Diversity Won’t Be Defeated, No Matter What The Supreme Court Says

Some thoughts on the Harvard & UNC cases on college admissions

The pair of Supreme Court cases scrutinizing the admissions programs at Harvard and UNC Chapel Hill have special personal resonance for me.

I spent my formative years at Harvard, first as an undergrad and then as law student. I met my wife there and many of my closest friends. I know I had huge advantages over most American high school students to gain admission there due to the circumstances of my birth. Two Harvard degrees opened many doors for me that are permanently closed for many or require exceptional fortitude to burst through. To my mind, it is imperative that this life-changing opportunity is made available to a wider-range of the American public than those who had the life advantages that I did.

UNC is the cornerstone of my adopted hometown of Chapel Hill.  It is a fabulous public university. I had the honor of a joint appointment to teach there for about 10 years and sometimes I would teach at Duke in the morning and UNC in the afternoon. The UNC students I taught were equally exceptional to those at Duke but often chose UNC-CH because in-state tuition and fees are about 1/6th the cost (9K compared to 62K at Duke in 2022-23). Much like Harvard, a degree from UNC Chapel Hill propels a young person’s earning potential and is a ticket into the elite echelons of society, especially in North Carolina. Our state is a bit over 20% Black. It is unthinkable that the most visible and most important institution in our state would fail to reflect this demography.

It is against this background that I am absorbing news of the Supreme Court oral arguments Tuesday in challenges to these schools’ admissions policies on the ground that they violate the “equal protection of the law” by considering race as one of many factors in assembling their class of admitted students. The only constitutional system for admissions, the challengers argue, is one that does not consider racial factors at all, but rather relies on “objective” criteria like grades or test scores that will allocate spaces in universities based on a sense of deservedness or “merit.” It is sad but not surprising that the current Court majority appears poised to strike down the ways that Harvard and UNC use the admissions process to create a diverse incoming class of students.

Questions about the use of race in college admissions have been with us for many decades. I still recall debating “affirmative action” and the Bakke case when I was 13 years old in 1976. I am not going to attempt to cover in this post all the issues regarding the wisdom or legality of affirmative action or the concept of so-called “reverse discrimination.” But I do have a couple of observations about the moment we find ourselves in with the Court poised to rule against Harvard and UNC:

First, the timing of these cases is strikingly anachronistic. The idea that America is a color-blind society – the ethic that drives the litigants – has always been at odds with 400 years of American history but is particularly out of place in 2022.  Is it possible to have lived through the past 15 years and not understand that race continues to cleave our society, continues to be America’s raw, unhealed wound, and continues to be the defining issue of our perilous times? Yes, Obama was elected and re-elected. But the race-animus that rose to the surface of American society in response to his election was palpable, visceral, and pervasive. And the Trump years? Fomenting racial, ethnic, and religious division was the touchstone of his presidency. He not only voiced these sentiments directly from the White House, but intentionally reversed the norm of civility that had governed discussion of race in America for decades, giving his supporters tacit permission to voice and act upon their longstanding and deeply held prejudicial views. And then of course there was the pandemic, exposing with unmistakable clarity the gaping inequality in America, during which we sent people of color out to perform their “essential services” without any protection from the deadly virus, only to see them streaming into our emergency rooms gasping for air, giving new and even deeper meaning to Eric Garner’s final words “I can’t breathe.” We live in a deeply race-conscious society. We live in a society with institutions, systems of governance, and even physical infrastructure that resulted from and continue to reflect racial hierarchy and subordination. Bromides from the Court about the virtues of color-blindness will suggest the justices are issuing highly consequential rulings with their heads embedded deeply in the sand. 

Second, it is stunning that of all the unfairness and inequality in our society, it is admission policies that aid historically discriminated against populations that have drawn the attention of the Court as the grave injustice of our times. We had two and a half centuries of slavery in the United States followed by a century of brutal Jim Crow segregation. Civil rights legislation of the 1960s merely began the process of providing equal opportunity for people of color in education, voting, employment, and housing, but did precious little do dismantle the systems of oppression that had been built into virtually every aspect of American society. And it shows. Sixty-eight years after Brown v. Board, our public schools are both separate AND unequal, disadvantaging people of color right from the start of their lives. We still have massive segregation in housing caused by pervasive redlining by banks and mortgage companies. This segregation has resulted in lower earnings, worse health outcomes, higher levels of crime, and worse environmental pollution for people of color than their white counterparts living in the same cities. Our elite universities to which the Court has turned its attention were bastions of whiteness for centuries. Harvard was founded in 1636 and did not admit its first Black student until 1847. UNC was founded in 1789, but did not admit its first Black undergraduate until 1955. There were only 18 black freshmen at UNC in 1963. That was only 60 years ago. It has only been in the past few decades that the composition of these universities have begun to resemble the make-up of American society as a whole. If the years since slavery were a baseball game, only one inning of the game has been played in the period after the civil rights era outlawed overt state and private discrimination. By any fair measure, the racial wounds of the past have only started to be addressed. We have a Court that is far too impatient to abandon the drive towards a more decent, equitable, and inclusive society. And the grave injustice that is being remedied?  Apparently, it is protecting a white or Asian student from having to go to their second or third choice school instead of Harvard or UNC. This is difficult to fathom.

My final observation is that even if the Court bars certain forms of race-conscious decision making, I have confidence that the drive to create a more diverse society will continue and prevail. The ethic of diversity has taken root in America. It is not just in academia. Corporate America knows it too. And corporations are not just being “woke.” Watch TV for a while – businesses are paying good money for commercials that appeal to a diverse audience. This cultural ethic will only grow stronger as the generation that grew up in the Obama era and went to march in the streets after the murder of George Floyd matures and gains positions of authority. Harvard is not going back to the days where 90-95% percent of the students came from privileged white families. Since there is no ideal “fair” way to allocate 2000 spots at Harvard among the 60,000 (mostly very well qualified) applicants, Harvard will have the flexibility to comply with the whatever dictates the Court commands but still select a highly diverse matriculating class. 

As a public institution, UNC is subject to political pressure, so it may face more challenges in this regard than Harvard. But it is worth pointing out that while many Republican legislators in North Carolina may oppose the use of race in admissions decisions, representatives of poor rural areas might not want to see UNC returning to a system that allocates spots at the university based exclusively on SAT scores either. Many alumni, faculty and current students will impose pressure on UNC to continue advancing the ethic of diversity. UNC’s most famous alumnus has deep felt views on this topic – so perhaps his Airness would weigh in on the issue as well. A loss in the Supreme Court may pose a temporary hurdle for UNC.  But in the end, I don’t think it is possible for even the powerful Court to halt the inexorable drive towards greater equity and diversity at UNC, Harvard or any other important institution in America.