Illustration: Shoshana Gordon/Axios
The end of affirmative action, at least on college campuses, is almost certainly near.
The big picture: The Supreme Court said in 2003 that colleges and universities can consider race as a factor when deciding which students to admit, in an effort to build a diverse student body. But now the much more conservative court seems to be changing its mind.
Driving the news: The court is due to hear arguments this week on the admissions processes at Harvard and the University of North Carolina, both of which give slightly more weight to applicants from certain underrepresented groups.
- Life is full of surprises, but the court has sent just about every signal imaginable that it is likely to put an end to these kinds of policies.
Why is this important: Harvard and UNC – supported by a host of other schools, as well as professional organizations – argue that diversity is essential to the educational experience and that the only effective way to ensure diversity is to make it an explicit part of the admissions process.
- But they will present that argument to a court that is extremely skeptical of any kind of racial preference.
- “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race,” Chief Justice John Roberts wrote in a 2007 opinion on the use of race when assigning children to public schools.
- From voting rights to K-12 education to labor law and probably now college admissions, the court over the past few years has consistently rejected programs that attempted to address inequities. racial lines with explicit consideration of race.
All of this is largely the work of one man. Conservative activist Ed Blum organized and funded a series of high-profile lawsuits explicitly designed to get the court to overturn affirmative action.
- He orchestrated a 2013 case in which a white student sued for not getting into the University of Texas – and the sequel, in which the same student returned to the High Court in 2016.
- This time around, the plaintiffs named are not just white students, but also Asian Americans, who say they have been discriminated against because of the way Harvard and UNC prioritize applications from black students. and Hispanics.
- It’s not a particularly secret business. Blum is open that this is indeed a campaign and that he is the campaign manager.
- “I’m a one-trick pony,” Blum told Reuters recently. “I hope and care to end these racial classifications and preferences in our public policy.”
- Blum also played a role in the landmark case that struck down a key section of the Voting Rights Act – another case in which the Tory court said policies designed to offset a history of discrimination had lost their usefulness. .
Between the lines: The fact that it is a conservative 6-3 court is part of why legal experts believe affirmative action is likely to lose, but there are other signs as well.
- Lower courts in the Harvard and UNC trials upheld the schools’ admissions policies. If a majority of the Supreme Court thought these were the right decisions, there wouldn’t be much reason to agree to hear an appeal.
- The Supreme Court also took the UNC case to a federal appeals court. Taking a case faster than usual, with no disagreement between the lower courts, is widely seen as a sign that the Supreme Court wants to at least eliminate its affirmative action precedents, if not overrule them – and as we have all learned , this court is ready to go all the way whenever it wants.
- Judge Ketanji Brown Jackson has recused herself from the Harvard case. She was unlikely to be on the winning side anyway, but without her vote it will be that much harder for the Liberals to cobble together a majority.
And after: Oral arguments begin Monday at 10 a.m. The Harvard case will go first, then UNC. You can listen to the pleadings live on the court’s website.
- A decision is expected by the summer.