Race and College Admissions: The Supreme Court’s Train Whistle Docket Just Got a Lot Louder

Below is my column in the Hill on the Supreme Court accepting two cases dealing with racial preferences in college admissions. As with the pending abortion and gun rights cases, these two cases have the makings of yet another major reframing of a long-contested area.

Here is the column:

Last year, I wrote about the Supreme Court’s “train whistle” docket with cases on abortion, guns, immigration, and other issues barreling down the track. Well, that whistle just got a lot louder.

This week, the court accepted two cases challenging racial preferences in college admissions. As with abortion and guns, a majority appears to have formed to bring clarity to an area long mired in ambiguity. For critics, universities have used that ambiguity to evade limits in the use of race in admissions. If the conservative majority has been waiting for the most impactful cases and time to move, it clearly found them in Students for Fair Admissions v. President & Fellows of Harvard and Students for Fair Admissions v. University of North Carolina.

The last time the court dealt with the issue of race in admissions was 2016 in Fisher v. University of Texas. The court upheld the use of race in the admissions process of the University of Texas at Austin by a vote of 4-3. After the decision, the late Justice Ruth Bader Ginsburg noted that, if Justice Elena Kagan had not recused herself, it would have been 5-3 and “that’s about as solid as you can get.” At the time, she said that she doubted “that we’re going to see another affirmative action case … at least in education.”

Ginsburg’s comment notably omitted two additional facts. First, if Justice Antonin Scalia had not died shortly before the release of the opinion, the vote would have been 4-4 (and 5-4 with Kagan). Second, courts change. While she was right about not seeing another such case during her time on the court, this is now a very different court with two of the Fisher majority no longer among its members.

There is now a 6-3 conservative majority on the court, and Chief Justice John Roberts, Clarence Thomas, and Samuel Alito previously voted against the University of Texas. To quote Ginsburg, with three justices previously voting against such race-based criteria and the three Trump appointees, “that’s about as solid as you can get” for a major reframing of the controlling case law.

The court has spent decades issuing often conflicting and vague 5-4 rulings on the use of race in admissions. In 2003 in Grutter v. Bollinger, the Court divided 5-4 on upholding admissions criteria used to achieve “diversity” in a class at Michigan Law School. However, in her opinion with the majority, Justice Sandra Day O’Connor stated that she “expects that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.” That was almost 20 years ago.

In their Fisher dissent, the conservative justices noted that the university was being “less than candid” in addressing its use of race in admissions. They objected to the mantra of achieving a “critical mass” in a class without a clear definition or standards. For critics, that is an understatement. For decades, universities have evaded the impact of court decisions limiting the use of race by avoiding mathematical or threshold criteria that could be challenged. Grutter’s “diversity” rationale used race as one of a number of factors.

The two new cases could not be better suited for a major reframing of the law governing college admissions. The North Carolina case presents the prior question of the use of race to give a preference to Black, Hispanic and Native American applicants to the disadvantage of white and Asian students.

The Harvard case has a novel twist: The university is accused of discriminating against one minority group (Asians) in favor of other minority groups. It allegedly did so through a system that critics believe was little more than a subterfuge for racial discrimination, allowing staff to apply a subjective standard to gauge traits like likability, courage and kindness to lower the ranking of Asian students. It is the type of evasive practice that critics have complained about for years at schools intent upon continuing affirmative action in admission — a practice that was rejected in University of California v. Bakke in 1978.

Since that decision, the Supreme Court itself has become the focus of the controversial use of race in admissions. President Joe Biden has pledged to consider only Black females for the next vacancy, the type of quota system rejected by the court itself for school admissions.

Both the Harvard and North Carolina at Chapel Hill admissions criteria were upheld by lower courts. That was despite the acknowledgement of U.S. District Judge Allison Burroughs in the Harvard case that the criteria clearly disfavored Asian American applicants who “would likely be admitted at a higher rate than white applicants if admissions decisions were made based solely on academic and extracurricular ratings.”

In the North Carolina case, the challengers maintain that the data shows that an Asian American male in-state applicant with a 25 percent chance of admission to UNC would have a 67 percent chance if he were Hispanic and a 90 percent chance if he were an African American. For an Asian American male from out of state with a 25 percent chance of admission, the odds of admissions for an African American with the same scores would be 99 percent, according to their briefs.

