The Supreme Court is expected to make a decision very soon in the cases of Students for Fair Admissions V. University of North Carolina/Harvard College. The decision is expected to eliminate or severely weaken affirmative actions in college admissions. It will also remove or drastically limit race as a criterion that can be used. The Supreme Court’s decision won’t solve the racial problem in America. Instead, it will shift the fight from affirmative actions to “race-neutral” criteria.
In many places, racial neutral criteria have been implemented to avoid any possible end to affirmative actions. They are designed to make it appear that criteria like class rank or zip code is not based on race. According to the theory of racial equality in admissions, it is acceptable to use “neutral” criteria for creating racially-balanced classrooms where affirmative actions were once used.
The current law allows schools to use race as a criterion for admissions as long as they are not the sole basis of the decision. This implied that the goal was diversity (good), and not “whitewashing” (bad). It allowed a country pretending to be a leader in equality to do the exact opposite by enforcing separate standards based upon skin color.
The hypocrisy started with Bakke , in 1978. In this case the Supreme Court ruled that an institution had violated Title VI of Civil Rights Act of 1965 and the Equal Protection Clause of Fourteenth Amendment if they made admissions decisions based on “definite and exclusively” race. This phrase “definite and exclusively basis” was key. Race can be a factor, but not the only one.
The Court found that the use of racial-based quotas by a university in its admissions procedure was unconstitutional. However, affirmative action used by a school to increase minority applicant numbers was constitutional. In this case, the university’s offense was being too obvious; the University of California explicitly held sixteen out of 100 admission spots exclusively for black students instead of just putting its thumb on the scale elsewhere in the process and–presto!–filling those slots with black students.
In Grutter(2003) the Supreme Court upheld University of Michigan Law School admissions policy that used racial preferences (bad) in order to promote diversity. Black applicants were not admitted according to the same standards as other groups. The fudge again was to say affirmative action is constitutional as long as it treats race only as one of many factors, and doesn’t substitute for an individual review of applicants.
Grutter, in 2003, added an interesting note: affirmative action was meant to be temporary, a flawed expedient while society addressed the bigger issues. Justice Sandra Day O’Connor stated, “We anticipate that in 25 years, racial preference will not be needed to promote diversity among students.” What happens now?
The next battleground is likely to be a high-school in Northern Virginia. Thomas Jefferson High School of Science and Technology, also known as “T.J .”– to locals, is considered one the nation’s best STEM high schools. Up until about a decade ago, passing a highly competitive entrance test was the only way to gain admission. Admission to T.J. signified that you were a disciplined, smart student who was willing to work hard, but there was no guarantee of success. This is the perfect description of students who will go on to achieve at MIT or CalTech.
This was not enough in the wake of George Floyd. 73% of Thomas Jefferson High School students were Asian. T.J.’s black students make up only 2 percent. T.J. principal stated, “Our 32 Black students and 47 Hispanics fill three classrooms.” If our demographics were representative of those in the county’s schools, we would have 180 Black students and 460 Hispanics, filling almost 22 classrooms.
The answer is . was replaced with “a comprehensive review” which included “experience factors including students who were economically disadvantaged, English Language Learners, Special Education Students, or currently attend underrepresented middle schools”.
The top students of every middle school (many of which are predominantly Hispanic or black) in the area were also given priority, allowing more non-white, non-Asian, and black students to attend T.J. It is not known that the word “Asian” is a racial slur, implying that Chinese, Thais and Japanese, Koreans or Filipinos, Laotians Indians, Bangladeshis et cetera are all part of a single racial reject pile.
T.J.’s plan worked: the percent of Asian American Students dropped from 73 to 54 percent. The percentage of Hispanic and black students increased from 3 to 11%.
T.J., perhaps anticipating the Supreme Court decision to end affirmative action and despite the obvious racially polarized results, is drawing a line in the sand. It claims that its criteria are racially-neutral and emphasizes the fact admissions officers are not informed of the race, gender, or name, of any applicant. Harvard is also experimenting with using racially-neutral criteria to evaluate applicants in part on likability and courage. Some of these are already covered by Ivy League interview processes.
Who is joking whom? Are racially-neutral criteria merely a workaround for schools in the wake of the end to affirmative action to create a diverse student body that will meet 2023’s woke standard?
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Although it’s unclear whether the upcoming affirmative action case will address the issue of racial equality, courts are aware of it. The Supreme Court ruled on the T.J. Case last year, in the context for an emergency relief application. A divided three-judge federal appeals panel at the Fourth Circuit federal court of appeals allowed T.J.’s revised admissions policy to continue.
In a dissenting opinion that appeared to be addressed to the Supreme Court at some future time, Trump-appointed judge Allison J. Rushing wrote that the majority refused to “look past [T.J.’s] neutral varnish,” instead considering “an undeniable race result” and “an undisputed motivation.” The Constitution’s equal protection guarantee would be “hollow if governments can intentionally achieve discriminatory means under cover of neutral methods.”
The Supreme Court ruled that affirmative action, which discriminated based on race, was constitutional. Now the courts are going to have to decide whether racially-neutral criteria is constitutional. This issue will likely be brought before the Supreme Court in the fall after the demise of affirmative actions.
