‘s Next After the Harvard Case? // (John Hinderaker)

It is sad that, 161 years after Confederates fired upon Fort Sumter and 154 years since the adoption of the 14th Amendment we still debate whether public institutions such as the University of North Carolina should have the right to practice race discrimination. One would think that this issue would be settled by now.

Liberals seem to be resigned to the reality that they will now have to pretend that discrimination on the basis of race is over. The New York Times emails a daily roundup or “news” of news. Today’s email contained this commentary on yesterday’s Supreme Court arguments.

To survive, laws need support from the public and the courts. Affirmative action appears to have neither.

This is a crucial point.

The court’s conservative majority aggressively questioned lawyers who argued in favor of affirmative actions policies, for nearly five hours. They were skeptical that affirmative action policies were fair, necessary, or the best way of addressing racial disparities in higher education. Chief Justice John Roberts, a conservative justice, has long been skeptical about affirmative action. He and other conservative justices suggested Harvard had discriminated against applicants from Asian descent by favoring them in admissions.

Is there a distinction between “discriminating against” and “disfavoring?” Any rational person would tell you that there isn’t.

The Times seems to admit that it has lost its fight to preserve the legal right to discriminate:

The theory is that lawmakers can override Supreme Court decisions. However, such a reversal usually requires support from their constituents. After all, the public elects representatives who enact laws, and place judges on the courts. To protest or criticize the courts, the public can also protest them. The public can also push for amendments to the U.S. Constitution and state constitutions. ***

Because the majority of Americans oppose affirmative action, it seems unlikely that there will be a…movement to defend affirmative action. A Pew Research Center survey revealed that nearly three quarters of Americans believed that race or ethnicity should be eliminated from college admissions. The majority of respondents were Black, Hispanic, and Asian.

A majority of voters in liberal states do not support affirmative-action policies. About 57 percent of Californians rejected a 2020 amendment to the state Constitution that would have allowed government and public institutions to adopt affirmative-action policy. Biden won more that 63 percent of the state’s vote in that election.

If affirmative action is struck down by the Supreme Court, it’s unclear what path, if any, will be available for policies like Harvard’s and the University of North Carolina to survive.

Although the Times’ conclusion is correct in terms of public opinion, it is doubtful that it is accurate. The Supreme Court will not allow American universities to accept an adverse ruling. This is in contrast to the Brown v. Board of Education decision that affected public schools in the Deep South. Federal troops and lawsuits were required to enforce the Court’s decision that public schools should be integrated. It took years before it finally happened. Harvard and other will not be occupied this time, so we will rely on lawsuits.

Practically, not much will change. America’s elite schools will be able to come up with proxies for racial identity in their universities. This will likely not have a significant impact on the composition of their student body.

Perhaps even more important is the principle: America will be a country that does away with discrimination based on race by public bodies. You were wrong to think that this principle was already in place. This will be an important step in the right direction.

However, the new system will require Asian-American students to achieve great heights to be admitted to Harvard or other elite schools. This isn’t likely, regardless of what school cover they may use.