Affirmative Action Can Still Be Affirmative
In Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, the Supreme Court in a 6-3 decision seems to have struck down race-based admissions under the Affirmative Action program. They certainly intended to. But in their zeal to not appear totally racist, the six conservative justices not only created an avenue to maintain race-based admissions but also provided the historical precedent that could serve as a roadmap.
Chief Justice Roberts, in his majority opinion, left the door open for Black or Brown applicants to end run the prohibition through essays or personal statements, as long as each applicant was evaluated as an individual. He wrote:
“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. In other words, the student must be treated based on his or her experiences as an individual—not on the basis of race.”
Under these guidelines, if a university does not adhere to a specific program or include a check box on an application, the admissions office is free to make a subjective decision on an applicant and stay within the bounds the Court has established.
There is historical precedent for this, although not one the justices should be proud of. The cases in question were decided a century and a half ago, and also focused on discrimination against Black Americans, this time concerning the right to vote.
By 1880, the advances of Reconstruction had been turned back and white supremacists had reasserted control in much of the South. Voter rolls were being purged of Black registrants, which in turn led to discriminatory legislation enacted by white-dominated state legislatures. Equal rights advocates saw the Supreme Court as their only hope. In two cases reported on March 1, one immediately after the other, the Court made its position clear.
In the first, Strauder v. West Virginia, the justices ruled that a state law explicitly limiting jury service to white men was in violation of the 14th Amendment and that Taylor Strauder, a Black man convicted by an all-white jury of murdering his supposedly unfaithful wife, must be granted a new trial. Although Strauder is often cited as an equal rights victory, it was anything but. Moments later, the Court, in Virginia v. Rives, sustained the murder convictions of two African American brothers by an all-white jury because, although Blacks were never called to serve on juries in Virginia, there was no specific law that prevented it.
Southern whites understood the guidelines the Court had provided. So long as a law did not announce its intention to discriminate, it would pass judicial muster. During the next two decades, white supremacists attacked voting rights by drafting laws and new state constitutions in which the language was “facially neutral” but, using literacy tests, grandfather clauses, poll taxes, and residency or property holding requirements, were specifically designed to keep Black Americans from the ballot box. In theory, these provisions applied to whites as well, but white registrars made certain that the laws were applied only selectively.
Some states employed methods sufficiently ludicrous to be worthy of Saturday Night Live. South Carolina, for example, introduced the “eight-box ballot,” equipped with eight separate slots, each designated for a specific candidate or party. To cast a valid vote, a person needed to match the ballot to the correct slot, but obscure labeling made doing so for anyone not fully literate virtually impossible. Whites were assisted by poll workers, while blacks were left to try to decipher the system on their own.
None of this was done in the shadows. James K. Vardaman, later to be elected both governor and United States senator, boasted of Mississippi’s new constitution, “There is no use to equivocate or lie about the matter. Mississippi’s constitutional convention of 1890 was held for no other purpose than to eliminate the nigger from politics…let the world know it just as it is.”
Court tests of these new state constitutions went nowhere. In June 1896, another Black man, Henry Williams, was indicted for murder in Mississippi by an all-white grand jury. His attorney sued to quash the indictment based on the systematic exclusion of Blacks from voting rolls. Yet although virtually none of the state’s 907,000 Black residents were registered, and state officials had publicly announced their intention to disenfranchise them, the Court ruled that the burden was on Williams to prove, on a case-by-case basis, (just as the Supreme Court today is insisting that a college judge applicants on a case-by-case basis) that registrars had rejected African American applicants strictly because of race. Justice Joseph McKenna wrote that the Mississippi constitution did not “on [its] face discriminate between the races, and it has not been shown that their actual administration was evil; only that evil was possible under them.”
In fact, the Court’s recent affirmative action decision bore sufficient similarity to the Strauder/Rives decisions that Chief Justice Roberts seemed aware of the loophole he had created—and he attempted to close it. “But…universities may not simply establish through application essays or other means the regime we hold unlawful today…what cannot be done directly cannot be done indirectly. The Constitution deals with substance, not shadows.” (Would that he had taken the same position in Shelby County v. Holder.)
The problem for Roberts and his fellow conservatives is the same problem that Black voting registrants faced in the post-Rives South. How to prove it? In view of the current ruling, any plaintiff questioning a university’s admission policies would have to demonstrate that an applicant was admitted specifically on the basis of race. If universities are not obvious about it, that will be every bit as difficult as proving one was denied the right to vote for the same reason.
If the Supreme Court really wants to create a strict meritocracy in American universities, perhaps they might invalidate legacy admissions or those involving the offspring of large donors—but of course, that might prevent some of their children from going to Harvard or Yale.