U.S. court strikes severe blow to affirmative action. Here’s what’s next

The U.S. Supreme Court struck a severe blow to affirmative action on Thursday in the court’s latest conservative shift, upending decades of precedent allowing race-based college admissions.

Now comes the effort to resurrect the program’s stated goal: diversifying America’s top schools.

Harvard University promised to spend the coming months seeking ways to preserve those values in its admissions policy; the White House said it will seek ideas at a summit, produce a report and collect data illustrating various types of inequities in college admissions.

“We’re not going to let this break us,” President Joe Biden said from the White House, where he disparaged the right-leaning court.

“This is not a normal court.”

The decision came almost exactly one year after the country’s top court upended abortion access, triggering a national backlash that may have helped Biden’s Democratic Party in congressional midterm elections last November.

The politics here aren’t identical. Both opinion polls and real-life precedent suggest there’s no guaranteed groundswell coming against this court decision.

Recent polling suggests Americans oppose, by a lot, or a bit, or are at best lukewarm to, the idea of race-based college admissions.

Nine states have already banned it. That includes one of the most progressive states in the country, California — and when it held a referendum to bring it back in 2020, voters rejected it.

Opposing views on affirmative action

This newest case prompted passionate arguments by court justices, including two African Americans: one conservative, Clarence Thomas, who sided with the majority in 6-3 and 6-2 decisions, versus the liberal Ketanji Brown Jackson.

Thomas called race-based affirmative action an affront to the equality guarantees in the Constitution, potentially benefiting rich Black students ahead of the descendents of poor white, Jewish and Irish immigrants.

In the lawsuits against Harvard and the University of North Carolina, the court heard statistics that, with the same grades, Black students are far likelier to be granted admission than white and Asian students.

In his opinion, Thomas called the change one step toward the country realizing the founding credo in its Declaration of Independence: that all are created equal.

But Jackson heaped ridicule on the idea that Black students enjoy equal opportunity after generations of slavery, followed by segregation, and unequal federal land, zoning and mortgage programs.

“A tragedy for us all” is how Jackson described the decision in her dissent.

“With let-them-eat-cake obliviousness, today, the [conservative] majority pulls the ripcord and announces ‘colourblindness for all’ by legal fiat. But deeming race irrelevant in law does not make it so in life,” she wrote. “It will not just go away. It will take longer for racism to leave us.”

The justices ruled in favour of a group called Students for Fair Admissions, founded by anti-affirmative action activist Edward Blum, in its appeal of lower court rulings.

In its case, Harvard said about 40 per cent of U.S. colleges and universities consider race in some fashion.

In the late stages of weighing applications, Harvard looked at four factors to whittle down the list of eligible students: legacy status, recruited athlete status, financial-aid eligibility and race.

Canadian involved in fight against affirmative action

One high-profile advocate for the case was Canadian. Calvin Yang, who is from Toronto but attended high school in New York, wanted to go to Harvard.

He said he dreamed of going where Pierre Trudeau studied, because it’s a historic incubator for politicians and he has ambitions to return to Canada and run for office.

Yang’s SAT scores were extraordinary, in the top one percentile. He was a Canada 30 Under 30 environmental leader after organizing massive climate protests in New York. He speaks French and has been involved with different groups and causes. But he was rejected by Harvard, just like about 97 per cent of applicants to that elite university. 

He said when he received his rejection letter, he was stunned.

After that, Yang said, he learned that Asian applicants, like him, were systematically penalized with lower scores on subjective criteria, such as personality.

“That was my eureka moment,” he told CBC News on Thursday. “And that is frankly racist and it is unconstitutional.”

He contacted the plaintiff group in the case, Students for Fair Admissions, and has been conducting interviews on its behalf. He spoke at a celebratory news conference in Washington after the court’s ruling. 

Yang has written about the issue at the University of California, Berkeley, where he is a sophomore in legal studies and political economics. He is involved in a centrist conservative group in Canada weighing the creation of a new party.

Next steps: the search for new criteria

Yang said he was well aware that African Americans have suffered multi-generational injustices in the U.S., but he believed race-based affirmative action wasn’t the correct remedy.

He said he favours economic-based affirmative action. That way, he says, the child of a laid-off white West Virginia coal miner might benefit, as well as a poor African American child.

“Instead of race-based … make it more socioeconomic based, or class-based,” he said.

That might very well be what Democrats focus on next. Biden promised different initiatives to collect data on inequities in college admissions. 

In its ruling, the Supreme Court said nothing is stopping universities from considering an applicant’s discussion of how race affected his or her life, be it through discrimination or inspiration.

During the lawsuit, data uncovered in the proceedings suggested there is all sorts of discrimination in college admissions — and it happens to primarily benefit whites.

A paper by two researchers, including one affiliated with the lawsuit, examined Harvard admissions for special groups: athletes, children of alumni, children on a special dean’s list (which favours donor-families) and children of faculty and staff.

The paper found that 43 per cent of whites get into Harvard through one of these streams. It also found that fewer than 16 per cent of African American, Asian American and Hispanic students do.

The researchers said roughly three-quarters of white admissions through these streams would have been otherwise rejected and that if these privileges disappeared, the share of white students would fall.

One African American Harvard law graduate fumed on Thursday that the U.S. has selective outrage when it comes to discrimination.

“You’ll note that the Supreme Court did not ban gender consciousness in college admissions. Nor did it ban legacy consciousness, wealth consciousness, geographic consciousness, or athletic consciousness,” Elie Mystal wrote in The Nation.

“Race, and only race, is the thing the conservatives don’t want colleges and universities to look at. Because race is the card white people use that never gets declined.”

He accused white conservatives of using Asian Americans as a smokescreen in this court case, and predicted the results would benefit primarily whites; that’s what happened in the first years after California banned affirmative action.

Former president Barack Obama and his wife, Michelle, released a statement lamenting the decision.

“Like any policy, affirmative action wasn’t perfect,” the former president said. “But it allowed generations of students like Michelle and me to prove we belonged. Now it’s up to all of us to give young people the opportunities they deserve — and help students everywhere benefit from new perspectives.”