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This article was originally published in The Hill.
Oral arguments before the Supreme Court at the end of this month will provide a dramatic setting for the national debate over the fairness of race-conscious admissions in higher education.
But the drama is not so much in what we will hear—in both these cases, the parties have laid out their arguments already. Lines are drawn across society too. For many, the real issue is how we can fairly address historical inequities in higher education.
Not only have the arguments been made, but to our enormous regret, it feels as if the court’s decision is predictable. We want to be wrong, but the new court makeup, its decision in the abortion case, and other factors are unmistakable signs to court watchers about the outcome here. The Washington Post headline on a Noah Feldman essay put it this way: “Supreme Court will end the era of college diversity.”
If that happens, the consequences for Black students, Hispanic and Latino students, and Native Americans are clear. As the Georgetown University’s Center on Education and the Workforce found, bans on race-conscious admissions in several states were followed by reductions in racial diversity.
“Without race-conscious affirmative action in college admissions, it will be harder, if not impossible, for the nation’s selective colleges and universities to serve a student population that reflects the diversity of American society,” the center’s Anthony Carnevale writes.
“Affirmative action was originally intended to compensate for the harms affecting the people most disadvantaged by our country’s long and still unresolved history of racism. We believe that the playing field for entry to selective colleges will be leveled when their student bodies mirror the demographics of the population. Race-conscious affirmative action in college admissions is just one tool to achieve progress toward this social goal, but it’s a tool for which we haven’t yet found a workable substitute.”
We are still working this out as a nation. Recent polling suggests most Americans support efforts to increase diversity in higher education but nonetheless oppose using race in admissions.
The unwinding of these programs could take another step forward on Oct. 31, the first day of the Supreme Court’s session, when the justices will hear oral arguments on Students for Fair Admissions v. President and Fellows of Harvard College and Students for Fair Admissions v. University of North Carolina.
Both cases assert that the schools’ admissions policies, which take race into account as part of an effort to build diverse and representative student bodies, violate the Civil Rights Act of 1964. The complaint against UNC also contends the university’s policies violate the equal protection clause of the 14th Amendment of the U.S. Constitution.
These cases were brought as part of an effort by Students for Fair Admissions to find plaintiffs who had been denied admission to desired schools and pair them with conservative attorneys.
The group lost a similar case against the University of Texas in 2016, but since then, three new conservative justices—Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett—have joined the court.
Previous courts had shown deference to affirmative action’s nearly 45-year-old history as a legal precedent. However, in the Dobbs decision, which overturned Roe v. Wade, the court signaled that it does not feel bound by longstanding precedents.
If the Supreme Court does rule against Harvard and UNC, the implications of banning this method for promoting diverse student bodies could be profound, in effect prodding America’s colleges and universities to move in one direction while both history and basic good sense are moving in another.
This nation’s march toward diversity accelerates with the dawn of every new day. The most conservative estimates say the United States will stop being a majority-white nation in just slightly more than 20 years.
In recognition of this reality, savvy American businesses are doubling and tripling their efforts not just to diversify their workforces but also to find employees who can work successfully with colleagues, clients, and customers who come from varied backgrounds. Many businesses see these efforts as essential to their success and possibly even to their survival.
This is why so many of America’s largest employers, most prominent colleges and universities, civil rights organizations, and even the U.S. solicitor general have lined up with Harvard and UNC.
The arguments advanced by their amicus briefs follow a similar theme. They contend that colleges and universities render a great common good by educating citizens and workers who are as diverse as America itself. In short, they want higher education to prepare people to meet coming challenges. That is a reasonable expectation.
But what if at least five justices buy this challenge and strike down race-conscious admissions policies? Such a ruling will not change reality. The future still will come.
America’s colleges and universities still must meet that future. The court could make that task harder, of course—but no less essential.Back to News