After the Harvard Case, What Next?

It is sad that 161 years after Confederates fired on Fort Sumter, and 154 years after the adoption of the 14th Amendment, we are still debating whether public institutions like the University of North Carolina should be able to engage in race discrimination. One might have thought that by now, that issue would have been settled.

Liberals seem resigned to the fact that that they now will have to pretend, at least, to stop discriminating on the basis of race. The New York Times emails out a daily roundup of the news–or “news”–and today’s email included this commentary on yesterday’s Supreme Court arguments:

Laws need support from the public or the courts to survive. Affirmative action seems to have neither.

A telling point.

Throughout nearly five hours of heated arguments for both cases, the justices in the court’s conservative majority aggressively questioned the lawyers arguing in favor of affirmative action policies. They appeared skeptical that such policies were necessary, fair or the best way to address racial gaps in higher education. Chief Justice John Roberts, who has long been skeptical of affirmative action, and other conservative justices suggested that Harvard had discriminated against applicants of Asian descent by disfavoring them in the admissions process.

Is there a difference between “discriminating against” and “disfavoring”? Any sane person would say, No, there is not.

But the Times seems to acknowledge that its battle to preserve a legal right to discriminate has been lost:

Lawmakers can, in theory, override Supreme Court decisions. But such a reversal typically requires support from their constituents: The public, after all, elects representatives who enact laws and place judges on courts. The public can also protest or criticize the courts to try to sway them. And the public can push to amend the U.S. Constitution or state constitutions.
A…movement defending affirmative action seems unlikely because a majority of Americans oppose the policy. Nearly three-quarters of U.S. adults said in March that race or ethnicity should not be a factor in college admissions, a Pew Research Center survey found. A majority of Black, Hispanic and Asian respondents opposed the consideration of race or ethnicity.

Even in liberal states, most voters do not support affirmative action. In 2020, about 57 percent of Californians rejected an amendment to the state’s Constitution that would have let government and public institutions, including public universities, adopt affirmative-action policies. In that same election, Biden won more than 63 percent of the vote in the state.

So if the Supreme Court strikes down affirmative action, it’s not clear what, if any, path exists for policies like the University of North Carolina’s or Harvard’s to survive.

While correct as to public opinion, the Times’s conclusion is perhaps disingenuous. America’s universities will no more accede voluntarily to an adverse Supreme Court ruling than did public schools in the deep South after Brown v. Board of Education. It took not just lawsuits but federal troops to enforce the Court’s ruling that public schools should be integrated, and years went by before it finally happened. This time there will be no federal troops occupying Harvard et al., so we will have to rely on lawsuits.

As a practical matter, perhaps not much will change. America’s universities, especially its elite schools, will rather easily come up with proxies for race, and the composition of their student bodies probably won’t be much different.

Perhaps more important, then, is the principle: America will stand as a country that does not officially countenance discrimination by public bodies on the basis of race. If you thought that principle had already been established, you were mistaken. So this will be an important step forward.

But still: under the new regime, Asian-American students most likely will need to over-achieve, vastly, to be admitted to Harvard and other elite schools. Under whatever cover the schools may adopt, that isn’t likely to change.

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