Supreme Court schedules argument in race-based admissions preference cases

Group of university presidents weighs in with bad arguments

The Supreme Court has scheduled oral argument in the two cases challenging race-based preferences in college admissions — one against Harvard and one against the University of North Carolina. The cases will be heard on Monday, October 31, beginning at 10:00 a.m. ET. They will be argued separately for an hour each.

Originally, the two cases were consolidated, but the Court has separated them. This means Justice Jackson, the Court’s newest member, will participate in the UNC case. As she promised, Jackson won’t participate in the Harvard case because she is a member of Harvard's Board of Overseers (or was until very recently, I don’t the date on which her term expires, but reportedly it’s this year).

Jackson’s participation in the UNC case won’t affect the outcome. Neither will her non-participation in the Harvard matter.

Striking down the discriminatory policies of these two institutions will require five votes. In no scenario would Jackson be the fifth vote. The outcome in both cases depends on whether at least five of the six Republican-appointed Justices are willing to step up and put a stop to blatant race discrimination in college admissions.

Some opponents of the discrimination believe Jackson’s participation in the UNC case will be beneficial. They reason that, had Jackson been sidelined and if the preferences are struck down, proponents could whine that the only black female on the Court wasn’t allowed to be heard.

Now, if the preference regime is toppled, proponents will have to find something else, in addition to the merits, to whine about. I predict they’ll find it.

Meanwhile, the American Council on Education, an organization that represents college and university presidents, has filed an amicus brief defending race-based admissions. The brief, which also speaks for 39 other groups, invokes First Amendment concerns as a basis for allowing colleges to prefer members of certain minority groups in admissions.

It argues (1) that “the First Amendment affords colleges and universities substantial deference on matters involving academic judgment” and that this freedom “necessarily encompasses decisions about whom to enroll” (pages 3-4) and (2) that a rule prohibiting race and ethnicity from being considered “would ultimately chill prospective students from discussing their racial and ethnic identities or relying on recommendations that carry a racial or ethnic valence.” (pages 30-31)

Both arguments fail, in my view.

The First Amendment pertains to freedom of speech (among other freedoms not relied on in the amicus brief). Nothing in a decision striking down racial preferences in admissions would limit the right of colleges and universities to speak. They would merely be barred from discriminating on the basis of race against Asian and white applicants — as they already are from discriminating against black applicants.

The Court should reject the notion that the First Amendment requires deference to decisions by colleges and universities to prefer members of one racial group over members of others. Nothing in the First Amendment supports such a gloss.

College administrators should have no more freedom to discriminate on the basis of race than anyone else. And claims by college administrators that favoring blacks over Asians serves compelling interests must be scrutinized as thoroughly as any other institution’s excuses for favoring members of one race over members of another.

In addition, let’s not overlook the irony of colleges and universities trying to wrap themselves in the mantle of free speech. What about those oppressive speech codes so many of them impose? What about the free speech rights of faculty members like Joshua Katz at Princeton who speak out against wokeness?

A majority of the Justices might find it difficult not to laugh the American Council on Education’s reliance on the First Amendment out of court.

The argument that a decision striking down race-based admissions preferences will deter minority applicants from discussing their life experiences also fails the straight-face test. These applicants will be free to write whatever they want about their experiences and their race.

According to the amicus brief, however, if the preference regime is toppled what black applicants write about their race-related experiences will be ignored, while similar jottings by non-blacks will be given weight. Nonsense.

Write up the racial angle well and it will be a plus. But if colleges comply with an adverse Supreme Court ruling, it will be no more of plus than an equally well-written essay by an Asian-American student about his or her experiences growing up, say, in a household where English isn’t spoken. And signaling one’s blackness and peddling racial narratives will no longer offset relatively poor SAT scores and so-so grades, at least not to the extent they can now.

One more point about the amicus brief. It’s divorced from reality. It purports to uphold “holistic” admissions practices. That word is used 42 times, only four times fewer than the mother of all magic words, “diversity.”

But the Harvard policy under review isn’t “holistic.” It’s a quota system in disguise.

That’s why, year after year, Harvard contrives to produce a freshman class made up of nearly the same percentages of blacks and Hispanics. It’s why, after Harvard was sued by Asian students, the number of Asians in freshman classes started to rise and the number of whites started to decline almost in lockstep.

Did Asian applicants suddenly become more holistically qualified than before? Are black applicants equally holistically qualified every year? Of course not.

Harvard is rigging the system for the purpose of achieving the racial balance it prefers. It’s absurd to claim that this cynical, deeply offensive form of discrimination — barred by the Fourteenth Amendment and Title VI of the Civil Rights Act — has anything to do with the First Amendment.