The White Media Has Missed a Key Part of the Affirmative Action Ruling
The
upshot isn’t just that colleges must end affirmative action but that
they’ll have to cut Black enrollment to avoid lawsuits questioning their
compliance with the decision.
Students enter the Admissions Building on the campus of Harvard University n Cambridge, Mass. (Glen Cooper / Getty Images)
The Supreme Court’s decision in Students for Fair Admissions v. Harvard,
the case banning race consciousness in college admissions, is facially
unenforceable. That’s an underreported aspect of Chief Justice John
Roberts’s gobbledygook ruling, mainly because most of the white people
doing the reporting have adopted the gospel of “race-neutral” and “color
blindness” without giving those concepts a whole lot of critical
thought. But humans cannot retroactively make themselves unaware of
race. People cannot un-conscious themselves, and ordering them
to not think about race just ensures that they will. (In her dissent,
Justice Ketanji Brown Jackson called it a “classic pink-elephant
paradox.”) The court expects college admissions officers to know about
the race of their applicants, and not care, but there’s really not going
to be any way to tell if colleges are disregarding the precise bit of
information the court wants them to.
As a result, the real upshot of the affirmative action ruling is
this: Colleges and universities must now punish Black applicants by
decreasing the enrollment of Black students, by any means necessary.
That’s because the only way universities can show compliance with
Roberts’s new rules is to show that they’ve decreased the number of
Black kids they let into school. Anything less than that will likely
trigger litigation from the white supremacists who have already promised
to hunt down schools that admit too many Black people, as determined by
their own white-makes-right accounting system.
This intended revival of segregationist educational opportunities
flows directly from the sheer hubris of Roberts’s attempt to legislate
how admissions officers think, along with his open threats to
universities that do not comply with his version of thought-policing. In
his decision, Roberts expects that colleges and universities will be
responsible for self-enforcing his ruling, but he also warns them that
additional litigation will be coming their way if they try a work-around
to achieve racial diversity in their classes. Again, the white media
has made a big deal about the part of Roberts’s ruling where he says
that colleges can still consider how race has affected an applicant (for
instance, as described in a college essay), but they’ve ignored the
last lines of his ruling where he specifically threatens schools that
use those very essays to achieve racial diversity.
Roberts writes:
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…. “[W]hat cannot be done directly cannot be done
indirectly. The Constitution deals with substance, not shadows,” and the
prohibition against racial discrimination is “levelled at the thing,
not the name.”… A benefit to a student who overcame racial
discrimination, for example, must be tied to that student’s
courage and determination. Or a benefit to a student whose heritage or
culture motivated him or her to assume a leadership role or attain a
particular goal must be tied to that student’s unique ability to contribute to the university.
I’s sho hopes Massa Roberts thinks I is a good Negro wit the determination to keeps learnin’ my letters at the fancy school.
Roberts’s closing flourish here is trash on many levels. First of
all, I don’t recall anyone appointing him as the chief judge for how
Black people are supposed to overcome racial discrimination. Second, I’d
argue that college admissions officers should pay special attention to
applicants who didn’t fully overcome the hurdles white people
put in their way, but might do so in the future. And third, Roberts’s
paean to model minorities is still a white man’s wishes disguised as a
legal remedy: How in the hell will Roberts know if some essay reader saw
“courage and determination” in an applicant? How can Roberts possibly
know what constitutes a unique contribution to a university, and how can
Roberts place himself in a position to second-guess what the admissions
officers on the ground think are worthwhile contributions?
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Most important of all, how can Roberts, or anybody else, know if
universities are following his rules? Roberts doesn’t tell us outright,
but he sure drops a powerful hint. In his decision, he effectively
accuses Harvard of using a backdoor quota system to maintain a
consistent rate of Black students. He writes: “For the admitted classes
[at Harvard] of 2009 to 2018, black students represented a tight band of
10.0%-11.7% of the admitted pool.” He adds in a footnote: “Harvard must
use precise racial preferences year in and year out to maintain the
unyielding demographic composition of its class.”
