SCOTUS will end affirmative action, and universities will keep doing it | Opinion

It’s that time again — Supreme Court opinion time.

Sometime this month, our nation’s highest court will hand down the latest of its long (although for many, not eagerly) awaited decisions addressing a legal issue at the core of America’s cultural divide. This case — more accurately, these two cases — concern the use of race in admissions programs at colleges and universities.

The cases arise out of admissions programs at two institutions: Harvard and the University of North Carolina at Chapel Hill. Americans situated all across the ideological spectrum who hold views about the issue colloquially dubbed affirmative action can learn a great deal if they read the transcripts from October’s five hours of oral argument. And that’s saying something, because legal transcripts — even those from hot-button cases — have a reputation for being staid and unilluminating.

Among the exchanges to be gleaned from the transcripts, an especially telling one stands out. After Harvard’s lawyer reluctantly conceded that, for some applicants, race indeed proved to be the determinative factor, as it may for an oboe player during an admissions cycle in which the Harvard-Radcliffe orchestra found itself in need of an oboe player, Chief Justice John Roberts replied tersely: “We did not fight a Civil War about oboe players.”

Challengers allege that the program used by Harvard — a private institution — clashes with Title VI of the Civil Rights Act of 1964 by using race and subjective inferences about race in a manner that illegally disadvantages Asian-American applicants.

These same challengers contend that the program employed by UNC — a public institution — violates not merely Title VI but the equal protection guarantee of the Constitution’s 14th Amendment. In the UNC case, challengers allege that white and Asian-American applicants get the constitutionally short end of the admissions stick because UNC’s process affords African Americans, Hispanic Americans, and American Indians an inappropriate bump.

Each case has consumed the better part of a decade of the legal system’s time and resources.

In each case, challengers contend that the university persists in employing a race-conscious admissions policy in ways forbidden by law and inconsistent with the constraints of Supreme Court precedent. By so doing, challengers contend, each program impedes our move toward a nation in which individuals, to borrow from Dr. King, no longer are judged by the color of their skin.

And in each case, the university has structured its defense around a pair of core propositions.

One is that, to the extent it employs race in its admissions process, it does so to achieve an objective approved by a majority of the nation’s highest court for nearly a half century: to secure the educational benefits alleged to flow from a diverse student population.

The other is that were it forbidden to take account of race in the admissions process — were it required to undertake the admissions process genuinely blind to the race of applicants — it would be unable to achieve that first objective, unable to matriculate a student class that produces the benefits of diversity that the university seeks.

At the trials, each side wove its story with facts, anecdotes, experts, empirical analysis, a bit of histrionics, and slices of law.

And in each instance, the trial court awarded victory to the university.

Those victories almost certainly will be short-lived.

Yet this fact, although it will dominate the national conversation for a day or three, will not be among the most important consequences of the announcements by the justices.

Far from it.

Instead, look for two other phenomena — one conspicuous, immediate, and ephemeral, the other hidden behind closed doors on campuses across the land — to represent the most significant takeaways after the justices deliver their pair of verdicts.

As to the first: The nation’s intelligentsia will swiftly seek to delegitimize the dispositions, often even without reading the decisions themselves. Airwaves and social media will be dominated by those who toss the pair of cases into a rhetorical bucket alongside the court’s recent decisions on abortion, religion in the public square, and threats to roll back rights of members of the LGBTQ+ community, including the right to marry the person they love. These critics will lambast the cases with allegations that they amount to a mix of nothing more than raw political power and a smug lack of respect for the accumulated wisdom of the past. These features, they will tell us, have infected a Supreme Court majority made possible only by the court gifting the 2000 election to the GOP and then fortified by Mitch McConnell’s refusal to give Merrick Garland a hearing in the wake of the death of Antonin Scalia. Expect, too, that critics will pepper their outbursts with shots at Justice Clarence Thomas, weaving in mention of both Harlan Crow and Anita Hill.

This will be the message.

It will be loud.

It will be repetitive.

It will be trumpeted by those who have devoted not a day of their adult lives working on university campuses, let alone doing the onerous admissions work on those campuses.

And, within a few days, the noise will recede — to be replaced by a development few commentators will ever see. Let us call this second development the civil disobedience of the American university.

Given the way our legal system works, the current affirmative action cases focus principally on the admissions processes at two institutions of higher learning: UNC and Harvard. Yet little doubt exists that the principles announced will be intended by the court to govern the actions of the nearly 5,000 colleges and universities not parties to the case. Indeed, a compelling slice of evidence for this fact is the massive time, energy, money, and expertise invested by these institutions over the past few years in crafting strategies to circumvent principles of constitutional and statutory law the justices have not even yet handed down. To put it in today’s vernacular: The writing is not merely on the wall. It can be found on whiteboards and PowerPoint slides, in electronic files and email messages, on campuses (real and virtual) spanning from New England to California, from the Pacific Northwest to the Deep South.

Quite simply, America’s institutions of higher learning will continue to craft and administer admissions programs that take account of race — even after the nation’s highest court instructs them in no uncertain terms to cease doing so. They play the long game, comfortable that the obstacles rejected applicants must surmount to learn the truths about their rejections are sufficiently burdensome that those truths will continue to go undetected.

Nor should this impending development surprise us.

After all, American educators have an impressive history of acting as if they are entitled to flout the law; that they — rather than those who make, construe, and enforce the law — should be the ultimate arbiters of the legality of their own actions.

Beginning in 1954, a unanimous declaration from the nation’s highest court that racial segregation in K-12 public schools violated the constitutional equality owed to African-American schoolchildren met with a generation of resistance. Educators played no small role in that resistance. Moreover, even a cursory study of mid-20th-century American history makes clear that such resistance proved as vigorous and unstinting in the Northeast and Upper Midwest as it did in places the nation’s intelligentsia enjoys mocking as populated by hayseeds, bumpkins, and, yes, racists.

In the aftermath of an 1832 Supreme Court decision rarely mentioned in American law schools these days, President Andrew Jackson is said to have observed to the effect that, fine, now that Chief Justice John Marshall has made his decision, let him try to enforce it. The remark may well be, you should pardon the expression, fake news.

Later this month, the nation’s highest court will tell the nation’s colleges and universities once and for all to stop perpetuating race-consciousness in their admissions programs.

Do not for a moment believe that the pronouncement will serve to end such race-consciousness.

Why?

Because the resistance to that command — a resistance that will unfold for decades out of view of Americans and those whose collective job it is to deliver news to Americans — will be anything but fake.

Peter K. Rofes, of Milwaukee, Wisconsin, is professor of law at Marquette University Law School. The views he expresses are his alone and should not be attributed to Marquette University.