Courts

The Affirmative Action Cases Went About As Well As You'd Expect Them To. What Now?

Saw this coming from a mile away.

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diversity

Cool while it lasted.

In a 6-3 decision that was settled as soon as Amy Coney Barrett joined the Court, the Supreme Court has ruled that affirmative action violates the 14th Amendment. This won’t be a sad song. If you’ve been paying attention to the zeitgeist of the Court in any capacity, you should have known that this was going to be the outcome for months now. That’s why I’m assuming you did the same thing I did when you read the verdict: you let out a sigh of relief. Week after week of waiting for Amy Howe to tell us the number of boxes, the number of cases therein, and the drumroll of reading off their names to discover Harvard or University of North Carolina weren’t mentioned at the end of it is over — and I’m thankful for it.

I’m also thankful that after next week, we won’t have to worry about if 303 Creative will make it okay to discriminate against LGBTQ+ marriages because it’s what Jesus would want. It likely will — it’s not like there’s an actual defendant that will stand up to the likeable plaintiff some monied organization sprouted up as a test case to roll back the civil liberties of other minority groups. I’m keeping hope alive that the student loan cases will keep open the possibility of compound interest not compounding so hard, but again, faith fatigue has already set in.

As the dust clears, the most pressing question is simple. What now? What strategies can universities use to help prevent their entering classes from looking like Phish concerts without violating the 14th Amendment? Because the Court is already preempting surrogate schemas meant to reach the effects of affirmative action by a different mechanism as constitutionally suspect. From the opinion:

“[N]othing in this opinion should be construed as prohibiting universities from considering an applicant’s discussion of how race affected his or her life, be it through discrimination, inspiration, or otherwise. But, despite the dissent’s assertion to the contrary, universities may not simply establish through application essays or other means the regime we hold unlawful today.”

Will academic programs that target first generation students be next on the chopping block? What about programs that carve out spaces for students who come from poorer backgrounds? Not too long ago, one of the arguments against Biden’s student loan forgiveness was that the decision to forgive additional money for students who qualified for Pell grants was an unconstitutional way of backdooring race into student loan forgiveness. Much like a disproportionate amount of Pell grant recipients coming from a minority background, the histories of redlining, standardized testing, and the school to prison pipeline have done their parts to skew the playing field against students who could stand to benefit from affirmative action. Yes, this includes racial minorities, but other special interest groups could be on the chopping block too — let’s not forget that white women were massive benefactors from affirmative action.

In the meantime, maybe try getting one of your kids in on a legacy admission? Those are still fair game. For everyone else, here’s a podcast we did with one of the lawyers who defended one of the most effective avenues of equity in higher education.

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You can read the opinion here.

Chris Williams became a social media manager and assistant editor for Above the Law in June 2021. Prior to joining the staff, he moonlighted as a minor Memelord™ in the Facebook group Law School Memes for Edgy T14s.  He endured Missouri long enough to graduate from Washington University in St. Louis School of Law. He is a former boatbuilder who cannot swim, a published author on critical race theory, philosophy, and humor, and has a love for cycling that occasionally annoys his peers. You can reach him by email at cwilliams@abovethelaw.com and by tweet at @WritesForRent.

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