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Reality of Zero-Sum Game of College Admissions Was Critical To Supreme Court Affirmative Action Ruling

Reality of Zero-Sum Game of College Admissions Was Critical To Supreme Court Affirmative Action Ruling

Despite attempts to cast racial preferences as merely a helping hand to minority applicants, those preferences ultimately mean that a proportional amount of non-minority individuals will be rejected based, in part, on their race.

The responses that emerged immediately after the Supreme Court released the Students for Fair Admissions v Harvard College decision and its companion case involving the University of North Carolina have been swift, heated, and at times hyperbolic.

The decision reached by the Court effectively ends the direct use of race in college admissions, which has been traditionally accomplished through programs commonly called Affirmative Action. In ending those programs, the Court held that the direct use of race in admission decisions violated the Equal Protection Clause of the 14th Amendment to the Constitution.

Writing in support of the Court’s decision Chief Justice Roberts observes:

In other words, the student must be treated based on his or her experiences as an individual—not on the basis of race. Many universities have for too long done just the opposite.

Writing in response and in dissent to the decision, Justice Sotomayor writes that the Court’s decision:

holds that race can no longer be used in a limited way in college admissions to achieve such critical benefits . . . . The Court subverts the constitutional guarantee of equal protection by further entrenching racial inequality in education, the very foundation of our democratic government and pluralistic society.

Despite Justice Sotomayor’s and many others’ claims, the Court’s decision has not ended all diversity-oriented efforts. Instead, the decision emphasizes and centers the value of diverse experiences rather than trivializing them by reducing them to simple categories. Although universities can no longer directly consider the race of a candidate, they are still permitted to consider how race has affected the applicant’s experience, development, and as a result, their individual qualifications. Stories about overcoming adversity, discrimination, difference, and unique perspectives remain a viable and important part of what a university may use.

Minimizing these individual merits and assigning value based purely on imperfect and overly broad racial categories (for example, no disaggregation of East, Southeast, and South Asians or Middle Eastern individuals) does not forward any desirable goal.

Chief Justice Roberts summarizes this point clearly:

. . . they have concluded, wrongly, that the touchstone of an individual’s identity is not challenges bested, skills built, or lessons learned but the color of their skin. Our constitutional history does not tolerate that choice.

The Court struck down race-based admissions on the grounds that the practice violated the Equal Protection Clause of the 14th Amendment because it was not narrowly tailored to a compelling and measurable interest. In making that determination, the Court holds that to be narrowly tailored, the policy must be applied only when absolutely necessary and no other reasonable alternatives exist. Despite shouts to the contrary, this approach has been the basis of much jurisprudence around the Equal Protection Clause.

The Court had historically recognized two major instances where racial discrimination can be considered narrowly tailored. The first is rectifying immediate and explicit instances of previous discrimination, and the second is preventing violence. Yet even in these instances, the Court has been reluctant to widen the explicit use of race to general decision-making. For example, in City of Richmond v. Croson, the Court struck down a municipal policy to award a percentage of contracts to minority-owned businesses. They held that although minorities have faced injustice in the past and present, justifying a policy on that general notion is not narrowly tailored and, therefore, unconstitutional.

Affirmative action itself changed the approach of the Court and, as a result, opened a third exception. The Court, in Grutter v. Bollinger, recognized that schools had a compelling interest in creating diverse student bodies with important caveats.

The first is that universities should not use race as a means to stereotype applicants, drawing broad conclusions about what a student may offer based solely on race. The second is that affirmative action must not harm non-minority applicants by discounting their worth. Finally, and most importantly, race-based admissions are a necessary evil that must eventually end. Justice O’Connor, in her Grutter opinion, asserted that “the Court expects that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.”

In Students for Fair Admissions, Harvard and the University of North Carolina failed to meet any of the rigorous standards laid out by the Court. To justify their race-based admissions, they offered nebulous and unmeasurable goals (objectives must be measurable under Fisher v. University of Texas, a previous affirmative action case) such as “training future leaders” and “preparing engaged and productive citizens.” As commendable as these goals may be, there is little evidence that decision-making based on race in the application process is absolutely necessary to forward these objectives.

The universities further claimed that affirmative action, as implemented by their programs, does not harm non-minority applicants; the reality is that college admissions are a zero-sum game. A reality pointed to by the Court directly. Despite attempts to cast racial preferences as merely a helping hand to minority applicants, those preferences ultimately mean that a proportional amount of non-minority individuals will be rejected based, in part, on their race.

