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Will SCOTUS Scuttle Affirmative Action?


One has an ominous feeling that, despite the upcoming Supreme Court decision, affirmative action is never really going away. How many times has the Supreme Court heard affirmative action cases, only to issue rulings that offer a lot of verbiage, but effectively change nothing about the status quo of affirmative action in American universities? Then again, perhaps SCOTUS will surprise us.

The case at issue is Students for Fair Admissions (SFFA) v. Harvard and SFFA v. The University of North Carolina. The two colleges in the lawsuit are meant to represent private and public universities respectively. SFFA claims that the colleges’ use of affirmative action violates Title VI of the Civil Rights Act of 1964 and the 14th Amendment’s equal protection clause in that they discriminate against Whites and Asians. This case essentially challenges the Supreme Court’s earlier decisions, which established that race may be used as part of a “holistic” process, but not a points-based or quota system. SCOTUS heard oral arguments last year, and is expected to reach a decision imminently.

Landmark cases from 1978, 2003, and 2016 all basically confirmed the status quo, and not much changed in terms of the use of affirmative action (except for state bans, which did effect change). The Supreme Court has ruled that colleges may not have racial quotas per se, but they may use race as one of many factors. Effectively, this has given the green light to affirmative action. If there are quotas being furtively fulfilled, we wouldn’t know about it; and university administrators are not about to divulge that.

That said, according to Forbes, the Supreme Court “seems likely” to knock down Harvard and UNC’s affirmative action policies based on the oral arguments. What could be the implications of that? Would affirmative action really end?

There’s no shortage of hypocrisy surrounding affirmative action. Those who want to keep affirmative action legal in college admissions argue that it’s essential to keeping diversity on college campuses. Even some who argue against affirmative action, including some of the so-called conservative justices, still say diversity is important, and only endeavor to brainstorm about how diversity might still be achieved without affirmative action. Colleges can find other ways to find diversity, they argue. OK, but how? Unfortunately, if colleges were to select students strictly on merit, SAT results, and GPAs, it would tend to create less diversity, at least as it’s defined in regards to African American and Hispanic students.

The brilliant solution that colleges have thus far is to simply stop requiring ACT and SAT scores. Merit is by the wayside. It is madness to abandon academic excellence in pursuit of “social justice.”

Even the “conservative” Justices Roberts and Amy Coney Barrett speculated in oral arguments last year that if affirmative action were banned, instead of having students check a box to indicate their race, they could write about their race in their personal essay. I’m sorry, would that be any different? It would leave a big door open for college administrators to continue to use race to advantage certain ethnic groups over others. Justice Gorsuch, more to the point, asked how one could achieve diversity without having quotas: “How do you do diversity without taking into account numbers?” Gorsuch’s astute question demonstrates how untenable our current system of college admissions is.

Ultimately, colleges should absolutely consider students’ grades and GPAs and SAT scores in their admissions. If this leads to unequal outcomes, then the next question is to address why some groups struggle under these metrics. In other words, let’s help students gain real academic skills instead of giving certain groups a leg up because of a misguided notion of social justice. Let’s get back to hard work and hitting the books as the way to success.

Michael Machera writes book reviews and opinion at michaelmacherablog.com. Follow him on Twitter.

The views and opinions expressed in this commentary are those of the author and do not reflect the official position of the Daily Caller News Foundation.


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