Biden refuses to accept court ruling on affirmative action
When the U.S. Supreme Court ruled in June that race-conscious college admission programs are unconstitutional, two things were immediately clear: one, the defenders of race-based preferences were not going to give up, and two, they were probably going to lose.
“The Court’s decision threatens to move the country backwards,” complained the White House in a “fact sheet” sent out after the justices released their decision. The statement vowed that the Biden-Harris administration “will fight to preserve the hard-earned progress we have made.”
The fact sheet included suggestions on how schools could work around the Court’s ruling in the two affirmative action cases — Students for Fair Admissions v. President and Fellows of Harvard College and Students for Fair Admissions v. University of North Carolina. “The President is calling on colleges and universities” to give “serious consideration to the adversities students have overcome,” the fact sheet declared, going on to list financial means, geographic location and “personal experiences of hardship or discrimination, including racial discrimination, that a student may have faced.”
But the White House wasn’t alone in offering advice on how to comply with the Court’s ruling. Students for Fair Admissions sent a letter to 150 universities last month, telling them that they must “take immediate steps to eliminate the use of race as a factor in admissions.”
Last week, the Biden administration sent out more “guidance” to “provide college leaders with much-needed clarity on how they can lawfully promote and support diversity” following what U.S. Secretary of Education Miguel Cardona called “the Supreme Court’s disappointing ruling on affirmative action.” The new guidance explained a whole range of options that colleges and universities could use to replace the direct use of race in admissions in order “to achieve a student body that is diverse across a range of factors, including race and ethnicity.”
All this maneuvering was triggered by a sentence in the court’s 6-3 opinion. Chief Justice John Roberts wrote that although race itself couldn’t be considered as a factor, universities could still consider “an applicant’s discussion of how race affected his or her life, be it through discrimination, inspiration, or otherwise.”
So the Biden administration suggested this workaround: “A university could consider an applicant’s explanation about what it means to him to be the first Black violinist in his city’s youth orchestra or an applicant’s account of overcoming prejudice when she transferred to a rural high school where she was the only student of South Asian descent.”
The Biden team also explained that schools could consider a letter of recommendation that happens to describe an applicant’s successful effort to overcome “feelings of isolation as a Latina student at an overwhelmingly white high school.”
This is possibly even worse than considering race directly. How will it affect the mental health of high school students when their teachers and others start telling them that a personal misery index of prejudice and isolation is their ticket to get into the best schools?
There’s more than one hint in the new “guidance” that legal trouble awaits schools that don’t get it right in the view of the administration. For example, the Biden team advises that universities could stop granting admission to the children of alumni and donors, suggesting that these preferences might “run counter to efforts to provide equal opportunity for all students.”
In case anybody missed the point, the Justice Department and the Education Department warned that they “will vigorously enforce civil rights protections.”
The administration told the schools that they are still legally allowed to collect racial data on students and applicants, just not allowed to let that data become a factor in decisions about who gets in. Wink wink. Nudge nudge.
Team Biden could be putting these schools between a rock and a hard place, because it’s starting to look like the smart money is betting that the Supreme Court is ready to strike down all racial preferences, not only in university admissions but also in hiring and contracting.
In his opinion for the Court, Chief Justice John Roberts cited controlling precedents that reject “the notion that societal discrimination constituted a compelling interest” sufficient to justify preferences based on race: “Such an interest presents ‘an amorphous concept of injury that may be ageless in its reach into the past,’” the chief justice wrote, quoting Justice Lewis Powell. “It cannot ‘justify a [racial] classification that imposes disadvantages upon persons . . . who bear no responsibility for whatever harm the beneficiaries of the [race-based] admissions program are thought to have suffered.’”
Well, then, what’s to become of the diversity, equity and inclusion departments that were set up to catalog every “injury that may be ageless in its reach into the past” and then hold training sessions to teach employees their “responsibility for whatever harm” has been calculated?
Employers might have to shut these departments down to avoid a lawsuit for racial discrimination.
This seems to be happening. On the day after the Supreme Court ruling was announced, two high-ranking diversity/equity/inclusion executives in the entertainment industry were sent packing, one from Warner Bros. Discovery and one from the Academy of Motion Picture Arts & Sciences. These exits followed the departures of Disney’s chief diversity officer and the head of “inclusion strategy” for Netflix.
ABC News reported in July that cuts to DEI departments have been accelerating since late 2020 due to a combination of economic challenges and conservative backlash. Florida Gov. Ron DeSantis and Texas Gov. Greg Abbott have both signed new laws that stop public funding for DEI programs, calling them discriminatory and illegal.
In support of that view, there was a warning in Chief Justice Roberts’ opinion in the affirmative action cases that “universities may not simply establish through application essays or other means the regime we hold unlawful today.”
It will be interesting to see how university administrators respond to the Biden administration’s “guidance.” If they politely ignore it, you’ll know that racial preferences really are in the dustbin of history.
Write Susan@SusanShelley.com and follow her on Twitter @Susan_Shelley