If the court accepts this claimed disparity, it could use the case to show that the diversity rationale has been little more than a rationalization for racial discrimination.

With the court possibly moving against race-conscious admissions, universities are already discussing how to continue to seek diversity goals. Just as President Biden and some states are already moving on to “Plan B” for abortion rights in anticipation of a major ruling this year, schools appear to be adopting their own “Plan B.” The universities in the California system and other schools are moving to drop standardized testing in admissions, a move that will make it even more difficult to challenge race as a criteria without such test rankings.

The current docket reads like a list of “unfinished business” for the conservative majority. On abortion, the Court seems ready to ditch the pre-viability standard and perhaps Roe v. Wade itself. On gun rights, the conservative justices also noted a lack of candor in states evading prior limits and appears ready to bring clarity in its upcoming ruling.

As with the gun case, the majority may seek to impose a bright-line rule to address such “less than candid” practices in college admissions. Ironically, while Justice O’Connor was much maligned for her prediction in Fisher that the use of racial preferences in college admissions would not last beyond 25 years, she may have been five years too conservative.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can find his updates on Twitter @JonathanTurley.

69 thoughts on “Race and College Admissions: The Supreme Court’s Train Whistle Docket Just Got a Lot Louder”

  1. White supremacists have a world view that blacks are an inferior race (the definition of “racism” – look it up). While the original goals of affirmative action were laudable (equal opportunity for those equally qualified and the wiping out of racial bias in the same), affirmative action has become “affirmative” in that it has devolved into a bias of admissions or employment of unqualified minorities – ergo – reverse racism. What progressives don’t understand is that when affirmative action goes beyond its original mandate to demanding that unqualified minorities be admitted or hired primarily because of their race, it is a tacit admission to the white supremacists that their world view is the correct one – “blacks ARE inferior”.

    This premise is of course absurd on its face on one level. Progressivism (and minorities – especially blacks) would be much better served in focusing on the underlying sociopatholgies that result in a given minority NOT being qualified. Example: Blacks have a 70% single parent birthrate (CDC Vital Statistics), and 60% of black children grow up with no father residing in the home (US Census). Does single parenthood with multiple children, and no stable father figure contribute to poverty, lack of a educational achievement, and intergenerational poverty? Absolutely. To further expand on that, blacks make up just 13% of the population but account for 56% of the murder victims (FBI UCR 2020), 86% at the hands of other blacks, Sixty percent of all robbery arrests are of blacks. This too lends credence to the false proposition that blacks as a race are inferior.

    Unfortunately we don’t hear progressives evincing an interest in addressing these pathologies within one of their most reliable voting blocks. To do so would admit that 5 decades of progressive Democrat social programs for the lower economic strata have been abject failures. Its time to stop telling blacks “You can’t”. Its time to start demanding that lower income blacks and indeed any minority achieve the potential that God gave them.

    1. A true cynic would say that upper middle class blacks, who benefit most from racial preferences and are politically effective, have an interest in maintaining the poor performance of the black underclass. They in effect borrow this underperformance to construct the statistical disparities that they can then say are caused by systemic racism, requiring the racial preferences from which they, not the underclass, largely benefit. The teachers unions also advocate this, in exchange for support from black leadership in opposition to charter schools and vouchers, which the black underclass want as the best way for their children’s prospects to improve. The Democratic Party is the vehicle for this alliance, and for defund the police BLM radicalism, which also helps keep the black underclass in misery, through the increase in violence in their neighbourhoods. And the Democratic Party’s advocacy of entitlements is both political payoff and a way to perpetuate dependency and permit underperformance.

      The Republican Party needs to find a way to break this constellation of interests that perpetuates the black underclass. Expanding charter schools and voucher programs to break the monopoly of the educational establishment and teachers unions would be a part of this. Eliminating racial preferences would be another. Expanding and improving policing and toughening the justice system would be a third.

