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by Brian Chau
Thursday, 29
June 2023

Bureaucrats will find ways around the Supreme Court ruling

Race is still allowed to be considered indirectly in applications
by Brian Chau
Protestors in front of the US Supreme Court at an earlier hearing. Credit: Getty

The Supreme Court has delivered its long-awaited decision on affirmative action, in the case of Students For Fair Admissions v. Harvard. By a 6-3 majority, the court concluded that Harvard illegally discriminated against Asian Americans. 

The ruling challenges the heart of social justice ideology. “Eliminating racial discrimination means eliminating all of it,” the majority decision reads. Harvard and other American universities have long practiced affirmative action policies which result in different standards for different races. According to a brief quoted in the decision, “[a]n African American [student] in [the fourth lowest academic] decile has a higher chance of admission (12.8%) than an Asian American in the top decile (12.7%).”

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The majority declared that “both programs lack sufficiently focused and measurable objectives warranting the use of race, unavoidably employ race in a negative manner, involve racial stereotyping, and lack meaningful end points.” It is a ruling against the existing procedure of affirmative action, but not the ultimate goal or ideology. 

The decision does not completely ban the use of race as a factor, however. “Nothing in this opinion should be construed as prohibiting universities from considering an applicant’s discussion of how race affected his or her life, be it through discrimination, inspiration, or otherwise.” While the court asserts that Harvard “may not simply establish through application essays or other means the regime we hold unlawful today”, it far from prevents Harvard from using new methods of racial balancing.

Indeed, Harvard’s alternatives may harm higher education even more than its existing programmes. As social scientist Richard Hanania writes:

The experience of California, where affirmative action was banned by referendum, is also instructive. In recent years, UCSD has started rejecting more students from largely Asian high schools and accepting more from those that are largely Hispanic. Under a narrow ruling in SFFA, this would be legal, as long as the university could argue that it was only using some criterion that was a proxy for race, rather than using race to judge the applications of specific individuals.
- Richard Hanania

Justice Clarence Thomas identifies similar issues in his concurrence: 

Both experience and logic have vindicated the Constitution’s color-blind rule and confirmed that the universities’ new narrative cannot stand. Despite the Court’s hope in Grutter that universities would voluntarily end their race-conscious programs and further the goal of racial equality, the opposite appears increasingly true. Harvard and UNC now forthrightly state that they racially discriminate when it comes to admitting students, arguing that such discrimination is consistent with this Court’s precedents. And they, along with today’s dissenters, defend that discrimination as good.
- Clarence Thomas

These concerns highlight the dangers of a highly ideological class of diversity bureaucrats, which will continue to seek new ways to evade laws as long as they are employed. 

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Jim Veenbaas
Jim Veenbaas
2 months ago

Progressives and activists only care about race when it comes to the Ivy League foot soldiers defending their ideology. No one cares about the kids living on the south side of Chicago.

J Bryant
J Bryant
2 months ago

These concerns highlight the dangers of a highly ideological class of diversity bureaucrats, which will continue to seek new ways to evade laws as long as they are employed.”
I totally agree. At this point, the so-called “march through the institutions” seems complete. The only hope I see is the poor economic outlook for many universities, and the advent of remote learning.
There are too many universities now chasing a shrinking demographic of students. The students are also realizing that higher education often provides little benefit in the job market but burdens them with debt. And the pandemic brought on-line learning to the fore. These factors will likely winnow out the weakest universities and pressure the remaining colleges to provide more market-oriented education.
As has been written about on Unherd, the traditional university might increasingly become irrelevant with continuing on-line and community-level education, oriented to practical skills, becoming the norm. No doubt, though, the Ivies, with their huge endowments, will continue to thrive and spawn bizarre ideologies.

Hugh Bryant
Hugh Bryant
2 months ago

“But how will black people be indoctrinated in the ideology of the elite if we can’t get sufficient numbers into the brainwashing centres”

Charles Hedges
Charles Hedges
2 months ago

Is the descrimination against Jewish and Asian people because the products of the expensive private schools are not bright enough and need competition prevented ? Allowing in less able students also removes competition for not bright enough students from the the expensive private schools. Money and mediocrity trumps scholarship.