America after affirmative action

Some thoughts on where we're headed as a nation.

Photo by Joshua Hoehne on Unsplash

So, as expected, the Supreme Court ruled that the 14th Amendment forbids racial preferences in college admissions. The policies we know as “affirmative action” are now illegal. In narrow policy terms, the ruling probably won’t change much, but the symbolic impact seems like it could be deep and far-reaching.

If you want to know what I personally think about affirmative action policy, read this post:

Why affirmative action had to go

In a nutshell, affirmative action began as a useful policy to help build an educated Black professional class, and it was fairly successful. But as America became a much more diverse country with many different racial and ethnic groups comprising large percentages of the population, affirmative action threatened to devolve into a bizarre racial spoils system. Ultimately, that’s why it had to go.

The American people largely agreed, at least regarding the conclusion. Although the term “affirmative action” itself tends to poll well, substantial majorities of Americans tend to favor banning racial preferences from admissions:

Source: Washington Post

So while many people will be unhappy with the decision, it’s unlikely that it’ll cause the same kind of long-lasting mass outrage that the Dobbs decision allowing state-level abortion bans has given rise to.

It’s also likely that the ruling will change a lot less than people think, in terms of who actually gets admitted to top colleges.

First, the decision seems to have a bunch of weird loopholes. Here’s Bloomberg’s Noah Feldman:

Roberts’s opinion excluded the US military academies from the decision, implying possible recognition of the need for racial diversity in the officer corps and inviting a new lawsuit on the subject…

A new fight over university admissions is inevitable. Roberts ended his opinion by stating that universities may still consider how an applicant’s race “affected his or her life, be it through discrimination, inspiration, or otherwise.” He added that “a benefit to a student who overcame racial discrimination … must be tied to that student’s courage and determination.” So race can still be taken into account individually, though not systematically.

Roberts went out of his way to refute the possibility, hinted at in Justice Sonia Sotomayor’s dissent, that universities could now still consider race on an individualized basis. “Universities may not simply establish through application essays or other means the regime we hold unlawful today.”

So diversity in the officer corps is a legitimate reason for racial preferences, but diversity in the professional class is not? And colleges can still consider race if an applicant writes about how it affected their personal journey, but not if that replicates the old affirmative action regime? It sure seems like there are going to be a lot of lawsuits before we know exactly how this new system works.

And in the end, it may not even matter that much for who actually gets admitted. California banned affirmative action at state schools in 1996, but in 20 or 25 years, Latino and Black admissions had fully bounced back:

Source: L.A. Times