Resisting Racial Preferences: A Retrospective

National Association of Scholars

Earlier this week, the Supreme Court heard oral arguments on the twin cases challenging the use of racial preferences in admissions at Harvard and the University of North Carolina. Most legal experts anticipate that the decisions, which will be announced in the summer of 2023, will either partially or completely prohibit the use of race as a factor in college admissions decisions.

The National Association of Scholars (NAS) has long opposed the use of racial preferences in college admissions. The admissions process is a zero-sum game, and any “plus” applied to one category of applications will automatically result in a “minus” on all others. In Harvard’s case in particular, the evidence shows that race-conscious admissions has resulted in systematic discrimination against Asian-American applicants, whose applications are routinely scored down for no other reason than the color of their skin. This blatant racial discrimination directly violates the spirit of equal protection that underlies both the Fourteenth Amendment and our federal civil rights law. We hope that the Court will bring an end to racial preferences in higher education with its decisions in the Harvard and UNC cases and restore equality to college admissions.

NAS has supported the petitioner in these cases, Students for Fair Admissions (SFFA), from the start. We filed an amicus brief when the Harvard case first went to trial in 2018, and NAS President Peter Wood appeared on NPR’s On Point shortly after to discuss the case and convey its importance to the general public. When the Supreme Court agreed to hear the case, NAS filed an additional amicus brief in support of SFFA’s suit against Harvard. The arguments in that brief were referenced numerous times throughout the oral arguments on the case.

But that’s only one aspect of NAS’s work opposing racial preferences. One of NAS’s earliest policy statements, published in January 1991, expressed our strong opposition to race-based admissions and hiring policies, building upon numerous panel presentations and Academic Questions articles on the subject from years prior. In the mid-1990s, NAS members were deeply involved in the campaign against racial preferences in California. In fact, it was NAS members who wrote the text of Proposition 209 (1996), which prohibited the use of racial preferences in admissions to California’s public universities. And in 2020, when a new proposition threatened to overturn Prop. 209, NAS board members spearheaded the effort to oppose the new proposition, which resulted in 53% of voters voting to reject the proposition and maintain the prohibition on racial preferences. When other states have faced similar challenges, NAS has continued to urge voters to stand for fair admissions.

NAS also advocated against racial preferences in an earlier Supreme Court case on the issue, Fisher v. University of Texas. The case challenged the University of Texas’s use of race in undergraduate admissions, and the court proceedings spanned nearly a decade due to numerous appeals and a remand. NAS submitted amicus briefs to the Supreme Court in both the 2012 and 2015 hearings of the case, as well as to the lower courts. Although the Supreme Court ultimately upheld the University of Texas’s admissions policies, the arguments in these briefs laid the groundwork for the ongoing challenges to racial preferences in American higher education.

We have also supported efforts from both the Department of Justice and the Department of Education to hold universities accountable for their discriminatory admissions practices. Harvard and UNC are not the only institutions that discriminate in the name of diversity. During the Trump Administration, Texas Tech University and Yale University both came under scrutiny for discriminating against white and Asian applicants. Although the Biden Administration reversed course on many of the Trump-era efforts to enforce civil rights laws, the Supreme Court’s decision in the SFFA cases could open the door to future legal action against universities that use racial preferences in admissions. NAS stands ready to support those who bring such lawsuits in what we hope will be a new era of fair admissions in American higher education.

NAS and its members have also provided heft to the arguments against racial preferences through numerous publications over the past two decades. NAS President Peter Wood’s 2003 book Diversity: The Invention of a Concept traces the evolution of “diversity” and outlines how the concept is at odds with America’s ideals of liberty and equality. Our 2019 report Separate but Equal, Again: Neo-Segregation at Yale displays the poisonous fruit of race consciousness in American higher education as seen at Yale University, where students are segregated into separate orientations, dorms, and programs in the name of solidarity. Most recently, NAS board member Gail Heriot co-edited the 2022 book A Dubious Expediency: How Race Preferences Damage Higher Education, which emphasizes how racial preferences harm the very students they purport to help. Heriot also published an article last month outlining an agenda for Congress in the event that the Supreme Court sides with SFFA and forbids the use of racial preferences in higher education.

The Supreme Court’s decisions in the SFFA cases are highly anticipated, and the cases will continue to be much-discussed in the coming months. Even if the Court strikes down racial preferences, universities will be eager to find workarounds that enable them to continue their diversity agenda. Our task now is to prepare for this next stage in the battle against racial preferences. Reading—and sharing—our resources on the damage of racial preferences is a good place to start.

Image: Emily Karakis, Public Domain

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