Douglas Andrews / October 31, 2022

The End of Racial Discrimination?

A conservative Supreme Court hears opening arguments today on a pair of high-profile cases involving racial discrimination in college admissions.

Is the Supreme Court finally committed to color-blindness? Finally committed to striking down the age-old scourge of racial discrimination? Finally committed to insisting that Americans are to be judged, as Dr. Martin Luther King dreamed, not by the color of their skin but by the content of their character?

If the rumblings around a pair of cases now before the High Court are to be believed, the answer is yes. Today, the justices will hear oral arguments in Students for Fair Admissions v. Harvard College and SFFA v. University of North Carolina, both of which challenge the racially discriminatory admissions practices of their respective schools. As the Wall Street Journal editorial page notes, the outcome will affect racially discriminatory practices beyond college admissions:

The case is an important moment for American law but even more for the country’s social and political future. America is becoming increasingly diverse. Yet rather than assimilate this melting pot with race-neutral principles, many in our political class want to divide America into racial categories, allocating jobs, benefits and even elections based on race.

The Biden Administration is trying to embed this practice across the federal government and impose it on the private economy. This is a destructive trend that will inevitably lead to more racial balkanization and enmity.

How could it not? One statistical analysis from the North Carolina case noted that an out-of-state Asian-American has only a 6.5% chance of admission compared to 57.7% for an equally credentialed black. Another analysis found that a white out-of-state male with a 10% chance of admission would have his odds improve to 98% if he were black.

Put another way: Students for Fair Admissions, which brought both lawsuits, says: “An Asian American in the fourth-lowest decile [of Harvard’s academic index] has virtually no chance of being admitted to Harvard (0.9 percent); but an African American in that decile has a higher chance of admission (12.8 percent) than an Asian American in the top decile (12.7 percent).”

That’s the difference between equality and equity. Or, as Chief Justice John Roberts put it back in 2006, the “sordid business” of “divvying us up by race.”

Affirmative action, that sweet-sounding euphemism for government-sanctioned racial discrimination, has been plaguing our nation for decades. It does so by stigmatizing whites as irredeemably racist and blacks as hopelessly incapable. In college admissions, affirmative action has had the Supreme Court’s blessing since its ill-considered Bakke decision in 1978, which allowed the camel’s nose of racial preferences to get under the tent. With the Court’s equally awful 5-4 decision in the University of Michigan’s 2003 Grutter v. Bollinger case, racial discrimination became standard operating procedure at our colleges and universities.

The Court’s great mistake in Grutter was to allow race-based discrimination in admissions so long as it was in the pursuit of that noble goal of a diverse student body. Of course, diversity comes in many forms beyond mere skin color, such as the political leanings of a university’s faculty, but those considerations never factored into the Grutter decision.

And that’s how the pursuit of diversity, an invented concept and a word that appears not once in the Constitution, somehow trumps that document’s numerous proscriptions against racial discrimination. As columnist George Will, himself a former college professor, writes: “The diversity rationale for racial discrimination in admissions … is mocked by campuses that offer racially segregated dormitories, graduation ceremonies, etc. And by the survey of Harvard’s class of 2025 showing that 72.4 percent are predominantly liberal, and 8.6 percent are very or somewhat conservative. And by the fact that since the court embraced the ‘diversity’ rationale for racial discrimination, universities have become markedly more intellectually monochrome and intolerant.”

The Grutter decision also invited mischief by way of its complexity. “The Court set some guardrails,” notes the Journal, “including that race may only be a ‘plus’ factor, cannot ‘unduly harm’ non-minority applicants; and must be considered alongside ‘all’ forms of diversity. Universities were also required to consider race-neutral alternatives and to ensure that racial preferences are ‘limited in time.’”

Yeah, right. How’s that “limited in time” directive working out? Justice Sandra Day O'Connor tried to sell us the Grutter opinion by assuring us that racial discrimination wouldn’t be necessary 25 years hence. But here we are, 19 years later, and things have only gotten worse.

As the Journal reports: “The plaintiffs in Harvard and UNC argue that the schools violate Title VI of the Civil Rights Act, which bars recipients of federal aid from discriminating by race. The Fourteenth Amendment’s equal protection clause also prohibits states, including public universities, from discriminating by race.”

Surely colleges and universities that set a lower admissions bar for blacks and Hispanics than they do for whites and Asians are discriminating by race. And given this seemingly air-tight argument, we wonder: What on earth has the Supreme Court been waiting for?

It will be a glorious day when government-sanctioned racial discrimination is struck down once and for all, but we’d be naive to think that the leftists who control our colleges and universities will blithely accept such a ruling. Their preference for preferences will continue on, especially if the Court’s ruling affords them what Will calls “a semantic fog” through which to avoid accountability. He writes, “Colleges will continue allocating opportunity through racial discrimination, thus continuing their adversarial stance regarding the national aspiration for a colorblind society.”

If SFFA wins, the academy will accelerate its abandonment of standardized tests such as the ACT and SAT, which will allow them to focus on more “holistic” credentials, such as an applicant’s name or zip code or means of expression.

Fourteen years ago, this nation election a mixed-race president, the son of a white mother and a black father. And we did so despite the fact that his middle name was “Hussein,” he was the most liberal member of the Senate, and he was perhaps the least experienced candidate ever put forth by one of the two major political parties.

That our leftist colleges and universities still feel a need to discriminate against certain races in their admissions processes is an un-American, anti-constitutional disgrace. It’s about time to make good on what Chief Justice Roberts said 15 years ago: “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”

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