Sunday Jan 29

Winter 2022

COMMUNITY DEVELOPMENT CORNER - Equal Education Next Target for the Supreme Court

The Supreme Court is hearing arguments in two cases brought forward by Students for Fair Admissions against Harvard University and the University of North Carolina at Chapel Hill.

The Supreme Court has struck down the Federal guarantee for abortion rights, gutted key parts of the Voting Rights Act, facilitated racial gerrymandering – and is about to weaken the nation’s commitment to equal education opportunity. In the twin cases of Students for Fair Admissions v. President and Fellows of Harvard College and Students for Fair Admissions v. University of North Carolina, the Court has chosen to hear challenges to admissions programs designed to enhance the diversity of the student body and the educational experience of all students at the nation’s oldest public and private colleges – Harvard and the University of North Carolina (UNC).

This is a central attack on what has long been considered the most instrumental vehicle for achieving equal opportunity in the U.S. – the nation’s educational system.  As Massachusetts educator Horace Mann famously argued in 1880:

Education, then beyond all other devices of human origin, is the great equalizer of the conditions of men – the balance wheel of the social machinery.

 Apparently this Supreme Court does not share the views of Horace Mann or many previous Justices.  The immediate issue is whether colleges and universities like Harvard and UNC can consider an applicant’s race as one of several factors (over 40 in the case of UNC) in a holistic review of individual applicants as part of an effort to create more diverse student bodies at their respective schools.  The Supreme Court itself has already affirmed such policy and practice several times starting in 1978 (Regents of University of California v. Bakke, 438 U.S. 265, 1978; Grutter v. Bollinger, 539 U.S. 306, 2003; Fisher v. University of Texas at Austin, 579 U.S. 365, 2016).

More to the point,  lower courts have recently affirmed the constitutionality of the Harvard and UNC programs.  There are no splits among the lower courts that the Supreme Court needs to reconcile.  Several legal experts have noted that the challenges presented by Students for Fair Admissions (SFFA) are wrong on the law and wrong on the facts.  But given the current make-up of the court, with a strong 6-3 conservative majority now in control, the challenges are aligned with its prevailing ideology and will very likely carry the day.

The force behind the challenges is Edward Blum, a long-time opponent of race-conscious policy who created the organization Students for Fair Admissions (SFFA) to bring such suits. His basic argument is that federal law requires colorblindness and race neutrality in college admissions.  He points to the following legal actions for support:

  • 14th Amendment to the Constitution which calls for “equal protection of the law”;
  • The Supreme Court’s decision in Brown v. Board of Education 347 U.S. 483, 1954 which declared “separate but equal” policies to be unconstitutional; and
  • Title VI of the Civil Rights Act of 1964 which reads in part “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.”

According to these two lawsuits against Harvard and UNC, the previous decisions of the Supreme Court that affirmed their admissions practices were wrongly decided then and continue to be wrong today, and therefore these cases should be overturned. An additional wrinkle to the Harvard case is the charge that Asians are discriminated against in its admissions practices.

But contrary to Blum’s assertions, the statutes and court decisions that SFFA relies upon do not in fact dictate rigid colorblindness or race neutrality:

14th Amendment. As the defendants and several other legal experts have noted, the Congress that promulgated the 14th Amendment also enacted many clearly race-conscious legal actions as part of the efforts to bring the former slaves into the mainstream of American society.  Perhaps the most frequently noted is the Freedman’s Bureau, created in 1865 to help formerly enslaved people become self-sufficient. As Georgetown University law professor Sheryll Cashin observed, the Bureau “offered a phalanx of goods and services to Black Americans in order to facilitate the transition from slavery to full citizenship.” The newest member of the Supreme Court, Justice Ketanji Brown Jackson, observed in reference to the 14th Amendment that “The entire point of the amendment was to secure the rights of the freed former slaves.”

Brown v. Board. As for Brown, Washington Post columnist Ruth Marcus noted that this case “dealt with state-imposed segregation that excluded and subordinated children on the basis of their race – not with action aimed at bringing the races together.” Consequently, as the NAACP Legal Defense and Educational Fund stated in its amicus brief, SFFA’s position “would transform Brown from an indictment against racial apartheid into a tool that supports racial exclusion.”

The Civil Rights Act of 1964. This statute was enacted at a time when violence was flaring up in hundreds of cities around the country.  That law addressed issues of employment discrimination, educational inequality and other obviously race-based inequities.  It was not a siren call to neutrality or blindness but rather an effort to change the material conditions of racial and ethnic minorities in the US. As Lyndon Johnson stated in his famous Howard University commencement address in 1965:

You do not take a person who, for years, has been hobbled by chains and liberate him, bring him up to the starting line of a race and then say, “you are free to compete with all others,” and still justly believe that you have been completely fair…We seek not just legal equality as a right and a theory, but equality as a fact and equality as a result.

