Waiting for the judges
Sometime in the next 10 days, the Supreme Court is expected to strictly limit or prohibit race-based affirmative discrimination in college admissions. The verdict could come tomorrow or Friday, June 30, before the judges leave for their summer vacation.
In today’s newsletter, I’ll run through two of the major uncertainties about the decision – one related to the ruling itself, the other related to the political response. The dynamics of both questions are very different from last year’s high-profile abortion case.
The details are important
In the abortion case, Dobbs v. Jackson Women’s Health Organization, the details of the court’s ruling were of secondary importance. The justices faced a fundamental decision: Should they overturn Roe v. Wade and allow states to ban abortion? Once a majority of judges decided to do so, the written opinions they issued were less meaningful.
“The decision in Dobbs was essentially binary,” Adam Liptak, who handles the Supreme Court case for The Times, told me. “The affirmative action statements are probably more complicated and raise more questions than they solve.”
Many experts expect the court to knock down the two specific race-based admissions programs they review, at Harvard and the University of North Carolina. But the detailed rationale will matter. It will shape future admissions policies, as well as any legal challenges to those policies by opponents of affirmative action.
One question is whether the judges will allow college administrators to monitor the racial makeup of the students, even if they can’t use race-based admissions preferences. In a case from 2007 regarding K-12 education, Judge Anthony Kennedy (now retired) made this subtle distinction. He believed that schools could use racially neutral factors to achieve racial diversity.
What does that mean? Imagine if a university gave an admissions bonus to children of all races who grew up in a neighborhood with a poverty rate of at least 15 percent. Under Kennedy’s standard, the college could still analyze how many black students enrolled — and change the threshold to, say, 20 percent, in part to increase black enrollment.
However, the current court may reject Kennedy’s award. It could decide that racial diversity is not a legitimate factor for colleges to prioritize and could block almost any discussion of race.
Either way, the verdict probably won’t be the last word. The admissions process is too complex for the judges to anticipate every scenario. The ruling instead becomes the ground rules on which future lawsuits will be fought.
A recoil is unlikely
Barring a big surprise from the court, the ruling is likely to anger many Democrats. They may also be tempted to assume that there will be a political backlash, as happened after the Dobbs ruling.
In that case, the court indeed acted contrary to public opinion. Polls show that most Americans support widespread access to abortion, at least early in pregnancy. After the court overturned Roe and abortion became less available, some voters apparently responded by voting for Democrats in last year’s midterm elections.
“But,” as my colleagues Michael Powell and Ilana Marcus recently wrote, “the politics of affirmative action is different.”
Most Americans oppose race-based admissions programs, polls show. When these programs appeared on the ballot, they almost always lost, including in Arizona, California, Michigan, and Washington State, which are barely red states. Three years ago, California policy lost in heavily white and Asian communities — and fared worse in black and Hispanic areas than Democratic candidates.
If Democrats try to generate mass outcry over a court ruling on affirmative action, they’re likely to be disappointed, as Carlos E. Cortés, a historian at the University of California, Riverside, and himself a proponent of the policy, recently told The Times said. “If they continue to make a case of it, they will only alienate Hispanic and Asian voters,” Cortés said.
Still, the Democrats may have a more promising path ahead of them. Polls also show that most Americans are in favor of giving students credit for overcoming economic disadvantages. And economic disadvantage is not evenly distributed about racial groups.
In particular, policies that take into account family wealth and neighborhood wealth – rather than just parents’ income, poverty rate and education – are likely to result in diverse classes. They will also likely remain legal no matter what the judges say about race. If liberals take a big step to expand those policies, it could have a big effect.
“On the one hand, a Supreme Court decision ending racial preferences represents a crisis,” said Richard Kahlenberg recently wrote for the liberal patriot. “Simply ending racial programs without coming up with something new would devastate black and Hispanic constituencies and be terrible for the country. But Democrats will also have had the opportunity to create something better—affirmative action policies that remind working people of what they have in common, not what divides them.”
And a tip: More so than with other major Supreme Court cases, I encourage you to look beyond the headlines and into the details of the coverage. And remember, journalists don’t get copies of Supreme Court rulings, which typically come out around 10 a.m. Eastern time. We have to spend the morning understanding them. As a result, coverage of a complex decision is usually strongest from noon onwards.
Related: Students whose lives have been shaped by race-conscious admissions share their thoughts.
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