Park, whose work focuses on racial equality in higher education. These institutions are part of the path to the professoriate for either better or worse.
For instance, a study published last September in Nature2 found that just 20% of institutions that grant PhDs in the United States supplied 80% of tenure-track faculty members across the country from 2011 to 2020. There are institutions on the list but there are no historically Black colleges or Hispanic-serving institutions.
Park says that if race-conscious admissions are not made, the diversity of future generations of scientists might suffer. The total amount of Hispanics and blacks who work in science, technology, engineering and mathematics (STEM) is under-represented according to the report. (Black people make up around 14% of the US population, and Hispanic people account for nearly 19%.) “I am very concerned, because STEM hasn’t been doing so great, even with race-conscious admission policies in place,” Park says.
It is not true as a matter of history. The 14th Amendment was meant to allow for race-conscious legislation, as Justice Sotomayor made clear on Thursday. The Freedmen’s Bureau Acts helped former slaves secure housing, food, jobs and education, and were enacted by the Congress that passed the amendment.
The bureau was an obvious and essential measure to remedy at least some of the harm that slavery inflicted on Black Americans. The goal of the first affirmative-action programs was the same when they were started 100 years later: to address the decades of state-sanctioned discrimination against Black people that followed Reconstruction. As President Lyndon Johnson said in a 1965 commencement speech at Howard University, “You do not take a person who, for years, has been hobbled by chains and liberate him, bring him up to the starting line of a race and then say, ‘You are free to compete with all the others,’ and still justly believe that you have been completely fair.”
The President of a private, Southern California school worried about the impact of the nationwide affirmative action ban on its racial diversity.
In 2020, the UC system eliminated standardized test scores as an admission requirement, nixing a factor that advocates say disadvantages underserved students.
The Californian Supreme Court is Bringing Back the Civil Rights Defenders: Enforcing Diversity and Equality in Business and Higher-Order Engineering Programs
As the nation’s highest court has grown more conservative, court watchers wondered if it would reverse precedents that allow affirmative action.
As college admissions offices prepare to tailor their policies to the Supreme Court ruling, California offers lessons on what may be in store for the rest of the country.
“They will earn a 5% lower wage than they would have earned if they’d had access to moreselective universities, after 15 or 20 years in the labor market,” he said.
The ban has in fact acted as a deterrent to prospective Black and Latino students, Bleemer said. His study found that high-performing minority students were subsequently discouraged from applying to schools where minority students were underrepresented.
A number of major corporations and businesses filed three briefs with the Supreme Court in support of their policies that help increase workforce diversity and improve company performance.
“Experience in a diverse university environment prepares students to interact with and serve racially diverse client and customer bases and to work with people of all backgrounds,” according to one brief written by over 60 prominent businesses, including Apple, General Electric, Google and Johnson & Johnson.
Plus, to Tillery, many of the larger companies he consults for understand the importance of maintaining race-conscious programs, especially as members of Generation Z and future generations enter the workforce.
“And so while the Supreme Court, they live in a rarefied space where most of us don’t live because we live in the real world, business leaders are going to need to figure out a way to make this work if they’re going to source future talent and sell to future consumers,” he says. “And that’s just the reality of it.”
“Diversity, equity and inclusion work can be categorized as trying to figure out what’s behind the processes that create the gaps in the workforce and then filling them,” Tillery said.
DEI initiatives won’t change overnight, according to Tillery. He says that the programs fall within the scope of Title VII of the Civil Rights Act and that the companies have the ability to modify their language.
“This ruling means we can strike hard legally in our courts now and win major victories. Miller said the time is right to wage lawfare against the DEI colossus.
Conservative political messaging in the last few years has done away with DEI-style programs. Several right-leaning groups have already begun calling for further action, including America First Legal, a nonprofit run by former Donald Trump adviser Stephen Miller that’s focused on doing away with race-focused policies.
Tillery says he expects the mainly conservative groups that backed Students for Fair Admissions’ lawsuit — which was the subject of the Supreme Court’s ruling — to shift their focus in part onto race-conscious programs in the workplace.
“I already think that there are going to be some real repercussions,” said Alvin Tillery, a political science professor at Northwestern University, who runs a consulting firm that works with organizations and companies, including Google and Abbott, on DEI-related programs.
Even though the opinion is focused on higher education, legal experts say that it may lead to changes in commonplace workplace initiatives such as diversity, equity and inclusion.