      One difficulty is that family structure is largely beyond the reach of politics, and may be fundamental. It is, however, important to recognise that the very high proportion of black children growing up in households led solely by single mothers, many of whom are young, unemployed and poor, is not a legacy of either slavery or Jim Crow. Herbert Gutmann demonstrated this conclusively in The Black Family in Slavery and Freedom. This family structure, and all the negative consequences that flow from it, emerged after the 1960s and appears to have been facilitated by the massive expansion of welfare benefits and a new culture that viewed those who accepted menial work for low pay as chumps and those who strove to do well in school and otherwise meet basic standards of performance as “acting white”. This latter has now been embodied in the anti-racist lexicon as “whiteness”, which includes values such as clarity, objectivity, rationality, punctuality, getting things right, etc. Are there policies that could help change family structure at this point? I don’t know.

      1. Daniel: In reality, there will always be more have-nots than haves; more averagely-educated than highly-educated; more average incomes than high incomes; more “average” talent, intelligence, creativity, ingenuity, energy, and drive-to-succeed, than those with higher levels of these traits. I regret to say that the “Democratic Party is the vehicle” for THIS alliance–knowing that the conglomerate numbers for such an alliance represent a greater percentage than the top group(s). This is how we turn a constitutional Republic into an exclusionary-of-these-traits-but-nonetheless-“equity-driven” democracy. No wonder Ben Franklin lamented we were “a Republic- if we can keep it.”
        WAIT, WAIT, PLEASE–before anyone jumps on my comment,– I am NOT/IN NO WAY saying that whites and Republicans are smarter, richer, more educated, or more talented–indeed we have all races/ethnic groups represented in the TOP group(s). I am merely saying that the “vehicle” used by the Democratic Party to keep its numbers-strength as a political party will run out of gas if we continue to reduce the inequities in our social classes. In other words, the party may derive its strength only by falsely promoting and PERPETUATING the continuance of these perceived “differences” and “inequities.” The survival of this nation depends not on political strength in numbers, but rather, on its smartest, brightest, most creative, most talented, most industrious, most educated, most generous,…and most kind.

        1. Lin, I don’t think it’s correct that the Democrats generally represent the many and the Republicans the few. Rather the Democrats count on the support of specific groups, some of whom are well off some not. They would never again win control of Congress or the Presidency if the Republicans could break their hold over blacks and, to a lesser extent, Hispanics.

          1. Daniel: Thanks for response. The Republicans ALSO “count on the support of specific groups, some of whom are well off some not.”
            -I thought I made that clear when I proffered the caveat that I was NOT saying Republicans were “smarter, richer,” etc.. However, the number of registered Democrats far surpasses that of Republicans. Moreover, Blacks register as Democrats much more often than as Republicans. Why do you think that is so? And who else/what groups do you believe account for the large discrepancy? I say, DNC politicians are the drivers of the vehicles. They know they have to keep their passengers in the backseat as victims on the way to the Democrat’s Hospital -and not drop them off in front of Republican headquarters, which might want to cure them.

  2. Losing their Pro-Choice religion (“ethics”). The metrics of viability of a human life should be consistent at the beginning (baby) and end (granny) of her evolution. A human life should not be aborted (sacrificed) for social, redistributive, and fair weather causes.

  3. SCOTUS prepares a decision on affirmative action while POTUS bull horns his intention to nominate a Justice based purely on race and gender.
    If SCOTUS rules against race based admissions, this likely occurs in June 2022.

    Justice Breyer steps down into forced misandrist retirement.

    Biden spends his last shilling of political capital pushing a PURELY token Justice through nomination to a lifetime appointment after SCOTUS potentially rules RACE based admission is unconstitutional. This blatant TOKENISM is pushed by MSM while such race based hiring is illegal.

    Clown World America.

  4. Lionel space & military train set to the rescue. It has everything needed to stop domestic or foreign aggression.

  5. Watch for Roberts and perhaps others to back off. It is one thing to say things in dissent, quite another to act knowing there will be consequences.

    What they really should do is declare that “diversity” is not a compelling state interest, either for its own sake or as allegedly required to enhance the quality of education. They should also make it clear that promoting proportionate socioeconomic outcomes is also not a compelling state interest. More generally they should say that using race as a factor in decision making can almost never be justified under the Constitution or the Civil Rights Act of 1964. What they need to do is start to roll back the racialist decision making that has permeated our society and economy and that is rationalised by the “anti-racist” ideology of elite decision makers, with its unwarranted advocacy of “systemic racism” as a causal explanation of disparities and its resort to race-based criteria as a solution.

