The conservative majority in the Georgia Legislature enacted a divisive concepts law this year treating racism as a historical artifact that belongs in classroom discussions of America’s past, but not its present.
Now, the conservative majority on the U.S. Supreme Court could use a similar rationale to end affirmative action. The nation’s highest court heard arguments Monday in cases that will determine the role of race in college admissions.
Lawsuits by Students for Fair Admissions allege Harvard and the University of North Carolina placed artificial and illegal limits on academically superior Asian American applicants to enable the admissions of less-qualified whites and minorities. Lower courts ruled race-conscious admissions were legal and essential to ensuring campus diversity.
Court watchers predict the Supreme Court could overturn the landmark 2003 Grutter v. Bollinger decision, which said the Constitution “does not prohibit the law school’s narrowly tailored use of race in admissions decisions to further a compelling interest in obtaining the educational benefits that flow from a diverse student body.”
In a legal filing, Students for Fair Admissions contends, “Grutter is wrong in every way — historically, legally, factually, practically, and morally ... Americans of all races overwhelmingly support colorblind admissions.”
But is America colorblind anywhere else? Every index of well-being — health, income, housing, lifespan, property ownership — shows a wide gap between Black and white Americans. Yes, we are addressing the gaps, but the legacy of segregated schools with lower funding and less qualified teachers and the exclusion of Blacks from top colleges, as recently as the 1960s, is not an easy shadow to outrun.
As civil rights scholar Kimberlé Williams Crenshaw said in an online seminar last week, these attacks on historical truths speak to the “Achilles’ heel of America’s democracy — the denial of its racial history.” This refusal to see structural racism, implicit bias and disparate outcomes hurts children, said Crenshaw.
“What are they left with to interpret a world that remains stubbornly unequal, with a culture that is ill-equipped to excavate what exists beneath the surface to explain why? Some children are left with nothing but the inference of their own inferiority,” she said.
Damon Hewitt, president of the Lawyers’ Committee for Civil Rights Under Law, said in a media call, ”It is imperative we continue to recognize and center students of color, whose voices and experiences are at the center of this legal fight, as we collectively continue to push for progress both on campus and beyond.”
In 2001, a federal appeals court ruled the University of Georgia’s Total Student Index, a complicated admissions formula that considered race, was unconstitutional. Despite outreach to students of color, UGA recorded 2,000 Black students among 30,166 undergraduates in fall of 2021 — 6.6% in a state where 36.4% of public school students are Black.
Among those filing legal briefs on this case are Republican leaders, including Georgia U.S. House members Rick Allen, Jody Hice and Barry Loudermilk, The GOP brief states, “Every American should have an equal opportunity to attend the college of his or her choice based on individual merit — not on race.”
Merit has never been the sole consideration in admissions. A study of Harvard admissions data found that, for the class of 2017, the admit rate for legacy and athletes was 45%, while the admit for those outside those categories was 5%.
The public accepts that special admits, as athletes are called, are necessary to field winning teams. Nor is there any outcry over the open secret that U.S. colleges increasingly bend their requirements to admit more males, at a time when women account for 60% of the nation’s college enrollment.
Yet, admission of students of color who apply with test scores often a few points lower than the campus average spurs outrage. “Every student Harvard admits is academically prepared for the educational challenges offered at Harvard,” said federal Judge Allison D. Burroughs in her 2019 ruling upholding Harvard.
As Supreme Court Justice Harry Blackmun noted in 1978 in the Regents of Univ. of California v. Bakke, “It is somewhat ironic to have us so deeply disturbed over a program where race is an element of consciousness, and yet to be aware of the fact, as we are, that institutions of higher learning ... have given conceded preferences up to a point to those possessed of athletic skills, to the children of alumni, to the affluent who may bestow their largess on the institutions, and to those having connections with celebrities, the famous, and the powerful.’’
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