Even if you think Roberts is right (and I’ll point out that
Roberts offered no evidence that Harvard “must” be using precise racial
preferences to achieve this kind of diversity, nor did the trial court,
whose presentation of facts was what Roberts was supposed to be bound
by, instead of his own conglomeration of fact-free inferences), how will
a school like Harvard prove, to Roberts’s satisfaction, that it is not
using racial preferences in the future?
The answer: Only a decrease in Black enrollment is likely to
satisfy Roberts. If Harvard maintains its class diversity, Roberts will
accuse it of using racial preferences. If Harvard increases Black
enrollment, Roberts will accuse it of using newly unconstitutional
race-consciousness to promote Black applicants—beyond historical levels,
he’ll likely say. Only a decrease in Black enrollment will satisfy
Roberts’s unworkable standard of ignoring race. It doesn’t actually
matter how Harvard goes about putting together its class: If this
doesn’t produce Roberts’s desired outcome of decreasing Black
enrollment, Roberts will accuse it of thinking about race.
Of course, Roberts doesn’t say by how much universities will have
to decrease their Black enrollment to satisfy his new legal
requirements. If he had, white media might actually have reported on
this aspect of his ruling. Instead, Roberts can almost certainly rely on
the efforts of outsourced goons to keep an eye on universities and sue
them if too many Black kids get in. One goon squad leader in particular,
Trump political adviser Stephen Miller, has already volunteered to do this work, and has basically said the quiet part aloud.
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Miller is currently the head of some accursed nonprofit called
“America First Legal,” and shortly after the ruling he released a video
in which he explained that his organization sent threatening letters to
200 law schools. In the video, Miller said: “If they tried to violate,
circumvent or bypass, subvert or otherwise program around that ruling,
we are going to take them to court. We are going to hold them to
account.” In the letter to Harvard Law School Dean John Manning, Miller
warned him of “the consequences that you and your institution will face
if you fail to comply with or attempt to circumvent the Court’s ruling.”
I guess it was nice for Miller to send a letter, since historically
these “warnings” about the “consequences” of being too nice to Black
people come in the form of burning crosses, but the upshot is the same.
Miller is telling schools straight out that any attempt to maintain
diversity will be met with costly litigation. And the only way Miller or
anybody else can know if a school is not attempting to “bypass,
subvert, or otherwise program around” the court’s ruling is if those
schools manufacture a performative decrease in Black enrollment.
It is worth noting that nothing in Roberts’s ruling or Miller’s
posturing requires universities to increase enrollment of AAPI students,
the students these white-wing forces used to accomplish their agenda.
Roberts was unconcerned that enrollment for AAPI students at Harvard
also remained in a tight band (around 18 to 20 percent) for a decade,
and his ruling does not require universities to increase that number.
Miller is not threatening to sue schools if they don’t admit more AAPI
students. As usual, the concerns of AAPI students are left wholly
unaddressed by this ruling, a fact that some Asian Americans who have
celebrated the decision seem to deliberately ignore. The point, for
these people, is that Black enrollment goes down, not that AAPI
enrollment goes up.
I don’t know how many Black people Miller or Roberts think should be
enrolled in a college or university, but however many Black kids are
enrolled right now is too much for them. The situation right
now is the standard that all future litigation will be set against, and
if schools don’t significantly decrease Black enrollment to the
satisfaction of white supremacists, Stephen Miller will be coming, and
John Roberts will have his back. Universities were not using a quota
system before, but now they pretty much have to, with a Black enrollment
number lower than it was before as the new hard cap.
Going forward, it will be beneficial for some Black students—any
whose test scores are less than exemplary—to pass as white or “other” on
their college or graduate school applications. That’s because colleges
and universities are now disincentivized from extending an offer to
anybody they have to report as “Black,” for fear of being sued for
admitting too many.
The affirmative action ban is not race-neutral; it’s anti-Black.
And that is precisely how people like Roberts and Miller intend to apply
their new rules.
Elie Mystal is
The Nation’s justice correspondent and the host of its legal podcast,
Contempt of Court. He is also an Alfred Knobler Fellow at the Type Media Center. His first book is the
New York Times bestseller
Allow Me to Retort: A Black Guy’s Guide to the Constitution, published by The New Press. Elie can be followed