Race Wars Come to the Court

No sooner had the Supreme Court alarmed higher ed leaders and their elite allies by agreeing to revisit its past support for racial preference—thus ensuring months of contentious culture war conflict over the possibility that it might adopt Chief Justice Roberts’ aphorism in Parents Involved (“The way to stop discrimination on the basis of race is to stop discriminating on the basis of race”)—than the impending storm was engulfed in another produced by the announcement of Justice Breyer’s resignation.

President Biden has reaffirmed his campaign promises to select his nominee for the Court using the same criterion that he used in selecting Kamala Harris as his vice president—limiting the field of candidates to black women. “As president, I’d be honored, honored to appoint the first African American woman,” he stated in February 2020, just before the South Carolina primary. “Because [the Court] should look like the country. It’s long past time,” a promise he repeated during the candidates’ debate in South Carolina: “I’m looking forward to making sure there’s a Black woman on the Supreme Court to make sure we in fact get everyone represented.”

The coming debate over this selection criterion is sure to be as entertaining as it will be heated. I look forward, for example, to hearing how those who believe the Court is a representative body will explain why nominating a black woman—a member of a group that makes up about 6.5% of the U.S. population—will make the Court look more like America than a Hispanic man, who represents about 9.5% of the population.

In any event, it appears virtually certain that the Court will soon be joined by a new Justice selected from candidates limited by race and sex, just as it is about to decide how much latitude universities have, if any, to use race in admissions. How odd, and how insulting to the new Justice, the only one on the Court who will always have an asterisk next to her nomination.

President Biden’s forthright selection criterion may seem at odds with affirmative action admissions, all of whose practitioners and defenders have since Bakke constantly sung the same tune like a broken record: that race is “only one factor among many,” and only a small “tip” of a factor at that. A closer look, however, reveals that Biden’s and Harvard’s racialist approach have much more in common than it appears.

To understand why, one must be aware of the duplicity that pervades the defense of racial preference, such as the claim that promoting “diversity” is the real reason for limiting Asians and whites in order to admit more blacks and Hispanics, rather than the real reason: engineering outright racial balance. A good, if extreme, example of this duplicity was provided two years ago by President Biden’s teammates, Democratic officials in the state of Washington, who attempted to repeal the state law banning racial preference passed by over 58% of voters in a 1998 initiative. (See my “A Duplicitous Attempt to Rescue Affirmative Action” and follow-ups here, here, and here.)

Briefly, the language that appeared on the Democrats’ initiative ballot was purposefully deceptive. It stated that if the proposed initiative passed, it would restore affirmative action into state law, but only if it did not employ “the use of quotas or preferential treatment.” Buried deep in the fine print, pages later where no one would see it, however, was the ballot’s definition of racial preference: “the act of using race, sex, color, ethnicity, national origin, age, sexual orientation, [etc.] … as the sole qualifying factor to select a lesser qualified candidate over a more qualified candidate.”

[Related: “Harvard, UNC Cases Give SCOTUS Chance to End Racial Preferences for Good”]

That definition, of course, would have put out the welcome mat for any and all racial preference policies that have ever been used, since no such policy has ever used race, etc., as “the sole qualifying factor.” The University of Washington, for example, following the Biden model, would have been allowed to announce that it was limiting a search for a Constitutional law professor to black females, since race and sex would not have been the sole factors considered—she would have to be qualified to teach Constitutional law—just as President Biden will no doubt consider more than race and sex when selecting a nominee (e.g., her legal accomplishments).

This leads us to the broken-record, “only one factor among many” mantra. Here are a few examples:

  • Justice Powell in Bakke, where it all started: Race “is only one element in a range of factors a university properly may consider in attaining the goal of a heterogeneous student body.”
  • Blackmun in Bakke: “I join my Brothers BRENNAN, WHITE, and MARSHALL …. It is gratifying to know that the Court at least finds it constitutional for an academic institution to take race and ethnic background into consideration as one factor, among many, in the administration of its admissions program.”
  • Justice O’Connor in Grutter: “The Law School’s current admissions program considers race as one factor among many, in an effort to assemble a student body that is diverse in ways broader than race.”
  • Justice Kennedy in Fisher: “The University of Texas at Austin considers race as one of various factors in its undergraduate admissions process.”
  • Judge Biggs in SFFA v. UNC: “UNC Uses Race as One of Multiple Factors in Recruiting Prospective Students.”
  • Harvard president Lawrence Bacow’s statement upon learning the Supreme Court accepted the Harvard and UNC cases: “Considering race as one factor among many in admissions decisions produces a more diverse student body which strengthens the learning environment for all.”
  • President Bacow’s January 25 letter to faculty, staff, students, and alumni: “Yesterday, the Supreme Court announced a decision that could put forty years of legal precedent at risk. Colleges and universities could lose the freedom and flexibility to create diverse campus communities that enrich education for all. Our admissions process, in which race is considered as one factor among many, makes us stronger….”
  • Harvard’s Brief in Opposition to the Supreme Court granting cert: “Under established precedent, to achieve the educational benefits that flow from student-body diversity, universities may consider race as one factor among many in a full, individualized evaluation of each applicant’s background, experiences, and potential contributions to campus life [p. 2]…. Specifically, the [lower] court found that Harvard uses race only as one factor among many and only as a plus; the magnitude of the tip is comparable to the size and effect of the consideration of race previously upheld by this Court [p. 11]…. Narrow tailoring is satisfied if race is considered as one factor among many in evaluating each applicant’s background, experiences, and potential contributions to the school’s educational environment [p. 14]…. The lower courts found that Harvard considers race flexibly, only as one factor among many, and only as a plus [p.22]…. [SFFA contends that] that Harvard considers race more extensively than the Court was led to believe in Grutter and that Harvard uses race-conscious admissions to penalize ‘disfavored minorities.’ That is simply wrong. Both lower courts found that Harvard considers race flexibly, not mechanically, only as one factor among many, and only as a plus factor [p. 26].”

