What the schools must do now

Once again, the U.S. Supreme Court has brushed aside its own precedents to achieve a long-sought conservative goal — banning race-conscious college admissions. Unlike last year’s inflammatory decision overturning abortion rights, however, this ruling is likely to be popular.

Americans have been leery of race, ethnic and gender preferences since the Nixon administration first introduced them in 1969. According to a recent YouGov poll, two-thirds of the public say colleges shouldn’t factor race into their admissions decisions. Majorities of whites, Hispanics and women take that view, as does a plurality of Blacks, Democrats and liberals.

But polls don’t quite settle the issue. Neither will the court’s ruling that the University of North Carolina violated the 14th Amendment’s “equal protection” clause and Harvard violated the 1964 Civil Rights Act by using race as one of several factors in deciding which students to admit.

The court’s ruling only applies to affirmative action in college admissions. Programs that put a thumb on the scale for women and minorities seeking jobs as cops or firefighters, in competition for government contracts and radio licenses, and for private sector jobs are pervasive — and remain controversial.

What’s more, the rationale for taking race into account arguably is stronger for colleges than for government and private employers. Higher education is not a pure meritocracy; its mission isn’t to reward people in the marketplace, but to prepare young Americans for economic competition and democratic citizenship. It aims at equalizing opportunity, not outcomes.

College academic leaders, especially private ones, should have considerable leeway to define their own institutional values and culture, to compose their classes accordingly, and give special consideration to those they’ve historically excluded.

When colleges can give preferences to legacies, athletes, and donors’ kids, it’s not easy to understand why they can’t give them to other categories of people who have been underrepresented in their institutions. The outcome is the same: someone else doesn’t get admitted.

Is this really discrimination, or is it simply competition for the limited number of seats in any given institution? There are nearly 4,000 institutions of post-secondary education in America, so not getting into your first-choice school hardly ranks as cosmic injustice. Nobody has a constitutional right to get into Harvard or Yale just because they have high test scores or GPAs.

In fact, race-conscious admissions have enabled colleges to make room for promising students who lack the credentials of high academic achievers from upper-middle-class neighborhoods. This provides some compensation for the failure of our K-12 school system to provide a consistently high quality of education to families living in low-income communities.

The Supreme Court’s conservative majority, however, apparently believes that the risk of “reverse discrimination” against whites trumps the rights of higher education institutions to set their own admissions policies and define what it means to be “qualified” to attend their schools.

It’s also worth noting that previous Supreme Court rulings already had narrowly circumscribed how race could be considered in college admissions. The 45-year-old precedent the court just overturned is the 1978 Bakke ruling, which limited race-conscious admissions in two ways.

First, it allowed colleges to take race into account only for the purpose of promoting diversity on campus, not to rectify past racial injustice. Second, numerical quotas were banned; race could only be used as a “plus factor” in multifaceted evaluations of applicants’ qualifications.

But the new decision holds that any consideration of race, ethnicity or gender is unconstitutional. So now higher ed will have to devise new ways to open their doors to disadvantaged minority and female students. Because test scores are not an infallible predictor of student performance, this is a matter of casting a wider net, not lowering standards.

For example, Rick Kahlenberg, now a Progressive Policy Institute senior fellow, has long advocated for a class-based approach to affirmative action that gives preference to applicants from lower-income families. He urges Washington to increase finance support to colleges that take in more working-class students.

Michael Dannenberg argues for pegging affirmative action to family wealth. Since there’s a wide wealth gap between white and Black Americans — which few doubt reflects the nation’s legacy of systematic racial discrimination — this approach would especially favor the latter.

Another way to widen the pool of well-prepared college applicants would be to elevate K-12 reform on the nation’s agenda. There’s striking new evidence from Stanford that public charter schools are doing a better job than traditional district schools at closing racial achievement gaps.

Owing to this Supreme Court’s curiously rigid construction of the 14th Amendment, America’s colleges and universities will have to get creative to meet their goals of inclusivity and diversity.

Marshall is the president of the Progressive Policy Institute.