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  • Writer's pictureJoanne Jacobs

SCOTUS: Universities can admit on 'challenges bested,' but not on skin color

Racial preferences in college admissions are unconstitutional, the U.S. Supreme Court has ruled, striking down affirmative action plans used by Harvard and the University of North Carolina. Nobody was surprised.

"Many universities have for too long wrongly concluded that the touchstone of an individual’s identity is not challenges bested, skills built, or lessons learned, but the color of their skin," Chief Justice John G. Roberts Jr. wrote the 6-3 majority opinion. "This Nation’s constitutional history does not tolerate that choice."

Because Harvard’s and UNC’s admissions programs lack sufficiently focused and measurable objectives warranting the use of race, unavoidably employ race in a negative manner, involve racial stereotyping, and lack meaningful end points, those admissions programs cannot be reconciled with the guarantees of the Equal Protection Clause.

The majority, concurring and dissenting opinions are here.

Roberts' majority opinion takes a "moderate, minimalist" approach, writes blogger Ann Althouse, a University of Wisconsin law professor emeritus, on her blog. He argues that the court is enforcing its earlier Grutter decision, which "permitted race-based admissions only within the confines of narrow restrictions."

Harvard protest in 2018. Photo: Brian Snyder/Reuters

Universities may consider "an applicant’s discussion of how race affected his or her life, be it through discrimination, inspiration, or otherwise," Roberts wrote. But he warned against using application essays or other means to evade the ruling.

Good luck with that. I suspect universities will continue to overvalue black and Hispanic students' personal challenges, and undervalue Asian-American students' challenges. Remember that Harvard consistently gave Asian-American applicants low "personal ratings" on traits such as “positive personality,” likability, courage, kindness and being “widely respected.”

Many universities have stopped requiring SAT or ACT scores in favor of subjective criteria.

Universities have been here before, writes Rupa Subramanya in The Free Press. In 1995, when the University of California faced the end of race-based admissions, a task force recommended focusing less on grades and test scores and more on "qualitative assessments of a person’s interests, lived experience, that would contribute to the diversity of students.” That became known as “holistic admissions” or “holistic review,” she writes. "It sounded more palatable than affirmative action, but really it was a way of achieving the same outcome without saying so explicitly."

Malcolm Carson served on the task force. The son of a Jewish mother and a black father, Carson earned straight A's at Howard and a top 1 percent LSAT score, yet thinks affirmative action probably helped him get into law school at Stanford and Berkeley. He was a supporter. Now he "isn't sure where he stands," Subramanya writes.

Always and still a liberal, Carson has "grown uncomfortable" with what he sees as a left-wing obsession with racial identity, he told her. “There’s something very offensive to most people about being judged, not by their own achievements, their work ethics, or their accomplishments, but just being judged based on something they had no control over.”

Americans have moved beyond affirmative action, writes John Halpin on Liberal Patriot. He cites a recent Economist/YouGov poll that finds 65 percent of Americans reject considering race in the college admissions process; only 25 percent said it should be considered among other factors and 10 percent are unsure.

"Pluralities of black Americans (47 percent), Democrats (48 percent), political liberals (46 percent), and Biden voters (46 percent) also oppose the consideration of racial background in college admissions," Halpin writes.

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