Harvard and UNC failed the last test laid out in Grutter: an intention to end affirmative action. With Gruttter decided in 2003, twenty of the twenty-five years suggested by the Court have passed, and schools like Harvard have shown no intention of winding down race-based admissions. In fact, they have admitted that their own internal reviews call for the continued use of affirmative action. Furthermore, their regular public statements, as well as their immediate reactions to the Court’s decision, all display their commitment to emphasizing the role of race more, not less, in the immediate and long run.

Despite the clamor and vitriol quickly emerging over the end of the direct use of race in college admissions, the decision reached by the Court should not have been unexpected given the plain text of the 14th Amendment and the jurisprudence surrounding it. Discussions around race, the meaning of equality, and how that equality might be achieved will continue, and nothing from the Court’s decision changes that reality. What the Court lays out is a clear requirement that instead of simply relying on simple racial classifications, colleges must instead consider the individual candidate, their abilities, and their unique circumstances.


Dr. Ryan M. Yonk is Senior Research Faculty at the American Institute for Economic Research.

Ethan Yang is an adjunct research fellow at the American Institute for Economic Research and a 3L at Antonin Scalia Law School, George Mason University.


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When you make special rules to allow certain groups an advantage in college admissions, then you create a never ending pattern of generous specialized rules for them that will follow them throughout their lives. You have to alter grading systems lest this group fails to compete equally. You create quotas for hiring, promotions, etc., lest members of this group do not compete equally. It just goes on and on with out end. However, it cannot be forgotten that nature and reality don’t abide by these rules so what happens when the surgery fails, the plane crashes, the battle is lost, or whatever, when members of this protected group are realized for the Potemkin Village of competence they really are? Obviously, the only real conclusion to be drawn is that Mother Nature is racist. (sarc)

    JohnSmith100 in reply to Cleetus. | July 4, 2023 at 1:47 pm

    Affirmative Action was sold America based on identifing QUALIFIED people who merited a hand up, when they found that there were not as many people with merit as they thought they should have, they perverted AA into a completely meritless handout. Looking at Harvard’s stats, for every AA person who had merit, they promote 15 meritless AA admissions. Those in turn will become 15 meritless employees.

      MajorWood in reply to JohnSmith100. | July 4, 2023 at 2:27 pm

      And the creation of 6 year medical schools. Here is a good question to ask your new doctor. “What did you do during your summers off in med school?” If they say “Summers off? I took classes.” find a new doctor.

My only criticism of this excellent majority opinion is why it left race-based admissions in place at military academies. Equal Protection should be applied uniformly, across the board, without exception.

    Eagle1 in reply to guyjones. | July 4, 2023 at 7:04 pm

    It was beyond the scope of the decision.

    I am somewhat surprised that the CJ felt a need to address it at all, other than there were competing amicus briefs from retired senior officers (in support of AA) and thousands of lesser ranking alumni (in support of ending AA). IMHO the Congressional nomination system would appear to address these concerns.

Good question. I’m not a lawyer but it would seem the 14th Amendment should apply to those who take an oath to defend it and the rest of the Constitution. Maybe it takes a specific case(s) brought directly against the academies to get it done..

It’s all a hash created by a flawed civil rights law, which ought to have eliminated freedom of association only in monopoly markets, not in general.

Had they done it right, Harvard could do any thing it wants and suffer the reputation hit, and the legal question would not come up. Presumably state institutions would be restricted from considering race, as would be military academies.

On the question of federal money, it ought to be asked what is is spent to achieve, not whether it should be used to intrude on private choices.

    Ironclaw in reply to rhhardin. | July 4, 2023 at 10:12 am

    They still can do anything they want and suffer the reputation hit, they just can’t accept federal money at the same time. I support that distinction because I don’t wish to support institutionalized racism with my tax dollars.

The Supreme Court roundly rejected the base creed of the woke: Reducing every individual to the “intersection” of accidental qualities.

“Despite attempts to cast racial preferences as merely a helping hand to minority applicants, those preferences ultimately mean that a proportional amount of non-minority individuals will be rejected based, in part, on their race.”

Asians are a minority in the US.

Fine post Dr. Yonk. Welcome to LI!

Keeping your thumb on the scales makes everything equal or something. The Marxists will do what they want and just do it a different way.

