Protesting California's 1977 Bakke decision. Source: Wikipedia
The Court said that race could be an admissions criterion but not the criterion. Colleges could use race to diversify the student body, but they had to design the plan carefully. What would be the goals of affirmative action? How would the college reach them? How would it know when it was there, and when it was time to quit?
This is not a new approach for the Court. It goes back to the Bakke decision of 1978. The Court's problem with Harvard today is that it does not think that Harvard takes its guidelines for affirmative action seriously. Harvard's policy seems close to a quota system.
When reviewing applicants, Harvard first evaluates nonracial criteria and submits a list of qualifying applicants to a final board for review. Only then is the race of the applicant revealed. The board chooses applicants to ensure that their racial makeup is about the same as in the year before.
The Court didn't like this approach. It accepted previous rulings (especially Bakke, particularly Justice Lewis Powell's opinion; and Grutter in 2003) that colleges could use race in admissions to ensure student diversity if that would improve education. But they had to meet several standards.
First, it had to explain why it wanted a diverse body and to show that it satisfied this purpose. Harvard listed such vague purposes as training future leaders. These goals could not be measured, so one could not determine progress towards them.
Here's a quick and dirty summary of the syllabus in the decision written by Chief Justice John Roberts.
When reviewing applicants, Harvard first evaluates nonracial criteria and submits a list of qualifying applicants to a final board for review. Only then is the race of the applicant revealed. The board chooses applicants to ensure that their racial makeup is about the same as in the year before.
The Court didn't like this approach. It accepted previous rulings (especially Bakke, particularly Justice Lewis Powell's opinion; and Grutter in 2003) that colleges could use race in admissions to ensure student diversity if that would improve education. But they had to meet several standards.
First, it had to explain why it wanted a diverse body and to show that it satisfied this purpose. Harvard listed such vague purposes as training future leaders. These goals could not be measured, so one could not determine progress towards them.
Taking it to the limit
Even if the college could measure the goals, it might pick the wrong way to try to reach them. For example, was it useful to lump all Asian students into one category? Didn't the Indians differ from the Chinese?
Second, the Court has said that colleges could not use race in a negative way. But in Harvard's policy, admitting another Hispanic student, say, would block another Asian-American student. That was a negative consequence.
Finally, the Court has said that a policy to achieve diversity had to end someday (I presume, when the student body is diverse). But Harvard's policy had no clear ending. It just perpetuated the current racial makeup of the student body.
Many news stories took out of context the last sentences of the syllabus. Here is the full passage: "...Nothing prohibits universities from considering an applicant's discussion of how race affected the applicant's life, so long as that discussion is concretely tied to a quality of character or unique ability that the particular applicant can contribute to the university. Many universities have for too long wrongly concluded that the touchstone of an individual's identity is not challenges bested, skills built, or lessons learned, but the color of their skin. This Nation's constitutional history does not tolerate that choice."
In other words, the college can consider the applicant's race when her ability to overcome racial hurdles strengthens the school (which of course is always true). But skin color alone should not determine admission.
Thus the Court did say that a college could consider how an applicant coped with race. So I guess her essay will become crucial in admissions decisions.
Even if the college could measure the goals, it might pick the wrong way to try to reach them. For example, was it useful to lump all Asian students into one category? Didn't the Indians differ from the Chinese?
Second, the Court has said that colleges could not use race in a negative way. But in Harvard's policy, admitting another Hispanic student, say, would block another Asian-American student. That was a negative consequence.
Finally, the Court has said that a policy to achieve diversity had to end someday (I presume, when the student body is diverse). But Harvard's policy had no clear ending. It just perpetuated the current racial makeup of the student body.
Many news stories took out of context the last sentences of the syllabus. Here is the full passage: "...Nothing prohibits universities from considering an applicant's discussion of how race affected the applicant's life, so long as that discussion is concretely tied to a quality of character or unique ability that the particular applicant can contribute to the university. Many universities have for too long wrongly concluded that the touchstone of an individual's identity is not challenges bested, skills built, or lessons learned, but the color of their skin. This Nation's constitutional history does not tolerate that choice."
In other words, the college can consider the applicant's race when her ability to overcome racial hurdles strengthens the school (which of course is always true). But skin color alone should not determine admission.
Thus the Court did say that a college could consider how an applicant coped with race. So I guess her essay will become crucial in admissions decisions.
I agree with reporters that this ruling will transform higher education -- in Central Asia, in fact, as well as the United States. That's why they should, you know, read it. -- Leon Taylor, Baltimore tayloralmaty@gmail.com
Notes
For useful comments, I thank Carlos Alberto Alcalde, Nicholas Baigent, Annabel Benson, Mark Kennet, and Mark Loewenstein.
References
CBS News. June 29, 2023. Supreme Court rules against affirmative action in college admissions - CBS News
Michael D. Shear. "This is not a normal court": Biden denounces affirmative-action ruling. The New York Times. June 29, 2023. Biden Slams Supreme Court Ruling on Affirmative Action - The New York Times (nytimes.com)
Mark Sherman. Divided Supreme Court outlaws affirmative action in college admissions, says race can't be used. Associated Press. Jue 29, 2023. Supreme Court live updates: Court ends affirmative action in colleges | AP News
Read the Supreme Court Decision - The New York Times (nytimes.com)
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