Court’s affirmative action decision may not be the end of racial preference in higher ed | Opinion

The Supreme Court’s decision in Students for Fair Admissions v. Harvard may just force universities’ racial preferences out of the open air and into the dark.

One week before America celebrates its independence, the Supreme Court reaffirmed a principle central to our national identity: No American should be treated differently on the basis of his race, ethnicity, or national origin. A majority of the court told institutions of higher education that race-based admissions violate the core constitutional guarantee of equal protection under the law. “Eliminating racial discrimination means eliminating all of it,” the majority wrote, “for the guarantee of equal protection cannot mean one thing when applied to one individual and something else when applied to a person of another color.”

At the same time, the majority qualified its decision, writing, “nothing in this opinion should be construed as prohibiting universities from considering an applicant’s discussion of how race affected his or her life, be it through discrimination, inspiration or otherwise.” The decision thus raises new questions, even as it puts to rest old ones.

At issue in this case were the admissions policies of two major universities, one public and one private: the University of North Carolina and Harvard. Both policies were aimed at raising the number of Black, Hispanic and other minority students on its campus. And both patently discriminated on the basis of race. For example, Harvard’s admissions committee meetings would begin with a discussion of the relative breakdown of applicants by race, with the goal of ensuring “Harvard does not have a dramatic drop-off” in minority admissions. The results speak for itself. Black applicants in the top four academic deciles were between four and 10 times more likely to be admitted to Harvard than Asian American applicants in those same deciles. By using previous years’ minority admissions rates as the benchmark for the current class, the policy essentially instituted a racial quota. And by favoring Black applicants over Asian American applicants because of their race, it used race as a plus factor for one group and a minus for another. This, the court held, amounted to a violation of the 14th Amendment’s Equal Protection Clause under longstanding precedent.

Instead of viewing each applicant as a unique individual with his own life experiences, admissions policies like Harvard’s and UNC’s treat members of minority groups as if they were fungible. In practice, an applicant from Nigeria checks the “Black” box as conveniently as the direct descendant of enslaved Americans. And an American of Chinese descent checks the “Asian-American” box just as conveniently as an American of Pakistani descent. Such policies, the court held, actually promote racist stereotypes rather than combat them.

Perhaps it’s in this light that we should read the majority’s invitation to admissions committees to consider individual applicants’ accounts of how their race affects their life experiences. As the son of Haitian immigrants, my race has affected my life experience. But, it does not define me as a person. I am an American, a navy veteran, a public servant and a lawyer. I am a brother, a friend, a devoted son and a faithful Christian. I am so much more than my race and my ancestry. I want to live in an America that does not turn me into a caricature based on the color of my skin. I want to live in an America that recognizes my honor, integrity, loyalty and intellect, none of which have to do with the color of my skin.

I hope that when admissions committees read essays from applicants, they do not seize upon a few “magic words” about race as a way to covertly continue racialized policies that the court has held unconstitutional. But I’m not optimistic.

If statements issued by university presidents are anything to go by, race will continue to play a role in admissions policies. The president of Harvard doubled down on the court’s remarks about discussions of race in college essays. The president of Yale grumbled that he was “deeply troubled” by the decision and recommitted the university to racial diversity. The president of Princeton went so far as to say that the court “backed away from more than 50 years of established case law allowing colleges and universities to take race into account as one factor among many in a holistic admission process.”

The problem boils down to this: Colleges and universities have not used race as one factor among many in a holistic admissions process. Where admissions policies go from here remains to be seen. But for now, we’d all do well to remember the words of Chief Justice John Roberts in an earlier decision on racial preferences: “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”

Rod Dorilas is an international business and maritime attorney based in Palm Beach. He is a Navy veteran, former Republican congressional candidate, and served as counsel to U.S. Secretary of Commerce Wilbur Ross, 2020-2021.