    Doing this will take great strength. Among the Justices, I fear it is only Thomas who appears willing to outlaw taking race into account in admissions and other areas. I believe this is animated not only by his belief that both the Civil Rights Act of 1964 and the Constitution require colour blind conduct, but also by his searing personal experience seeking employment at top law firms after Yale Law School, when he was dismissed as little more than a beneficiary of affirmative action. Roberts and Kavanaugh may not have the stomach for this fight, and I also wonder about Alito, Gorsuch and Barrett.

    The fact that they took two cases suggests to me they may once again avoid decisive action by finding distinctions that will result in different outcomes and allow current practices largely to continue.

    1. “What they really should do is declare that “diversity” is not a compelling state interest… ”

      Daniel, your position is a top-notch, clear and understandable position that carries the weight of many decisions. ‘Simplicity is the ultimate sophistication.’

  6. Obama was robbed of about 100 federal judges with lifetime terms and a U.S. Supreme Court pick also with a lifetime term. So-called Conservatives need to fix this first before complaining about what they themselves created.

    1. Trump was robbed of about four years of his presidency, by hoaxes, a pit-bull media, and phony impeachments. Democrats need to develop a conscience.

    2. “Obama was robbed….” oh please….

      No, the country was spared a disaster called Merrick Garland sitting on the SC.

      1. Hell, we already have to put up with decades of an intellectually unimpressive “latina” named Sotomayor…..thanks to Obama.

        1. Soto’s outlandishly incorrect comments re covid cases in children demonstrated she is neither discerning…nor particularly ‘wise’ enough to be prepared wtih her facts…or she was intentionally spreading misinformation because she is that political…..you decide…..

    3. “Obama was robbed of about 100 federal judges”

      “Robbed”: Was a gun used? Like a wallet was Obama carrying those judges in his back pocket?

    4. Obama robbed America.

      “IGNORANCE OF THE LAW IS NO EXCUSE”

      Barack Obama will NEVER be eligible to be U.S. president.

      Barack Obama’s father was a foreign citizen at the time of his birth.

      – A mere “citizen” could only have been President at the time of the adoption of the Constitution – not after.

      – The U.S. Constitution, Article 2, Section 1, Clause 5, requires the President to be a “natural born citizen,” which, by definition in the Law of Nations, requires “parents who are citizens” at the time of birth of the candidate and that he be “…born of a father who is a citizen;…”

      – Ben Franklin thanked Charles Dumas for copies of the Law of Nations which “…has been continually in the hands of the members of our Congress, now sitting,…”

      – “The importance of The Law of Nations, therefore, resides both in its systematic derivation of international law from natural law and in its compelling synthesis of the modern discourse of natural jurisprudence with the even newer language of political economy. The features help to explain the continuing appeal of this text well into the nineteenth century among politicians, international lawyers and political theorists of every complexion.” – Law of Nations Editors Bela Kapossy and Richard Whatmore.

      – The Jay/Washington letter of July, 1787, raised the presidential requirement from citizen to “natural born citizen” to place a “strong check” against foreign allegiances by the commander-in-chief.

      – Every American President before Obama had two parents who were American citizens.

      – The Constitution is not a dictionary and does not define words or phrases, such as “natural born citizen,” as a dictionary, while the Law of Nations, 1758, does.

      – The Law of Nations is referenced in Article 1, Section 8, of the U.S. Constitution: “To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations;…”

      ________________________________________________________________________________________________________________________________________________________________________________________________

      Law of Nations, Vattel, 1758

      Book 1, Ch. 19

      § 212. Citizens and natives.

      “The citizens are the members of the civil society; bound to this society by certain duties, and subject to its authority, they equally participate in its advantages. The natives, or natural-born citizens, are those born in the country, of parents who are citizens. As the society cannot exist and perpetuate itself otherwise than by the children of the citizens, those children naturally follow the condition of their fathers, and succeed to all their rights. The society is supposed to desire this, in consequence of what it owes to its own preservation; and it is presumed, as matter of course, that each citizen, on entering into society, reserves to his children the right of becoming members of it. The country of the fathers is therefore that of the children; and these become true citizens merely by their tacit consent. We shall soon see whether, on their coming to the years of discretion, they may renounce their right, and what they owe to the society in which they were born. I say, that, in order to be of the country, it is necessary that a person be born of a father who is a citizen; for, if he is born there of a foreigner, it will be only the place of his birth, and not his country.”

