Supreme Court May Tackle Affirmative Action Next After 'Roe': Here's How It Could Go

Supreme Court May Tackle Affirmative Action Next After 'Roe': Here's How It Could Go

If the majority of U.S. Supreme Court justices hold true and don’t succumb to pressure campaigns against them, the landmark abortion legalization ruling known as Roe v. Wade will be history and the issue will go back to states for their residents to decide.

And after ‘Roe,’ the nation’s highest court could then take on another issue likely to be equally explosive: Affirmative action.

According to John Sexton at Hot Air, in January, justices took a case involving affirmative action in college admissions, with The New York Times reporting:

The Supreme Court agreed on Monday to decide whether race-conscious admissions programs at Harvard and the University of North Carolina are lawful, raising serious doubts about the future of affirmative action in higher education.

“Affirmative action has repeatedly been administered last rites during the last five decades,” Justin Driver, a law professor at Yale, told the paper. “But these two cases unmistakably pose the gravest threats yet to affirmative action’s continued vitality.”

Since the court took on the case, there have been dozens of amicus briefs filed arguing all sides of the issue. On Monday, the site HigherEdDive examined the arguments found in just one of those briefs, which was submitted by Republican attorneys general from 19 states.

It reads:

Argument: Colleges in states that have blocked affirmative action have no problem creating diverse classes

The attorneys general cite data they say shows colleges in states that have dropped affirmative action have no trouble developing diverse student classes.

Oklahoma in 2012 voted to throw out affirmative action in hiring and education. The states contend this had little effect on the share of racial minority students enrolling in the University of Oklahoma.

In 2012, the share of first-year African American students at the U of Oklahoma was more than 6% — this changed very little seven years later. The share of Hispanic first-year students jumped from under 9% in 2012 to almost 12% in 2019.

Sexton noted that he had never before heard an anti-affirmative-action argument framed this way:

Argument: Historically Black institutions don’t have diverse classes but still benefit students

The attorneys generals’ defense that puzzled experts the most was that students who attend historically Black institutions don’t experience racially balanced classes, but still succeed.

Historically Black “institutions don’t exactly meet respondents’ definition of ‘diversity,’ which respondents contend is necessary for minority student success,” the brief states.

This is “wildly disingenuous,” Wong said, adding that it misrepresents the purpose of HBCUs.

These institutions were created as safe havens for Black students who were rejected from colleges because of racial discrimination, [Prof. Janelle] Wong said.

The article contains several rebuttals from policy experts and academics and does not contain any quotes from anyone who agrees with the arguments. And it’s not clear that the argument about the HBCUs will hold up in court, Sexton assessed. Nevertheless, “rhetorically, it’s pretty clever,” he noted, adding that justifying affirmative action all of these years has rested “in part on the claim that more diversity makes for a better education.”

If that is indeed true, then HBCUs would, in theory anyway, “be offering a less than ideal education,” though no one on the left will touch that argument since it runs afoul of their narrative.

Also Monday, Sexton noted, The New York Times focused on another argument that was discovered in a separate amicus brief which the paper suggests may also be a winning argument under the current makeup of the high court:

 Jonathan F. Mitchell, the architect of the law that sharply curtailed abortions in Texas, filed a brief in the Supreme Court the other day. He has moved on to affirmative action.

The filing has elicited rueful admiration from supporters of race-conscious admissions programs in higher education.

“This brief supplies conservative justices with what they may well deem an enticing, elegant approach to dismantling affirmative action,” said Justin Driver, a law professor at Yale.

Mitchell simply argues that instead of tussling over the constitutionality of affirmative action (which really should be the only question, since that is the primary function of the Supreme Court — to decide if statutes do or do not comport with the Constitution, and official racism does not), “the court could simply demand that all recipients of public money comply with Title VI of the Civil Rights Act of 1964, which is clear cut,” Sexton writes.

Title VI notes:

No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.

That’s very basic. Here is a summary of the brief:

The language of Title VI makes no allowance for racial considerations in university admissions. It prohibits all forms of racial discrimination at universities that accept federal funds, with no exceptions for “compelling interests,” “diversity,” or “strict scrutiny.” Harvard is indisputably violating this statutory command by using racial considerations in its undergraduate admissions. And the Court must enforce the statute as written and demand that Harvard stop using racial preferences or forgo federal funds.

It is not necessary for this Court to resolve the more difficult questions surrounding the constitutionality of affirmative action under the Equal Protection Clause. Title VI prohibits racial preferences regardless of whether the Equal Protection Clause should be construed to impose a separate constitutional prohibition on the practice, and the idea that Title VI mirrors the commands of the Equal Protection Clause is textually indefensible and should be repudiated. The Court needs only to enforce the commands of an unambiguous federal statute to resolve this case, and there is no affirmative-action exception to the requirements of Title VI.

“The advantages of this approach are obvious. Rather than head into the weeds, the justices could simply point to the unambiguous text of Title VI to settle the issue. As the Times points out, this could provide the justices with a much simpler solution,” Sexton notes.

A similar situation arose in California last year. A ballot issue was put before voters to amend the state’s constitution in order to push affirmative action in schools to change the current wording, which says: “The State shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting.”

But voters overwhelmingly rejected that, leading Sexton to conclude if largely left-leaning voters in the Golden State rejected it, then the vast majority of the rest of the country would, as well.

That alone gives the high court cover.

“If the Supreme Court were to force colleges and university to adhere to the language of Title VI they would find that the overwhelming majority of Americans would support the decision,” Sexton concluded.


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