January 6, 2024 - 8:00am
Legal activists are working to end racial discrimination in hiring and school admissions through a handful of court cases currently moving towards the Supreme Court.
In 2023, the Supreme Court struck down affirmative action in Students for Fair Admissions (SFFA) v. Harvard and UNC. The ruling narrowly banned the practice of direct racial discrimination in college admissions, but universities appear to be using loopholes to skirt the ban. Due to the ruling’s limited application, it means that racial discrimination, both direct and indirect, still thrives in elite high school admissions and in hiring practices across the country.
The extent to which universities are still factoring in race in admissions will become apparent in April, when acceptance decisions are released. But since the court’s June ruling, universities quickly seized on its ambiguities, encouraging students to mention their race in college essays. Johns Hopkins University, for example, asked applicants to “tell us about an aspect of your identity (eg. race, gender, sexuality, religion, community, etc.) or a life experience that has shaped you as an individual”, while Rice University asked, “What perspectives shaped by your background, experiences, upbringing, and/or racial identity inspire you to join our community of change agents at Rice?”
Some universities may actually be crossing the line into territory that explicitly violates the court’s ruling, rather than merely violating it in spirit, according to Edward Blum, president of Students for Fair Admissions (SFFA), the group behind SFFA v. Harvard.
“SFFA is closely monitoring a few universities where we believe their required essays are little more than racial classification checkboxes,” Blum told UnHerd, though he declined to name them due to likely litigation.
Several prestigious high schools are using racial proxies such as zip codes or what middle school a student attended as factors in admissions. The Supreme Court is expected to announce in the coming weeks whether it will consider one such case: Coalition for TJ v. Fairfax County School Board.
Parents affiliated with Thomas Jefferson High School for Science and Technology, one of the top-ranked public high schools in the US, are suing the institution over admissions standards imposed in 2020 which they argue racially discriminate in violation of the Constitution. The school replaced standardised testing with a “holistic” admissions process and subsequently saw a massive decline in the admission of Asian students. After losing in federal court, the parents are appealing their case to the Supreme Court, which could use it as an opportunity to expand the affirmative action ban beyond higher education.
Erin Wilcox, an attorney at Pacific Legal Foundation who is litigating on behalf of the parents, told UnHerd that universities will likely adopt racial proxies like those used by K-12 institutions in order to skirt the ban on direct racial discrimination.
“It’s just as unconstitutional to discriminate based on race by proxy as it is to do it outright,” she said. “And so I think the Supreme Court needs to be very clear, and issue a ruling that that kind of discrimination is illegal as well.”
Blum is hopeful that the judicial system will continue striking down racially discriminatory practices, and that the Supreme Court will pick up Coalition for TJ’s case or one like it and ban direct racial proxies in high school admissions.
“In dozens of polls over the last 20 years, the vast majority of Americans of all races believe that someone’s race should not be used to help them, or harm them, in their life’s endeavours,” he told UnHerd. “The courts are finally applying our nation’s civil rights laws as they were conceived.”
Blum has good reason to be optimistic. Roberts, the most moderate member of the Supreme Court’s 6-3 conservative majority, seemed to hint that the door was open for further restrictions on race-based discrimination in the majority opinion he authored.
“Eliminating racial discrimination means eliminating all of it,” Roberts wrote. “Accordingly, the Court has held that the Equal Protection Clause applies ‘without regard to any differences of race, of color, or of nationality’— it is ‘universal in [its] application’. For ‘[t]he guarantee of equal protection cannot mean one thing when applied to one individual and something else when applied to a person of another color.’”
Join the discussion
Join like minded readers that support our journalism by becoming a paid subscriber
To join the discussion in the comments, become a paid subscriber.
Join like minded readers that support our journalism, read unlimited articles and enjoy other subscriber-only benefits.
SubscribeReally makes one wonder about the standard of student that are both going in and eventually coming out of these places when considering these policies and the Gay debacle.
You must be equally horrified by the scandal emerging about Ackmans wife?
No? Gosh, i wonder why?!?!?
Not exactly headlines news
HR women and their consequences have been a disaster for the human race.
We should immediately revert to the term
PERSONNEL.
HR makes it sound like a food, Soylent Green perhaps .
Nobody cares what you think Racist Grandpa. Have another whisky and go back to sleep.
Ms Gobshite are you aware that in England CS is a euphemism for HYPOCRITE?
Invariably someone who spouts socialist drivel such as your good self, but also attempts to live a patrician lifestyle. The late Tony Benn was a good example whilst today the ridiculous Diane Abbott* is another.
(*And NOT for allegedly copulating with Corbyn I hasten to add.)
Spot on, Mr Stanhope, but I suspect that our resident champagne-guzzling socialist is not just a hypocrite, but a forum troll whose mission is to insult and to stir the pot. I make it a point to not feed trolls. Nothing makes them angrier than being ignored.
You are absolutely correct and I am duly admonished and shall endeavour to resist temptation in future.
I thank you.
… a disaster aided by single-gender primary school teachers.
Those on the left, including the HR infestation, would say there is no such thing as a single gender.
God, you people are miserable scumbags. Have you ever been happy for a moment? Is there anyone you don’t hate?
Is it really impossible for you to write anything without sneering or insulting? What a very unpleasant person you must be.
However impassioned the arguments are for affirmative action, or an evening up of the scales, they cannot get past some inescapable truths.
Any and all “positive discrimination” for one group requires actual discrimination against another.
Equality of Opportunity is a laudable goal and should be argued for and worked towards by all right thinking people.
Equality of Outcome is impossible, unworkable and requires inequity against one party to achieve “equality” for the other. This should be argued against by all right thinking people.
Applying artificial quotas in any sector – to try and correct perceived imbalances – almost always leads to resentment from those who feel that not everybody is being rewarded on merit and, rather than healing divisions, it actually exacerbates them.
It is more sinister than that. Exempt from DEI, the children of the elite will have their places at these institutions come what may.
It is the white children who would otherwise have got in on merit who will excluded
And the Asian children
They might not be good at anything else but give college faculty and administrators credit for cunning and knowing how to play the system.
No doubt the Supreme Court, populated by religious maniacs and outright crooks like Clarence Thomas, will find some excuse to continue the persistence of white privilege in higher education in the United States.
Jolly good.!
Privilege: an accusation often made by those who benefitted the most from it against those who benefited the least.
Affirmative action discriminates against those groups it tries to advantage. Claudine Gay might have tried harder and produced more papers if affirmative action hadn’t encouraged her complacency.
Well-meaning, but unlikely. The world will continue to turn with fewer academic papers.
It is noteworthy that the left (i.e. Democrats) unanimously voted against the 14th amendment in 1867. This amendment has multiple facets. 1st it recognized all former slaves as U.S. citizens. 2nd it sort to protect them from government discrimination through the “equal protection clause”. Also, it forbade states from honoring the debts of the Confederacy.
Almost 160 years later, the progressive left still works to undermine the 14th amendment. But on this issue of equal protection they are on the back foot and will lose, court case by court case. Progress!
No court ruling is going to make them stop this. They’re as stubborn and sanctimonious as Bull Connor in the old South. We’ll have to send in troops to enforce the law.
People don’t like it, the courts don’t like it, but unis do it anyway. It’s the doctrine of FYTW. One means of race-based decision making will be replaced by another because doing so is part of institutional DNA now. They do not know how to behave otherwise and the screeching activist community is not going away.