The Death Knell of Affirmative Action?

Though the Supreme Court will not publish its decision in two suits brought by the Students For Fair Admissions (SFFA), an Asian-American advocacy group, against Harvard University and the University of North Carolina until next June, it is widely expected that the Court will follow the dictum of Chief Justice Roberts, in an earlier affirmative action case: “The way to stop discriminating on the basis of race is to stop discriminating on the basis of race.”

In doing so, the Court will be faithfully reading the plain statutory language of Title VI of the Civil Rights Act of 1964: “No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation, be denied the benefits of, or be subjected to discrimination under any program receiving Federal financial assistance.” That itself constitutes a powerful restatement of the foundational principle of the Declaration of Independence — “All men are created equal,” and as such imbued by their Creator, as individuals, with certain inalienable rights. The more that principle is emphasized, the closer we are to realization of Martin Luther King’s dream of an America in which his four brown children would be “judged not by the color of their skin but by the content of their character.”

Judging people as individuals, and not just as members of categories determined at birth, is a value supported by an overwhelming majority of Americans. Seventy-four percent, according to a recent PEW survey, oppose the use of racial categories in college admissions, including nearly three-fifths of blacks and 68% of Hispanics.

Nevertheless, numerous elite institutions are busy seeking ways to circumvent the anticipated Supreme Court decision. They may not be as open about their intentions as Governor Orville Faubus standing at the door of a Little Rock school in 1957 to prevent black children from entering, after Brown v. Board of Education, but they are equally intent on ignoring the Supreme Court’s directives.