      ________________________________________________________________________________________________________________________________________________________________________________________________

      Ben Franklin letter December 9, 1775, thanking Charles Dumas for 3 copies of the Law of Nations:

      “…I am much obliged by the kind present you have made us of your edition of Vattel. It came to us in good season, when the circumstances of a rising state make it necessary frequently to consult the law of nations. Accordingly that copy, which I kept, (after depositing one in our own public library here, and sending the other to the College of Massachusetts Bay, as you directed,) has been continually in the hands of the members of our Congress, now sitting, who are much pleased with your notes and preface, and have entertained a high and just esteem for their author…”

      ________________________________________________________________________________________________________________________________________________________________________________________________

      To George Washington from John Jay, 25 July 1787

      From John Jay

      New York 25 July 1787

      Dear Sir

      I was this morning honored with your Excellency’s Favor of the 22d

      Inst: & immediately delivered the Letter it enclosed to Commodore

      Jones, who being detained by Business, did not go in the french Packet,

      which sailed Yesterday.

      Permit me to hint, whether it would not be wise & seasonable to

      provide a strong check to the admission of Foreigners into the

      administration of our national Government, and to declare expressly that the Command in chief

      of the american army shall not be given to, nor devolved on, any but a natural born Citizen.

      Mrs Jay is obliged by your attention, and assures You of her perfect

      Esteem & Regard—with similar Sentiments the most cordial and sincere

      I remain Dear Sir Your faithful Friend & Servt

      John Jay

  7. There are other ways of admitting minority students without using race-based discrimination. That, however, will not satisfy the financial needs of the race mongers even though it would greatly benefit the minority and society as well.

  8. Like all of the other dumb and immoral things Biden has done, Biden plans to fulfill his racist promise to James Clyburn to put a black female on the Supreme Court and to follow in Obama’s footsteps and give Clyburn’s daughter another federal job. In Joe Biden’s world– and that of most other democrats– blacks simply are incapable of making it on their own and must be moved to the front of every line, whether it is education or the vaccine. Millions of blacks have proven that they are capable of competing in any person’s world. The pandering of old fools like Joe Biden cheapens their accomplishments. When he appoints a black female to the Court she will carry with her the affirmative action label, regardless of her merit.

    1. In many places of this country, even where anti-Semitism was common, the same people frequently wanted a Jewish doctor. Why? Perhaps one reason was the quota on the number of Jews permitted entry into the medical school. This meant the most competent Jews were competing amongst one another. That meant only the best of the best Jews went to American medical schools. We have done the reverse with African Americans, leading to the opposite effect.

  9. “The latest results of an international exam given to teenagers ranked the USA ninth in reading and 31st in math literacy out of 79 countries and economies.”

    Yea, let’s keep admitting students based on flavors not on the size of their brains.

  10. “It is the type of evasive practice . . .”

    Yep. Seen it, first hand.

    I served on the admissions committee for an honors program at a T1 university. We were told to put a certain color of circle stickies on the files for minority applicants. That color sticky (“blue” or whatever) meant to the admissions committee: Find a reason to admit that (minority) applicant. And always, there was the ever-present threat of a “diversity” officer opening an “investigation.”

  11. A person entering college today was born around 2004, 39 years after Civil Rights legislation was passed. If a young person is discriminated against in school admissions because they are not part of a minority group shouldn’t they have the same resentment for the injustice as a minority did in the past?
    Racism is an injustice. Was then and still is now.

  12. (Sort of OT)

    Biden has promised to nominate a black woman for the SC.

    So for that employment, the candidate must be a woman and must be black. (Other sexes and races are not eligible for that employment.)

    In what universe is that criteria *not* sexist and racist?

    1. I have no doubt there are any number of black women who would be excellent nominees. Mr. Biden’s declaration is seen, in some quarters, as evidence of the Democrats’ fear they will lose both the House and Senate in the mid-terms.

