Q&A of the Day – Does the SCOTUS College Admissions Ruling End Affirmative Action?
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Today’s Entry: @Brianmuddradio Does this ruling mean affirmative action is officially illegal?
Bottom Line: The short answer is that it should. The more pragmatic answer is that from a point of practicality it's a bit more complicated. Yesterday’s 6-2 (Harvard case) and 6-3 (UNC case) rulings on the race-based admissions policies of those two schools put an immediate end to the current admissions processes at both institutions, however the ruling does go much further. In any federal ruling there’s the ability for a decision to be limited or “narrow” which would only impact the case that’s being decided, or in this instance, two separate but similar cases, and the possibility that a decision will be applied more broadly. Some cases naturally lend themselves to broader interpretations based on the subject matter at hand. Last year’s ruling on Mississippi’s abortion law is a similar example. In order for the United States Supreme Court to rule in favor of Mississippi's law, which restricted abortions beyond the limits imposed by the Supreme Court in the Roe v. Wade ruling, the court had to invalidate the Roe ruling which as a result sent this issue back to each state to regulate. Yesterday’s cases involving affirmative-action styled policies for college admission standards were similar versions of a different thing. And it wasn’t just the subject matter involved that has far wider reaching implications – it’s the way the decision was written as well.
Here’s an easy question you’ll no doubt know the answer to. For any employer, is it legal in the United States to discriminate on the basis of race? Title VII of the Civil Rights Act prohibits: discrimination in hiring, promotion, discharge, pay, fringe benefits, job training, classification, referral, and other aspects of employment, on the basis of race, color, religion, sex or national origin. Is the federal government able to discriminate on the basis of race? The answer, of course, is no and it’s explicitly stated in Title VI of The Civil Rights Act: No individual, on the basis of race, sex, color, national origin, disability, religion, age, sexual orientation, or status as a parent, shall be excluded from participation in, be denied the benefits of, or be subjected to discrimination in, a Federally conducted education or training program or activity. So, one might wonder if it’s illegal for governments and businesses to discriminate on the basis race how it’s ok for colleges to do it. The answer, as was rendered by the Supreme Court, is that it’s not.
Shame on Harvard University and the University of North Carolina for suggesting that racial discrimination is ok as long as you’re discriminating against Asians and Caucasians. That’s exactly what their admission polices did. The admission processes at the two schools were slightly different, but in each instance, race was a preeminent factor. The easiest way to explain it is that there were four to six key criteria for consideration being used. One of which was race. The preferred race for admissions to these schools (Black/Hispanic) would provide a leg up to every racial minority that no Asian or White student could compete with. The Supreme Court ruling cited the 14th's Amendment’s Equal Protection Clause, which states: No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. In addressing the question about how broad the ruling was the first indication came between the 3rd & 4th pages of the 237-page ruling where it states: “The inherent folly of that approach-of trying to derive equality from inequality” provides a pretty strong indication. In the official majority on page 18 the extent to which this is a broad decision is evident. Quoting Justice Roberts: In the wake of the Civil War, Congress proposed and the States ratified the Fourteenth Amendment, providing that no State shall “deny to any person . . . the equal protection of the laws.” To its proponents, the Equal Protection Clause represented a “foundation[al] principle”—“the absolute equality of all citizens of the United States politically and civilly before their own laws.” The Constitution, they were determined, “should not permit any distinctions of law based on race or color”. On page 22 it reads like this citing previous case law: These decisions reflect the “core purpose” of the Equal Protection Clause: “do[ing] away with all governmentally imposed discrimination based on race. The clear and central purpose of the Fourteenth Amendment was to eliminate all official state sources of invidious racial discrimination in the States. Eliminating racial discrimination means eliminating all of it. And the Equal Protection Clause, we have accordingly held, applies “without regard to any differences of race, of color, or of nationality”—it is “universal in [its] application.” Picking up on the synopsis on page 47 it states: For the reasons provided above, the Harvard and UNC admissions programs cannot be reconciled with the guarantees of the Equal Protection Clause. Both programs lack sufficiently focused and measurable objectives warranting the use of race, unavoidably employ race in a negative manner, involve racial stereotyping, and lack meaningful end points. We have never permitted admissions programs to work in that way, and we will not do so today. So, is it broad? Yes. Does it effectively imply an end to affirmative action, as in racial quotas? Yes. Does it end affirmative action styled programs? No.
The ruling didn’t state that race couldn’t be a factor. It ruled that it couldn’t be a decider. The ruling provides for that distinction where it states: Nothing in this opinion should be construed as prohibiting universities from considering an applicant’s discussion of how race affected his or her life, be it through discrimination, inspiration, or otherwise. The example it provides for is this: A benefit to a student who overcame racial discrimination, for example, must be tied to that student’s courage and determination. Or a benefit to a student whose heritage or culture motivated him or her to assume a leadership role or attain a particular goal must be tied to that student’s unique ability to contribute to the university. In other words, the student must be treated based on his or her experiences as an individual—not on the basis of race. So, in other words, the racial component would need to be tied to merit based experience that can be evidenced within some type of quantifiable admission framework. So, what happens next?
In the case of college admissions any school which wants to use race as a factor will need to have a defined merit-based consideration for that as part of the process. In time, that could potentially lead to more legal challenges to determine what’s a valid merit-based racial consideration. So meritless affirmative action is dead. The era of merit-based “diversity” programs may just be beginning.