    Valerie in reply to Neo. | July 4, 2023 at 12:58 pm

    When my youngest son graduated from a magnet high school in California, the UC system announced that they would adjust the SAT scores of the kids on racial lines when considering admission of students. The pretense by the NYT that race-based admissions standards affect only the Ivy league is an outright lie.

    Further, in the UC system, affirmative action has also taken the form of social promotion of minorities based on skin color, even to the doctoral level. Social promotion based on skin color also permeates elementary and high schools, which may be a substantial part of the reason why parents and employers regard our current school system as largely failed.

Booker T. Washington | July 4, 2023 at 9:53 am

“There is a certain class of race problem-solvers who don’t want the patient to get well, because as long as the disease holds out they have not only an easy means of making a living, but also an easy medium through which to make themselves prominent before the public.” ~ Booker T. Washington

Booker T. Washington | July 4, 2023 at 9:55 am

“No greater injury can be done to any youth than to let him feel that because he belongs to this or that race he will be advanced in life regardless of his own merits or efforts.”

— Booker t Washington

Re: For example, in City of Richmond v. Croson, the Court struck down a municipal policy to award a percentage of contracts to minority-owned businesses.

Reworded?? In XYZ versus the State of California, the Court struck down a state policy to award a percentage of public money to certain minorities, based on family history.

Yes, when you unfairly promote one person, another is denied that opportunity. Since I would like to be able to hire doctors and lawyers as well as other professionals, I would prefer that the degrees the have be based upon merit and ability rather than “preference.” I don’t want the pilot of my airliner to be the guy who was pushed through because of some immutable trait.

    henrybowman in reply to Ironclaw. | July 4, 2023 at 2:13 pm

    “I don’t want the pilot of my airliner to be the guy who was pushed through because of some immutable trait.”

    When you think about it, America was formed because we didn’t want the leaders of our government to be chosen precisely the same way. And ironically, now they are… again.

E Howard Hunt | July 4, 2023 at 10:18 am

Will the high court’s stand on affirmative action now lead to a call to remove a few of its members whose low intelligence or non-judicial temperament betray their status on the court as tokenism?

The African Queen should count herself lucky and blessed

With her, the percent of blacks on the SC is 22.22%, over the 13% of the population

Note no Asians, no American Indians

And still she bitches

Frederick Douglass | July 4, 2023 at 11:41 am

People ask, “What shall we do with the Negro?” I have had but one answer from the beginning. Do nothing with us! Your doing with us has already played the mischief with us. Do nothing with us! If the apples will not remain on the tree of their own strength, if they are wormeaten at the core, if they are early ripe and disposed to fall, let them fall! I am not for tying or fastening them on the tree in any way, except by nature’s plan, and if they will not stay there, let them fall. And if the Negro cannot stand on his own legs, let him fall also. All I ask is, give him a chance

— Fredrick Douglass

I learned thru experience that if you can say that white southerners were racists then blacks are racists.

Why would the Biden grandchild want help from her grandfather to get in to Penn? Does she honestly think she’s fooling anybody?

Michelle Obama had to have felt intellectually overmatched at Princeton. Every day. Why would she wish such torment on a younger generation?

And today in the 21st century, roughly two whole generations since the passage of the Civil Rights Acts of 1964 and 1965 …… and given all the data on SAT scores vs race vs likelihood of getting admitted to places like Harvard etc., why would anybody with subpar scores ACCEPT admission to such places? Knowing that really you do not belong there.

Accepting someone on to the U.S. Olympic Track Team , for example, does not obligate anyone to accept the invitation. If you know that your times don’t measure up, why would you want to participate in the farce?

And even if you tried it out for a semester or two … I mean, come on.

    henrybowman in reply to Aristotle. | July 4, 2023 at 2:17 pm

    “Michelle Obama had to have felt intellectually overmatched at Princeton. Every day. Why would she wish such torment on a younger generation?”

    A poor choice of example, perhaps. From her mansion on MV, I’m sure she feels every minute was worth it.

    MajorWood in reply to Aristotle. | July 4, 2023 at 2:34 pm

    Hmmmmm, since we have the Special Olympics, perhaps it is now time for “Special Harvard.” I can see the T-shirt now, especially since it was estimated in the past that 90% of people wearing Harvard T-shirts (nowadays that is only about 10% 😉 ) Perhaps even a David Hogg limited edition.

      MajorWood in reply to MajorWood. | July 4, 2023 at 2:36 pm

      90% couldn’t get accepted. The David Hogg thought interupted my typing with an outburst of laughing. It happens, A LOT.