If You Take a Skeleton to Court...

Marina Ziemnick

CounterCurrent: Week of 10/30


Happy Halloween, CounterCurrent readers! Before the hordes of costume-clad children took to the streets yesterday, the skeleton in the closet of American higher education enjoyed a long overdue moment in the spotlight.

The Supreme Court spent nearly five hours yesterday dissecting the arguments in the cases challenging the use of racial preferences in admissions at the University of North Carolina (UNC) and Harvard—and, in particular, the way that “holistic review” is used to systematically discriminate against Asian-American applicants. The Court’s decisions, which will be announced in 2023, have the potential to upend the admissions process at colleges and universities across the country.

The lower courts ruled against the petitioner, Students for Fair Admissions (SFFA), in both cases based on the precedent in two major Supreme Court cases: Regents of the University of California v. Bakke (1978) and Grutter v. Bollinger (2003). These cases provided the legal foundation for the use of racial preferences in college admissions to achieve “the educational benefits that flow from a diverse student body,” and they have propped up discriminatory admissions practices in American higher education for decades.

The SFFA cases reveal the fruit of these preferential policies. In the name of diversity, UNC and Harvard have used racial preferences to boost the admissions of “under-represented minorities,” while penalizing more qualified applicants whose skin color doesn’t advance the university’s agenda. The findings in the Harvard case are particularly shocking: “an Asian-American applicant with a 25% chance of admissions would have a 35% chance if he were white, a 75% chance if he were Hispanic, and a 95% chance if he were black.” In other words, an applicant’s chance of being accepted to his dream school could fall by a full seventy percent simply due to his skin color.

In this week’s featured article, Minding the Campus columnist Wenyuan Wu explains why the SFFA cases will likely bring an end to the legal justification for such blatant discrimination. But even if UNC’s and Harvard’s admissions policies are struck down, that will not be the end of the story. As Wu writes,

The expected rulings will have ripple effects on the entire American education system, from K-12 to higher education. How can we reconcile the constitutionally ascribed principle of equal treatment and the national push for racial diversity? Will the pro tem, elitist bargain of race consciousness finally give way to the principled permanency of constitutional color blindness?

A decision striking down racial preferences in higher education would be a great victory for educational equality, but it is foolish to think that it would automatically bring an end to the practice. Racial preferences are deeply entrenched in American education, and both additional lawsuits and targeted legislative actions will likely be required to dismantle this discriminatory system. As we await the Supreme Court’s decision, now is the time to prepare for the next stage in the battle for fair admissions.

Nonetheless, the mere fact that SFFA had its day in court—and that the systematic discrimination against Asian-American students was at last brought before the public eye—is reason to celebrate. If all goes well, the other victories will come in time.

Until next week.

P. S. Earlier in October, NAS President Peter Wood gave a speech addressing the SFFA cases and the future of racial preferences at a meeting of “Oasis,” an informal group of New York–based academics and intellectuals. You can read the text of the speech online here.


CounterCurrent is the National Association of Scholars’ weekly newsletter, written by Communications Associate Marina Ziemnick. To subscribe, update your email preferences here.

Image: Katherine Kromberg, Public Domain

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