Striking down discriminatory “affirmative action”

Reactions to Supreme Court’s decision to end affirmative action
On Thursday June 29, 2023 the Supreme Court of the United States effectively ended the race conscious admissions programs, known as affirmative action, in a 6 to 3 decision.
The division in court is reflected in the media. With a liberal majority in the principal media disagreeing with the decision and a small vocal group (representing perhaps the views of  most of the population) expressing joy over the decision.
 
The New York Times Tweeted “Breaking News: The Supreme Court rejected affirmative action at Harvard and UNC. The major ruling curtails race-conscious college admissions in the U.S., all but ensuring that elite institutions become whiter and more Asian and less Black and Latino.” (Emphasis added).
“Nature” magazine called the decision “a bitter blow to educational inclusion.”
 “This is not a normal court” President Biden said when asked if he thought that the Supreme Court had gone “rogue.” Presumably meaning that court was acting erratically, but is this case meaning disregarding what Biden would have liked.
 In a speech reacting to the court’s decision, he argued:
“The Court has effectively ended affirmative action in college admissions. And I strongly — strongly disagree with the Court’s decision… Today, the Court once again walked away from decades of precedent and make — as the dissent has made clear. The dissent states that today’s decision, quote, “rolls back decades of precedent and momentous progress.” End of quote.”
Biden also argued that it was his belief that “our colleges are stronger when they are racially diverse. Our nation is stronger because we use what we — because we are tapping into the full range of talent in this nation.”
He emphasized that the nation’s colleges “should not abandon – let me say this again: They should not abandon their commitment to ensure student bodies of diverse backgrounds and experience that reflect all of America.”
Later in his speech Biden more or less promised to find a way for colleges to circumvent the decisions of the Supreme Court by saying: “Today, I’m directing the Department of Education to analyze what practices help build a more inclusive and diverse student bodies and what practices hold that back, practices like legacy admissions and other systems that expand privilege instead of opportunity.”
In contrast to the views of the liberal media and President Biden, a small but vocal group welcomed the court’s decision:
In a press release the Students for Fair Admissions (SFFA) who for a long time had argued against affirmative action at colleges and initiated the case against the affirmative action found at Harvard University and University of North Carolina Chapel Hill wrote: “The opinion issued today by the United States Supreme Court marks the beginning of the restoration of the colorblind legal covenant that binds together our multi-racial, multi-ethnic nation...
The polarizing, stigmatizing and unfair jurisprudence that allowed colleges and universities to use a student’s race and ethnicity as a factor to admit or reject them has been overruled. These discriminatory admission practices undermined the integrity of our country’s civil rights laws … “Beginning today, America’s colleges and universities have a legal and moral obligation to strictly abide by the Supreme Court’s opinion. These obligations compel the removal of all racial and ethnic classification boxes from undergraduate and postgraduate application forms” (SFFA).
 
Supreme Court arguments
In the wordy opinion published by the court we find the arguments of court’s majority and of the minority.
 
Majority opinion arguments

Ethnicity and the goal of equality
Chief Justice Roberts delivered the majority opinion of the court: He began by quoting earlier opinion: “Distinctions between citizens solely because of their ancestry are by their very nature odious to a free people whose institutions are founded upon the doctrine of equality.”
 
Failure to show that program advances goals
Roberts refers to Harvard University’s argument for the educational benefits of its practice: “(1) “training future leaders in the public and private sectors”; (2) preparing graduates to “adapt to an increasingly pluralistic so- ciety”; (3) “better educating its students through diversity”; and (4) “producing new knowledge stemming from diverse outlooks.”
He finds that “Although these are commendable goals, they are not sufficiently coherent for purposes of strict scrutiny. At the outset, it is unclear how courts are supposed to measure any of these goals. … How many fewer leaders Harvard would create without racial preferences, or how much poorer the education at Harvard would be, are inquiries no court could resolve. In addition, Robert’ finds that “respondents’ admissions programs fail to articulate a meaningful connection between the means they employ and the goals they pursue.”

