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Seven years ago, I wrote in City Journal about my daughter’s parent-teacher conferences at the Bronx High School of Science. In the halls that day, I saw “white, yellow, brown, and black faces—not exploited ‘people of color’ but concerned parents, eager to help their kids succeed.” Their children attended a school whose color-blind admissions exam and four years of rigorous education celebrated hard work and merit. I prayed that our society was “moving past the culture of grievance that has poisoned our society and distorted our politics.” With its ruling in Students for Fair Admission, the United States Supreme Court has advanced that cause.
The Court struck down consideration of an applicant’s race in making admission decisions as violating the Constitution’s Equal Protection Clause. Both Harvard (a private school) and the University of North Carolina (a public one) explicitly used race to tilt their admissions decisions, harming otherwise qualified Asian applicants.
The Court has long held that exceptions to equal protection must meet the rarely satisfied “strict scrutiny” test. Proponents of racial classifications must demonstrate that such measures “further compelling governmental interests” and are “narrowly tailored” to achieve that interest. In Regents of the University of California v. Bakke (1978), the Court first held that obtaining the educational benefits that presumably flow from a racially diverse student body was indeed such a compelling interest. But it has struggled ever since to determine how to balance that interest against the unease that racial discrimination generates and how long to let it continue.
The Court held that the time had come to end the explicit use of race to tip the admission scales. Citing the landmark 2003 decision in Grutter v. Bollinger that upheld affirmative action but narrowed the use of race in admissions, Chief Justice John Roberts noted in his majority opinion that “‘[e]nshrining a permanent justification for racial preferences” would offend “the Constitution’s unambiguous guarantee of equal protection.” He continued: “‘[A]ll race-conscious admissions programs [must] have a termination point’ . . . their ‘deviation from the norm of equal treatment’ must be ‘a temporary matter.’”
The decision does not bar universities from seeking other means to diversify their student bodies. It says that schools can consider a candidate’s discussion of how race has affected his life, such as through discrimination. But it cautions universities against using subterfuges to recreate their previous explicit consideration of race: “universities may not simply establish through application essays or other means the regime we hold unlawful today.”
Justice Sonia Sotomayor penned a dissent, joined by Justices Elena Kagan and Ketanji Brown Jackson, that argues for the continuation of “race-conscious” admissions. Sotomayor considers the U.S. “an endemically segregated society where race has always mattered and continues to matter.” She claims the constitutional guarantee of equal protection “can be enforced through race-conscious means in a society that is not, and has never been, colorblind.”
Sotomayor spends many pages documenting the history of discrimination against black Americans. It includes more than two centuries of slavery, ended by the Civil War, and a subsequent century of de jure and de facto discrimination. The 1954 Brown v. Board of Education decision marked the beginning of the end of statutory discrimination. De facto discrimination persists, though anyone who has recently been in boardrooms, classrooms, and the highest levels of government, including the Oval Office, Congress, and the Supreme Court’s own conference rooms, would be hard pressed to argue that we have not made enormous progress.
There is no denying our nation’s sordid past with respect to the treatment of black men and women. But it is worth noting that Justice Lewis Powell’s opinion in Bakke—which, though no other justice joined it, ended up being the deciding and most influential opinion—held that the goal of “remedying . . . the effects of ‘societal discrimination’” was not sufficiently compelling to satisfy strict scrutiny because it was “an amorphous concept of injury that may be ageless in its reach into the past.”
Sotomayor could have chronicled an ugly history of discrimination in this country against Asian Americans, too. What would she say to the parents of the non-white students I met seven years ago, many of whom were discriminated against under the university admission schemes that she supports? Sorry, your kids may have overcome poverty, language barriers, and anti-Asian discrimination through hard work and determination, but they don’t have the “right” skin color.
In my earlier article, I noted that 40 years prior, I attended another of New York City’s specialized schools that relies on entrance exams: Stuyvesant High School. One of my best friends was a recent Chinese immigrant whose family lived in poverty in a crowded tenement on the Lower East Side. “I never heard him complain. He worked hard, was on the math team, and held an afterschool job at a public library branch. After graduation, he attended Cal Tech and Stanford and went on to a successful business career.”
It’s a shame to think that, all these years later, some would still argue that my friend, and all those who follow in his footsteps today, should make way for others because of their race.
Photo by Anna Moneymaker/Getty Images