    2. There is no specific criteria on who can be appointed to the Supreme Court. The president can nominate anyone he wants. Literally anyone. It’s the senate that ultimately decides whether the appointment is confirmed to the bench.

  13. Universities are burning down their own house’

    They had carved out a pretty sweet gig. Five years to turn a “graduated” out into the work force. A college degree, was the winnowing tool used to eliminate candidates for a job. But the universities could not stand prosperity. They ruined their own product. Turning out a product that could not read and write. Did not know how to learn, lacked work ethic and basic education tools.
    Corporations are shifting from a degree to other standards. So many graduates are ill prepared, it is easier for corporations to take youngsters and indoctrinate them themselves and send them to night classes to learn specific skills the corporation require.

    Black, White, Asian, trans, all equally stupid after spending years in college.

  14. Likability- an interesting concept. Some great minds were not so likable, people tend to not like being told they are wrong and then you prove that they are wrong. Some people are so likable that their personality tends to be a reflection of whoever they are around and you never know who they truly are. Courage- Very hard to define. On the battlefield experienced soldiers will tell you that no one can be courageous every day. It depends on training, motivation, fatigue, recent heavy losses, loss of sleep. Is it more courageous to follow an insane order and do your best or stand up to a commander and tell them that they order is insane and has no tactical merit to justify the losses. The commander and the commanded will likely have different definitions of courage. Kindness-for the long term or the short term. Is it with love or without love. Give it freely or withhold it sometimes when you know it will be misinterpreted as consent to again do something stupid . Incredibly wide range of interpretations. Hence the written tests. Better correlation with written tests than someone’s subjective opinion. Without objective evidence there is no merit (which some in our society regard as racist) and gives carte blanch to admissions officials to do anything they like. Maybe the state legislatures should step in and make the rules. Some will think this unlikable, lacking kindness, and lacking courage. I prefer competence and merit. Kind, likable, courageous is just frosting on a cake that I would eat anyway.

  15. I guess we should brace ourselves for screams of ‘education suppression’ from the left (and oh, what irony that will be) if the prejudice isn’t upheld. Who is the more foolish? Those that see a college degree as a magical talisman that automatically confers merit, skills, mindset (ahem, Obama – ‘A college degree is the new high school diploma.’. He failed to mention that is due to the fact that students learn very little in their primary education this century, and because the schools want the $$$ from ‘graduate studies’ that are now an equal joke)? Or those that believe learning, and an ability to demonstrate that learning in the world and develop further experience in service of others, not limited to self, are the actual litmus test? Never underestimate ignorant and unstable when they’re combined with privilege.

  16. The court will finally unequivocally declare that it is wrong to discriminat on the basis of race. The elites will rebel by taking a page out of Lester Maddox’s playbook: burn down the house. They will eliminate merit altogether and use a lottery system. All applicants above a very low threshold will be assigned a number and then the admitees will be chosen in a random drawing. This should assure the desired outcome. It will destroy these institutions as we know them but, hey, at least it preserves diversity.

  17. Race has become the defining mantra of the Left, regardless of justice, need, or qualifications.

    Just look at Biden’s commitment to nominate a black woman to SCOTUS.

    Blacks are an estimated 14% of the country. Black women roughly half that number.

    So the left is limiting the search to 7% of the population.

    And excluding 93% because “it isn’t their turn”.

    What utter bull pizza; let’s quit defining everything by race.

    1. Monumentcolorado,

      “ And excluding 93% because “it isn’t their turn”.
      It’s not about “their turn”. It’s about adding their perspective. Their experiences are significantly different than what one would consider the majority perspective. Some here have taken their perspective to analyze others from a perspective that has never occurred them. It’s ignorant in just attempting to do so without having the benefit of being in their position.

      1. Svelez, personal perspective is irrelevant, a justice needs to analyze the issue vis a vis the CONSTITUTION and act accordingly. How does being a “wise Latina” affect whether or not a law is UNCONSTITUTIONAL. Were you saying the same claptrap regarding Barrett? Why not have a strong Christian background represented on the Court? How about Thomas, did you support him due to his obvious perspective? Hypocrisy makes you say moronic things.

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