The argument that race counts “only as a plus factor” is nonsensical. If it counts as a plus only for certain races, then it’s a minus for all others. Similarly, it is true but trivial and irrelevant that race counts only as “one of many factors.” Of course admissions officers consider a whole range of other factors; what matters is how much race counts, and for whom. What makes the mantra duplicitous is the intention to deceive through its implication that race counts for little, is only a “tip,” and is merely one small thread in a quilt of many colors.

If the Court were to put an end to affirmative action as it is currently practiced (putting a heavy thumb on the racial scale), the only effect would be to take one factor, race and ethnicity, off the admissions table. All the other factors that, the mantra claims, dwarf race in the process would be left in place. Consider, as a comparison, student athletes. Admissions committees consider their athletic ability as only “one factor among many”—they have to be high school graduates, etc.—but how many of them would be admitted if their athletic ability could not be considered?

The best refutation of the mantra comes, ironically, from those who proclaim it the loudest, which brings us back to Harvard. “If Harvard were to abandon race-conscious admissions,” its Brief in Opposition states, “African-American and Hispanic representation would decline by nearly half.” In other words, as I noted here several days ago, “half the blacks and Hispanics at Harvard were admitted because they were black or Hispanic … unless one thinks saying they would not have been admitted if they were not black or Hispanic says something different.” If that’s a tiny “tip,” I’d like to see a large one.

In fact, there is strong evidence that Harvard underestimated the extent of its racial preference in admissions. The university’s own Office of Institutional Research (OIR) published several reports in 2012-2013 based on a detailed study of the preceding 10 years of data, some of which was made public in the district court trial. It found that, if admissions officers only considered academics, blacks would have made up .067%—two-thirds of one percent—of the entering classes, instead of their actual 10.46%. By contrast, the proportion of Asians would have increased from their actual 18% to 43%. The OIR data is thoroughly analyzed and its tables translated into helpful graphs in an impressive review by Althea Nagai of the Center for Equal Opportunity, which you may find here. Analyzing more data even more extensively, SFFA’s expert witness, Duke economist Peter Arcidiacono, found in his Expert Report for the plaintiffs (p. 10) that eliminating the consideration of race and gender would reduce the proportion of blacks admitted from 11.1% to 2.4%.

[Related: “Anti-Asian Discrimination at the Heart of the Progressive Education Agenda”]

Harvard, of course, is not unique in the weight it places on race. “Eliminating race as a factor in admissions will significantly reduce minority admissions,” avid supporter of preferences and UC Berkeley Law School Dean Erwin Chemerinsky has just written in the Los Angeles Times. And in her Grutter opinion, Justice O’Connor described the testimony of University of Michigan expert Dr. Stephen Raudenbush:

In Dr. Raudenbush’s view, a race-blind admissions system would have a “‘very dramatic,’” negative effect on underrepresented minority admissions. He testified that in 2000, 35 percent of underrepresented minority applicants were admitted. Dr. Raudenbush predicted that if race were not considered, only 10 percent of those applicants would have been admitted. Under this scenario, underrepresented minority students would have comprised 4 percent of the entering class in 2000 instead of the actual figure of 14.5 percent.

The main difference between President Biden forthrightly selecting a black female justice and President Bacow engineering a racially balanced class is the latter’s lack of honesty, and the fact that the courts up until now have tolerated the “one factor among many” obfuscation that has disguised it. When President Bacow proclaims that “Harvard does not discriminate,” he cannot mean to deny that Harvard raises and lowers admissions hurdles differently based on race and ethnicity; there is simply too much contradictory evidence. What he means is stated clearly in the phrase that follows his semi-colon after “does not discriminate”: “our practices are consistent with Supreme Court precedent.”

If Chief Justice Roberts meant what he said about the way to end racial discrimination, now is the time for him and his Court to end it for good. And the best way to do that is to decide, 42 long years after Bakke refused to do so, that Title VI actually means what it says: “No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.”

Sadly, progressives no longer believe in the Civil Rights Act’s non-discrimination principle. They believe “equity” requires favoring preferred groups and penalizing others. If they ever succeed in abolishing the filibuster while they control the House, they should act on their current beliefs and repeal the Civil Rights Act too.


Image: MarkThomas, Public Domain

John S. Rosenberg

John Rosenberg blogs at Discriminations.

One thought on “Race Wars Come to the Court”

  1. The argument that race “counts as only one factor” is blatantly dishonest and reprehensible. Who says all of the factors are weighted evenly when considering admission? I would note universities never state how much an applicant’s race counts toward admission. If the goal is to create a more diverse student body—which has never been shown to have any real measurable benefits—then it makes sense that the race of the applicant would count much, much higher than say the high school GPA or SAT/ACT score.

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