Opaque racial categories undermine goals
In order to accomplish the goal of affirmative action universities must have some kind of numerical measure of the racial or ethnic composition of their classes. To do that they use these categories: 1) Asian; (2) Native Hawaiian or Pacific Islander; (3) Hispanic; (4) White; (5) African- American; and (6) Native American.
In Roberts opinion “the categories are themselves imprecise in many ways. Some of them are plainly overbroad: by grouping together all Asian students, for instance, respondents are apparently uninterested in whether South Asian or East Asian students are adequately represented.” Other categories, Roberts mention Hispanic, are arbitrary or undefined. “It is far from evident, … how assigning students to these racial categories and making admissions decisions based on them furthers the educational benefits that the universities claim to pursue … the use of these opaque racial categories undermines, instead of promotes, respondents’ goals.”
 
Racial stereotyping
“The race-based admissions systems that respondents employ also fail to comply with the twin commands of the Equal Protection Clause that race may never be used as a “negative” and that it may not operate as a stereotype. It is far from evident, though, how assigning students to these racial categories and making admissions decisions based on them furthers the educational benefits that the universities claim to pursue.”Harvard’s admissions process rests on the pernicious stereotype that “a black student can usually bring something that a white person cannot offer.”
 
Dissenting arguments of the minority opinion
 
Affirmative action promotes equality
Justice Sotomayor argues that “This limited use of race has helped equalize educational opportunities for all students of every race and background and has improved racial diversity on college campuses …Today, this Court stands in the way and rolls back decades of precedent and momentous progress. It holds that race can no longer be used in a limited way in college ad-missions to achieve such critical benefits. In so holding, the Court cements a superficial rule of colorblindness as a constitutional principle in an endemically segregated society where race has always mattered and continues to matter.” Sotomayor acknowledges that even with affirmative action has been progress has been slow, and mentions that “far too many black students at Harvard experience feelings of isolation and marginalization”
 
Colorblindness keep Black Americans in the bunker
In Judge Jackson ’s almost emotional opinion she writes: Today, this Court stands in the way and rolls back decades of precedent and momentous progress. It holds that race can no longer be used in a limited way in college admissions to achieve such critical benefits. In so holding, the Court cements a superficial rule of colorblindness as a constitutional principle in an endemically segregated society where race has always mattered and continues to matter… The Court has come to rest on the bottomline conclusion that racial diversity in higher education is only worth potentially preserving insofar as it might be needed to prepare Black Americans and other underrepresented minorities for success in the bunker, not the boardroom (a particularly awkward place to land, in light of the history the majority opts to ignore).”
 
Under- and overrepresentation of ethnicities
The affirmative action programs have been aimed mainly at Black Americans and Hispanic Latino Americans, although women and gender also crop up in the material, other ethnic groups do not. What is the reason for that? Perhaps at look at demographics might help understand this rather one-sided focus.
Statistics for the overall ethnic composition of Harvard undergraduates provide this picture (Harvard University, Office of Institutional Research & Analytics: Common Data Set 2021-2022):

Note the high proportion of Asian and the relatively modest proportion of Whites. Using an admittedly rough comparison these percentages may be compared with the ethnic composition of the U.S. population according to U.S. Census Bureau’s population estimates from July 2022 (www.census.gov/quickfacts/fact/table/US/PST045222).

A first look at the minority group in focus in the programs indicates that Black or African Americans indeed may be underrepresented, as they make up 9.3% of undergraduates, but 13.6% of the U.S. population. A comparison of the percentages demonstrates that the goals of inclusion and equality for Black’s due affirmative active has not been achieved. Leaving only the argument that without affirmative action the situation would have been worse for Blacks.
Somewhat surprisingly, the White population is also underrepresented at Harvard. Making up 35.4 % of undergraduates, with Whites in the population still making up at least 58.9%.
Standing out is the apparent overrepresentation of Asians, making up 21.7% of undergraduates, but only 6.3% of the U.S. Population. One may wonder why so many Asians are so well represented, compared to Blacks. But perhaps answers to that question may be so embarrassing that we do not want to look?
At least according to this simple comparison Harvard University would seem to be rather diverse already. Admission statistics for the class of 2025 even indicate that the proportion of African Americans accepted now stands at 15.9%, with Asians at 25.9% and Whites at around 44 %.
Now this seems rather inclusive in relation to especially the Asian minority, and somewhat less inclusive in relation to Whites, don’t you think?
 
