[The Supreme Court hearings on affirmative action revealed just
how weak the right-wing position is—but the GOP justices will
overturn the policy anyway.]
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CONSERVATIVES DON’T ACTUALLY HAVE AN ARGUMENT FOR KILLING
AFFIRMATIVE ACTION  
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Elie Mystal for The Nation
November 11, 2022
The Nation
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_ The Supreme Court hearings on affirmative action revealed just how
weak the right-wing position is—but the GOP justices will overturn
the policy anyway. _

Students for Fair Admissions founder Edward Blum departs the U.S.
Supreme Court after justices heard oral arguments on two cases on
whether colleges and universities can consider race as a factor in
admissions decisions October 31, 2022., Francis Chung / E&E News /
Politico via AP Images

 

The Supreme Court is poised to take down affirmative action and
declare the consideration of race in college admissions
unconstitutional. On Halloween, the court heard two cases aimed at
prohibiting the policy—one against the University of North Carolina
and the other against Harvard University. Over a five-hour marathon of
oral arguments, the six conservative justices all seemed willing to do
away with the most effective policy I can think of in American history
for promoting diversity and racial integration.

While a wide array of conservative-aligned people and institutions
always arrive at the conclusion that affirmative action is “bad,”
they generally fail to provide logically or legally coherent reasons
for why this policy must die. This was the case during the oral
arguments. As the justices asked their questions and telegraphed their
takes, they couldn’t even agree on why they were going to ban
affirmative action. (Diversity is bad! Diversity is good but can be
achieved by other means! Affirmative action has failed because we
still need it!) Instead, they kept throwing spaghetti at the wall,
desperately attempting to find a basis on which to issue their
predetermined ruling, because the cases in front of them are too weak
to support their extremist desires to overturn nearly 60 years of
precedent.

The cases against the universities were brought by a group called
Students for Fair Admissions, which claims to represent students from
the Asian American and Pacific Islander community who feel that
affirmative action discriminates against them. In fact, the group was
organized by a well-funded white conservative gadfly, Ed Blum, who has
made it his life’s work to end affirmative action. Actual AAPI
affinity groups, and a whopping 69 percent of AAPI voters, support
affirmative action. The idea that the white conservative legal
echo-system is attacking affirmative action _on behalf of_ Asian
Americans fails in its first contact with reality.

Moreover, the argument that race consciousness in admissions hurts
AAPI applicants is wholly unsupported. In the North Carolina case, the
facts show that the university admits a higher percentage of AAPI
applicants than Black and Latino applicants. The Harvard case is a
little more complicated, because Harvard does use a metric, called the
“personal rating,” which does seem to discriminate against AAPI
applicants. But Harvard’s use of this problematic rating has nothing
to do with affirmative action. Indeed, after the conservatives ban
affirmative action, Harvard will not be allowed to consider an
applicant’s race, but it will still be allowed to consider an
applicant’s personal rating. The very process that we know is
hurting AAPI applicants at Harvard will be allowed to continue, while
the process that has nothing to do with AAPI students will be ruled
unconstitutional.

The conservatives’ final argument against affirmative action also
fails spectacularly. An army of white people who have reduced the life
and career of Dr. Martin Luther King Jr. to one line, from one speech
they probably haven’t read, think the legal argument against
affirmative action is obvious: It’s unconstitutional to judge people
on the basis of race. But that’s not what the Constitution says. The
14th Amendment says that you must treat people equally and fairly, and
it was written with specific racial remuneration programs in mind.
Moreover, there is an entire canon of constitutional law that says
race can be taken into account if it serves a “compelling” state
interest, and it’s hard to get more compelling than diverse
representation, inclusion, and social integration.

The conservative justices can’t muster a good argument against
affirmative action because there isn’t one. The idea that
universities can consider an applicant’s legacy status,
extracurricular endeavors, gender, hometown, parental donations, foot
speed, test-taking skills, and personal rating, but not their race or
ethnicity, is preposterous on its face.

That said, the conservative lawyers and justices did make one argument
that, while not compelling, was revealing. They kept saying that
college admissions are a “zero-sum game,” the implication being
that anything that helps Black or Latino students hurts everybody
else.

And that is why affirmative action will die. It’s not
unconstitutional, and it doesn’t lead to discrimination against AAPI
students, but conservatives believe that anytime a Black or brown
person gets ahead, there’s a more deserving white person who gets
left behind. They think that America itself is a zero-sum game, and
anything that doesn’t help white Americans win that game and keep a
disproportionate share of the spoils must be stopped.

It’s not a good argument. It’s just the one they all agree on.

ELIE MYSTAL is _The Nation_’s justice correspondent and an Alfred
Knobler Fellow at the Type Media Center. His first book is the _New
York Times_ best-seller _Allow Me to Retort: A Black Guy’s Guide
to the Constitution [[link removed]]_.
He can be followed @ElieNYC.

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* affirmative action
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* Supreme Court
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* Colleges
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* Racism
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* U.S. Constitution
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