The Court Protects Privilege

In early July, the Supreme Court struck down two efforts to address unfairness in higher education. In decisions that broke along ideological lines, the six conservative justices declared unconstitutional both the Biden administration’s student-loan cancellation order and race-based affirmative-action programs at Harvard and the University of North Carolina. Both decisions are dubious instances of judicial overreach that discount the injustices that made these efforts necessary.

Genuine American democracy requires widespread access to high-quality education, especially for Black Americans, who were first enslaved, then treated as second-class citizens, and still suffer from poverty and other social ills stemming from entrenched racism. Affirmative action made it possible for generations of Black and Latino students to gain educational opportunities they might otherwise have been deprived of. Justice Ketanji Brown Jackson surely had it right in her dissent when she wrote: “Deeming race irrelevant in law does not make it so in life.”

Yet it is also true that diversity-based affirmative action and debt relief were only half measures that left intact a system of higher education that launders privilege, price-gouges vulnerable students, and often fails to provide meaningful opportunity for those at the bottom. There are other, systemic measures—not barred by the Supreme Court’s decisions—that would promote racial equity in higher education and provide access for Americans otherwise unable to attend college.

A 1978 Supreme Court ruling had previously weakened race-based affirmative action by holding that it could not be used to address past societal discrimination, but only to guarantee diversity as an educational ideal. Too often, as a result, affirmative action’s benefits haven’t accrued to poorer students of color. Writing in the Atlantic, Bertrand Cooper estimates from the available data that of 154 Black freshmen in Harvard’s incoming 2020 class, just seven or eight would have come from families earning less than $85,000 per year. While racial diversity is clearly a desirable goal, it should not be conflated with deeper structural reparations. Nor should it be achieved using the methods employed by Harvard admissions officers, who devalued Asian students’ applications using a “personal rating” system.

In some states that had already banned race-based affirmative action, universities saw an immediate and precipitous drop in racial diversity. After a 1996 ballot measure outlawed racial preferences in California, enrollment of Black and Latino students at UC Berkeley and UCLA fell by 40 percent. However, through aggressive recruitment efforts and a holistic review process that takes into account students’ neighborhoods, high schools, and family incomes, the University of California system has admitted its most racially diverse classes in recent years. In 2021, moreover, 45 percent of the system’s incoming students were low-income.

Other universities, including University of Michigan, have been less successful, but a 2012 study “found seven of 10 leading universities were able to return to previous levels of diversity through race-neutral means.” Officials at both University of Michigan and University of California warned of the difficulties and expenses that come with the elimination of race-based affirmative action, but these expenses—for example, retooling admissions processes that favor affluent students and engaging in outreach to local Black and low-income communities—are well worth the money.

At institutions like Harvard, which play a radically inegalitarian role in our society, attention to students’ socioeconomic background would be particularly welcome. At thirty-eight of the country’s most selective colleges, more students come from families in the top 1 percent than from the bottom 60 percent. This is not a reflection of those students’ innate intelligence. Wealthier applicants game the system through legacy networks, expensive test prep, and even participation in upper-crust pastimes like fencing and squash. Graduates of Harvard overwhelmingly pile into lucrative fields like consulting, tech, and finance. What’s more, these institutions accrue massive endowments. In 2014, Yale paid almost $480 million to fund managers and just $170 million in tuition assistance.

Meanwhile, institutions that serve less well-off students—public universities, community colleges, and HBCUs—are struggling. State funding for public colleges and universities has dropped precipitously, resulting in reduced faculty and course offerings, campus closures, and dramatic tuition increases. Without sufficient funding, public colleges increasingly operate more like private ones: overspending on administrators, skimping on faculty and financial aid, and adding amenities to attract affluent students.

The Biden administration’s debt-cancellation program would have provided much-needed relief to borrowers failed by this broken system. The ruling blocking the program relied on a manufactured plaintiff and a dubious conservative legal theory known as the “major questions doctrine.” Biden has promised to forgive debt by other means, but the new strategy will face similar barriers.

Legislation is clearly needed to address root causes. Last month, Sen. Bernie Sanders (I-VT) and Rep. Pramila Jayapal (D-WA) reintroduced a bill that would make community colleges and vocational schools free for all, and public universities and HBCUs free for families in the bottom 80 percent. This “public option” would eliminate the shameful debt piled on millions of young Americans beginning their adult lives. It would open up education pathways to many of those currently shut out of the system, including many students of color. And it would eliminate distorting market pressures. In short, it would help turn education into the public good it should be, instead of the hoarded commodity it now is.