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Forty-five years and a day after one Supreme Court justice opened the door to race-based college admissions in Regents of the University of California v. Bakke, six justices closed it. The Court has finally recognized that Justice Lewis Powell’s allowance of an “educational diversity” rationale has led to a system of racial discrimination that the Constitution prohibits.
Chief Justice John Roberts, writing for the majority, acknowledged what advocates of color blindness have long known: “Eliminating racial discrimination means eliminating all of it.” For far too long, colleges and universities have been given a blank check, under Bakke and its 2003 follow-up, Grutter v. University of Michigan, to use race and ethnicity to confer benefits on applicants from certain groups, while penalizing applicants from others. Such policies violate the principle of equal protection because, as Roberts put it, the Harvard and UNC programs at issue “lack sufficiently focused and measurable objectives warranting the use of race, unavoidably use race in a negative manner, involve racial stereotyping, and lack meaningful end points.”
The last bit bears repeating. Even if racial preferences could once have been justified by America’s sordid racial history—though the remedial rationale failed to gain a majority in Bakke—a sunsetting had to be contemplated to permit, even temporarily, such an extraconstitutional practice. The need for an expiration date is even stronger for such a flimsy rationale as educational diversity, which both supporters and opponents of race-conscious admissions have long recognized as a stand-in for other social-justice goals.
Indeed, at the end of her opinion in Grutter, Justice Sandra Day O’Connor wrote: “We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.” In those words was the assumption—the same one held by those who first implemented affirmative action in the 1960s—that gaps in educational achievement between black and white Americans would eventually shrink and thereby render racial preferences unnecessary.
Alas, that has yet to happen. Instead, affirmative action has been extended to include other “underrepresented minority” groups, like Hispanics and Native Americans, and used to penalize Asian Americans, who have been deemed overrepresented in higher education. Nobel Prize–winning economist David Card, who served as Harvard’s expert witness in this case, predicted that if admissions to America’s most storied college were based only on high school GPA and standardized tests—objective measures of academic preparation and merit—black enrollment would decline from 14 percent to 6 percent, and Hispanic enrollment would decline from 14 percent to 9 percent. Asian American enrollment, on the other hand, would rise from 24 percent to 27 percent, while white enrollment would rise from 40 percent to 48 percent.
Advocates of affirmative action have taken this to mean that we need more racial preferences for black and Hispanic students, not less. This view is misguided—and not just because race-conscious admissions, as the Court recognized, violate the Equal Protection Clause. It’s also misguided because it ignores a major cause of today’s educational achievement gap between “underrepresented minorities” and whites and Asians: poor K-12 education.
The latest Nation’s Report Card, a congressionally mandated assessment administered by the Department of Education, shows that reading and math scores for U.S. 13-year-olds have hit their lowest point in decades. While this decline occurred for most racial and ethnic groups, black and Hispanic children were among those who suffered the greatest learning losses.
Part of the problem may be that traditional public schools are dumbing down their curriculum, whether in favor of ideological indoctrination or just to hide academic outcomes. In California, where more than 60 percent of all public-school students are black and Hispanic, “equity” advocates have spent the last few years lobbying the state board of education to stop offering algebra in eighth grade and calculus in high school. No wonder fewer than 10 percent of black and Hispanic students are expected, per Card’s estimations, to get into Harvard based on test scores alone.
As the last several decades have shown, affirmative action can’t fix the educational achievement gaps that exist between underrepresented minority children and their white and Asian peers, which open up years before a student applies to college. Providing all children, regardless of race, with the opportunity to receive a strong elementary and secondary education—by championing parental-choice programs, expanding charters, and holding students to high academic and disciplinary standards—is a better solution.
In any event, this is only the end of the beginning of the fight for equality in educational opportunity. Higher-ed grandees have long interpreted the Court’s cautious approval of the temporary use of race (as one of many factors) as a green light for a permanent diversity-industrial complex. They will not go quickly into the color-blind night of merit-based admissions; they will fight for workarounds to maintain their system of racial spoils, even as Chief Justice Roberts warns that “universities may not simply establish through application essays or other means the regime we hold unlawful today.”
More litigation will surely follow. But it’s clear that the Supreme Court has no more constitutional patience for university administrators’ use of Justice Powell’s diversity conceit to engage in social engineering. As Justice Clarence Thomas put it in his majestic concurrence, “those policies fly in the face of our colorblind Constitution and our Nation’s equality ideal.”
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