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.