But SFFA will likely prevail.  As noted above, the Court did not have to take this case.  Again, there were no splits in the lower courts to reconcile.  The arguments made by SFFA were rejected and the Harvard and UNC admissions programs were affirmed previously in District and Appeals courts decisions. So it certainly appears that at least the conservative majority wanted to take this case, and not for the purpose of simply reaffirming again.

When oral arguments were presented at the Supreme Court on October 31, members of the conservative majority were openly hostile to the defendants. Justice Clarence Thomas said, “I’ve heard the word diversity quite a few times, and I don’t have a clue what it means.”  Thomas and the conservative majority chose to ignore the expert testimony that was presented demonstrating the educational benefits for all current students and, perhaps more important, for their lives when they leave college and take on the wide range of leadership positions that graduates of Harvard and UNC assume.

Chief Justice John Roberts and Justice Brett Kavanaugh expressed concerns about when consideration of race to achieve diversity would end.  Perhaps it is naïve but maybe the answer is simply when race and ethnicity matter no more than the color of one’s eyes in shaping the opportunity structure in the US.  Or, for example, when racial wealth disparities disappear or life expectancy is the same for all racial or ethnic groups.  Unfortunately these rebuttals were not offered by the defendants.

In explaining that race actually is a determining factor for just a small share of the qualified candidates who are considered, an attorney representing Harvard stated “Race, for some highly qualified applicants, can be the determining factor, just as being the, you know, an oboe player in a year in which the Harvard-Radcliffe orchestra needs an oboe player will be the tip.” But Roberts quipped “Yep, but we did not fight a civil war about oboe players. We did fight a civil war to eliminate racial discrimination, and that’s why it’s a matter of concern.”  What Roberts failed to grasp is that the war was fought not simply to assure race neutrality and colorblindness, but to materially change the lived experience of blacks in the U.S.

For several reasons proponents of equal education opportunity have feared what this court might do if it heard a case involving race-conscious admissions.  The questions posed during oral arguments did nothing to ameliorate that fear.

SFFA’s brief, of course, includes the widely quoted statement from Roberts in the 2007 case striking down voluntary school desegregation programs in Seattle and Louisville that “The way to stop discriminating on the basis of race is to stop discriminating on the basis of race.” (Parents Involved in Cmty. School v. Seattle Sch. Dist. No. 1 551 U.S. 701,747).  But to paraphrase Justice Jackson’s observation about the 14th Amendment, the entire point of the Harvard and UNC admissions programs and the legal framework that supports them, is to create a more diverse environment that will advance the basic rights of people who have been denied those rights which will enhance the education of all students. As I stated previously in these pages, there is a critical difference between race-conscious policies designed to exclude, intimidate, and exploit and those that are designed to break down those barriers, include traditionally marginalized populations and create a better environment for all.  (“The Right is Wrong on Race, Again” Social Policy Spring 2022). Apparently this distinction is lost on the Chief Justice. But contrary to Roberts, as Justice Harry Blackman wrote in the Bakke case, “In order to get beyond racism, we must first take race into account.”

There is no magic bullet to create equal education opportunity. While schooling institutions have been the way up and out for many, in several ways they have long been instruments that contribute to the perpetuation of structural inequality. At the K-12 level, student tracking systems; reliance on local property taxes as the primary funding mechanism, and the resources wealthy parents can provide (SAT preparation, summer travel opportunities, music lessons, etc.)  all bring societal inequities into the nation’s schools. The same dynamic plays out in higher education institutions thanks to such factors as legacy and development admissions (where children of likely prospective donors get an edge); early admission programs requiring students to decide on an admission decision before they know their financial aid budget; and unpaid internships students from wealthy families can take to pad their resumes while others are forced to take paid jobs during their college days, and more. 

Educational institutions alone cannot be the balance wheel Horace Mann hoped.  As education historian Jean Anyon wrote in her 2005 book Radical Possibilities:

Policies such as minimum wage statutes that yield poverty wages, affordable housing and transportation policies that segregate low-income workers of color in urban areas and industrial and other job development in far-flung suburbs where public transit does not reach, all maintain poverty in city neighborhoods and therefore the schools.  In order to solve the systemic problems of urban education, we need not only school reform but reform of these public policies as well.

So there are limits to what Harvard and UNC can do to address these issues.  But prohibiting any consideration of race in the admissions process is a significant step backward.  And this is the direction we are headed as we will find out when the Supreme Court issues its decision next Spring.  I hope I’m wrong.  But I would not bet your children’s tuition on it.


Gregory D. Squires is a Research Professor and Professor Emeritus in the Department of Sociology at George Washington University