Race, College and the Court
Terry H. Schwadron
Nov. 1, 2022
Listening to the Supreme Court hearing on affirmative action was a supremely uncomfortable reflection of how difficult our conversation about race is in America.
The welter of what-if hypotheticals and questions that led inevitably to absurd ends did not clarify the issues other than perhaps to the conservative-leaning court to refine what felt like a predetermined outcome.
Rather, the comments seemed a wide-ranging flagellation of how poorly we talk about race in this country.
In that context, it was a troublesome set of arguments that offered wishful thinking about supposed equality in this country for the much more difficult questions of trying to look at specifics of how best to approach diversity efforts in education, the military or business.
There was Justice Clarence Thomas, for example, repeatedly asking what the point of diversity is at all in education — or anywhere else where achievement might be mentioned. There were overstated hypotheticals, as with Justice Samuel Alito comparing multi-faceted college admissions with a foot race in which one contestant is given a specific advantage.
There were two overwhelming impressions:
First, the justices would rather not be trying to settle a singular way for colleges and universities to sift through the many more applications for college than the eventual berths. Repeatedly, the questions seemed designed to show that because it is hard for courts or anyone else to make judgments about admission procedures, it would be a better legal case simply to reject the constitutionality of race-conscious policies.
In short it sounded over and over as if the most conservative judges on the court were shopping for arguments to kill affirmative action.
Secondly, the justices clearly had a problem on whether to focus on these individual cases as opposed to their would-be views on the role that race should be playing in daily life — not on the role that it actually plays.
Race as Politics
Oddly to me, feelings on race-conscious education admission programs are seen as the same politically Left and Right divides that seem to color every public issue these days. One would think instead that these issues might revolve around the difficulty in creating rules that account for complexity, not on whether a political side is dominant.
But in a politically hypersensitive world that is inviting all kinds of policies towards a White, Christian nation, there is a sizeable part of America that sees attention to race as a partisan issue.
For example, this court hearing comes as every business, nonprofit and social agency is working like crazy to understand about how to approach diversity in hiring, promotion and consumer-facing programs. The proliferation of efforts towards diversity and inclusion is based on continuing work towards a time when access to schools, jobs, housing, investments and the benefits of American life are available more equitably.
Like the recent wrenching decision over legal abortion, these challenges to legal affirmative action in college admissions will create ripples of upset that will go far beyond the immediate cases before the court from Harvard and the University of North Carolina. Overturning affirmative action will affect workplaces and hiring everywhere, not just affecting who gets into a freshman class.
As with abortion, there is precedent here facing a court that seems to be moving headlong into politically charged policies. The court has repeatedly upheld similar affirmative action programs, most recently in 2016, saying that educational diversity is a compelling interest that justifies taking account of race as one factor among many in admissions decisions. Unlike abortion there is a specific civil rights law here as underwritten authority.
But the change in the court to a conservative supermajority, the skepticism for what has been precedent is suddenly back to Square One. Indeed, one of the most challenging question raised repeatedly yesterday centered on Justice Sandra Day O’Conner, writing in the 1973 decision, setting a putative time limit for consideration of race in college admissions to rectify unequal admissions.
Widespread Effects
Look, the reality here is that any ruling restricting or prohibiting the use of race as a consideration in admissions will fundamentally reshape higher education and will reduce the number of Black and Latino students at many selective college and graduate schools. Presumably, more Asian American and white students will gain admission.
Let’s understand that it is perfectly fine for college to choose students who play defensive end or squash or the oboe, that they can favor legacy children of alumni, that they must balance the number of financial aid students, that everyone won’t have a perfect SAT score (if they even count those at many campuses). Colleges need a diverse community to foster debate. But race — and particularly forms in which there are simple check-off forms — legally can’t be the sole basis of discovering the best candidates.
Unless you’re one of the justices, the underlying question here is why this is before the Supreme Court in the first place. If the Right wants to argue for a more restrictive court system one that discourages activism by judges, the court should simply stay out of this question, allowing colleges and universities to figure it out. If the law is the central question, we have at least three precedents from this very court towards allowing some form of race-conscious thinking to continue.
It is not a big logic leap then to conclude that this and its related cases is a chance for a partisan Supreme Court to simply assert that there is no race question in the United States. Indeed, the court has done so by saying most racially motivated voting rights protections are no longer needed because magically we have achieved equality among racial groups in this country.
Weirdly, that seems hard to square with the daily headlines of disproportionate effects of race on immigration, housing, income, education, or a variety of other social measures.
As it did with legal abortion, the court is positioning itself to make a decision based on fantasy, not reality.
Education still is seen as a tool for equalizing access to corporate suites, professional schools, and middle-class lifestyles. It was hard to find questions in yesterday’s hearings exploring those topics outside of those from the three liberal justices.
At the newsrooms where I worked — and worked specifically on minority recruitment programs — it was a given that to have a staff capable of reporting on the state of the nation, it would need more diversity than could come from one school or one gender or one race. One of the briefs argued yesterday was from a lawyer representing the military, who argued forcibly about the need for race-conscious college admission programs as an avenue to a more diverse military officer corps.
Accounting for race is hard, justices. Ignoring it doesn’t help.
##