SFFA’s long struggle against discrimination
Strange as it may sound looking at the numbers Asian student have for quite some time felt that they were being discriminated against by Harvard University.
 “In 2014, a nonprofit group called Students for Fair Admissions (SFFA) sued Harvard University, alleging that its race-conscious admissions program discriminated against Asian American applicants.” SFFA arguing that the Harvard admissions process used impermissible racial balancing favouring Blacks, and not race neutral alternatives, resulting in discrimination against the well qualified Asian students. In fact, saying that the better qualified Asians were not admitted as result of Harvard’s preferential treatment of Black students with lower qualifications.
Harvard argues that its consideration of race in the overall admissions process is in accordance with affirmative action and furthermore that abandonment of racial considerations would mean that African American and Hispanic enrollment would decline. As if this in itself is an argument for preferential treatment of Black and Hispanic students.
At the time SFFA lost their case in districts courts with the rather spurious argument “that a heterogeneous student body promotes a more robust academic environment with a greater depth and breadth of learning, encourages learning outside the classroom, and creates a richer sense of community.”
This is hardly a proven scientific fact, and one might reasonably argue that this certainly depends on the qualities of what is included in this heterogeneity. This case raises the whole question of whether the affirmative action programs favouring Blacks in fact represents a kind of reverse racism and discrimination against other ethnic groups. Here especially of course against the better qualified Asian students. It could be argued that this would in effect lead to a lowering of standards and of excellence in universities. Contrary to argument that diversity in itself would promote excellence.
With the Supreme Court’s decision decision SFFA would finally seem to have won their case, although President Biden’s promise to look for way to circumvent the decision of the court may indicate that the SFFA’s struggle might have to continue.
 
Affirmative action — a Potemkin facade hiding a deeper inequality
According to 2017 study by a former Harvard professor Raj Chetty “Harvard has had as many students come from the top 1 percent of the income distribution as the bottom 60 percent.”
Indicating perhaps that taking into account general socioeconomic factors in admissions would be fairer to all other ethnic groups, than focusing on a certain racial preference to raise the admissions of Black students. See also the work of Chetty and others in “Race and Economic Opportunity in the United States: an Intergenerational Perspective” (The quarterly Journal of Economics)
Then there is the problem of legacy students, students where family members have been previous alumni at Harvard. According to the Harvard Crimson 36% of the students in the class of 2022 are legacy students.
According to Students for Fair Admissions “legacy applicants were accepted at a rate of nearly 34 percent from 2009 to 2015 … more than five times higher than the rate for non-legacies over the same six-year period: just 5.9 percent” (NPR 2021).
In very contorted way Harvard actually uses the arguments for diversity and inclusion to defend the preferential admission of legacy students. In a court testimony Dean Khurana argues “it was important for Harvard to favor the children of alumni in order to bring students who have more experience with Harvard together with others who are less familiar with Harvard.”
Well, it certainly guarantees a special kind of diversity and inclusion, but perhaps the inclusion of such a high proportion of legacy students is not necessary to assure this special kind of diversity, and it certainly is not what a sane person might regard as fair and equal treatment.

 
Addendum, added July 10
A few days after the Supreme Court’s decision a complaint “Three Black and Latinx groups filed a civil rights complaint against Harvard … alleging that the University’s consideration of legacy and donor preferences in the admissions process violates the Civil Rights Act of 1964 …
“In other words, Harvard admits predominantly white students using Donor and Legacy Preferences, and, as a direct result, excludes non-white applicants.” …
In the complaint, the groups call for the department to ensure that applicants cannot indicate a relationship to a family member or donor at any point in the admissions process.”
The Harvard Crimson, July 5, 2023 (https://www.thecrimson.com/article/2023/7/4/legacy-admissions-complaint/)