What happens if the Supreme Court rules against Harvard and UNC in the race-preference cases?

Harvey Silverglate is a legendary civil rights and civil liberties lawyer, and a highly principled liberal. In this article, a fair-minded assessment of race-based preferences in college admissions, he imagines a world in which, as seems more likely than not, the Supreme Court rules that these preferences unconstitutional,

In that world, says Silverglate:

My own guess—and hope—is that the lower echelons of the public educational system, from kindergarten through high school, will rise to the occasion and take the drastic steps needed to improve the education of all public-school students.

This might entail reforms such as (1) curbing the influence of teachers’ unions in inhibiting educational innovations, (2) adequately funding public education, and (3) assisting societal reforms to reverse dysfunctional family patterns that disadvantage racial and ethnic minority students educationally.

This is the optimistic scenario. I view the first and third reforms as highly desirable — and as longshots.

The pessimistic scenario is that even if the Court deems race-based admissions policies unconstitutional, many colleges will continue to prefer black applicants, but do so in ways that are more subtle and difficult to challenge. In other words, they will try to work around the Court’s decision, and hope that a future Court will reverse course.

Even in the pessimistic scenario there will be positive developments. Some institutions will fully obey the ruling, and those that don’t will reduce the extent to which they prefer black applicants — perhaps considerably. But admissions still won’t be colorblind.

It’s also possible that a majority of the Justices will sign an opinion so tight as to virtually preclude workarounds. Several Justices are likely to. But I fear the Chief Justice and Justice Kavanaugh may not be among them.

By the way, Harvey Silverglate is conducting a campaign to appear as a petition candidate on the ballot for the upcoming election of members of the Harvard Board of Overseers. One of his aims is “to wean Harvard College off its reliance on race-based preferences affirmative action once the High Court has spoken, and to encourage college students to play a crucial role in the education of disadvantaged children.”

Silverglate also wants to dismiss the vast majority of college administrators because they “play no useful role and are largely responsible for speech codes and the kangaroo courts that enforce them, resulting in sky-high tuitions that make it impossible for middle-class families to finances their kids’ educations without massive financial assistance or crippling loans.”

I urge our Harvard readers to consider supporting Silverglate’s campaign.

Finally, I would be remiss in an article about racial preferences if I did not report the tragic death of William Consovoy, at age 48. Consovoy represented Students for Fair Admissions in their cases against Harvard and UNC cases. He was also deeply involved in Shelby County v. Holder, a landmark Voting Rights Act decision in which the Supreme Court invalidated the “preclearance” requirement of that legislation.

The Washington Post’s obituary is here. It includes praise from Edward Blum, who organized Students for Fair Admissions, and also from attorneys on the other side of this struggle.

Blum summed it up this way: Consovoy “was insightful, he was intelligent, he was knowledgeable, and, most importantly, he was courageous.” RIP