Protecting Privilege

There is very little I can add to the mountains of commentary criticizing or defending the  Supreme Court’s decision to overturn affirmative action in University admissions. I do think it is important, however, to focus on its impact, which will be almost entirely limited to colleges and universities that are considered “elite.” As several analysts have pointed out, the U.S. has somewhere between 3,500 and 5,500 colleges and all but 100 of them admit more than 50% of the students who apply. There are only about 70 that admit fewer than a third of their applicants.

In other words, the schools most Americans attend admit most of the people who apply to them.

The fact that the Court’s ruling will have a limited effect does not, of course, excuse a decision that race cannot be considered, but legacy status, recruited athlete status, and financial aid eligibility—aka  “affirmative action for Whites”– can.

Americans make competing arguments about affirmative action in college admissions: defenders point to the undeniable educational benefits of diversity in the classroom and  the persistent effects of this country’s history of racial injustice; opponents point out that perceptions of favorable treatment diminish recognition of individuals’ accomplishments, and that race is no longer a clear proxy for disadvantage (should a Black doctor’s son who attended cushy private schools have a “leg up” over a poor White applicant?)

The fact that most perceptions about admissions aren’t accurate–I’ve served on admission committees–doesn’t mean they aren’t damaging.

The Court’s decision reminded me of a long-ago discussion with a relative. She was about my age, and we both had sons who were entering college. She was incensed that one of her sons had failed to gain admission to a particular, competitive school (I no longer remember which one), and attributed his rejection to affirmative action. If there wasn’t “favoritism for ‘those people,’ she was absolutely convinced her son (who was actually pretty unimpressive) would have been accepted.

I’ve read bits and pieces of the dissents, and–as a lawyer–find them persuasive. But as we’ve seen with other decisions of this radical Court, nuanced  legal arguments rarely translate accurately into the ensuing political and social debates.

As the months pass, I may revise my current assessment of the impact of this decision, but right now, here’s what I see:

  • People like my relative will be deprived of an argument that they use to justify their (already obvious) racial grievance.
  • America’s changing demographics–a change that has already triggered the nasty expression of overt bigotries–will ensure the continued diversity of the great majority of university classrooms–especially as so many colleges are seeing fewer applicants and experiencing fiscal challenges.
  • The impact of the decision will fall almost entirely on the elite institutions that produce the most privileged members of American society. The Chief Justice’s ruling (aptly described by Justice Jackson as a “let them eat cake” decision) will protect his alma mater and other elite universities from the equalizing effects of a more diverse student body.

The truth is, those elite universities are already experiencing what has been called the “gamification” of admissions. Families with the means to do so have engaged in multiple efforts to assure their offsprings’ success, from coaches to help with essays and SAT preparation, to actual bribes that led to jail terms for some celebrity parents.

What would a fair process look like? After all, the use of race–or legacy status, or athletic prowess, or wealth–is almost always applied to a pool of applicants all of whom are eligible for admission. Arguments about merit are beside the point–these schools get many more applicants who meet or exceed their criteria than they can admit. The issue is: when you have identified 200 students who can clearly do the work, and you have room for only 100, how do you decide which ones to admit?

One of the better suggestions would substitute socio-economic status for race; given the continued structural racism of American society, Blacks should be well represented in an underprivileged cohort. (Letting more poor kids of any color into Harvard and Yale would certainly increase diversity…)

According to survey research, a majority of Americans oppose affirmative action in higher education. Much of that opposition is because people don’t understand how it actually works, but there’s no denying that a lot of it is simple racism and a defense of privilege.

Meanwhile, a rogue Court continues to eviscerate legal precedent, with consequences that will likely extend far beyond the issues of the cases being decided…


  1. As a college professor (now retired), one of my pet peeves is the use of scholarships to recruit athletes – I don’t care what sport, what gender or social, economic, or racial background. My argument is that while so many colleges and departments struggle to advance or even maintain the quality of their courses, the money spent on muscle and/or athletic skill is a waste. Yes, I’m prejudiced because I value intellectual skill over the physical.

  2. My main argument for the use of affirmative action–in any form, not just race-based in education–is that it is not enough to simply say that we’ll be fair from now on. There are too many people with biases that won’t be changing their ideas any time soon. If we just waited for attitudes, equities, biases and prejudices to change naturally, we’d be waiting decades or centuries for the field to even out and become truly fair. We need to _push_ a little in order for change to happen more quickly.

    It reminds me a little of the libertarian position that asserts the criticality of property rights, but also that the starting point for honoring those rights is just _after_ the natives were dispossessed of all their lands. Convenient, that. Or, when the supreme court gutted the voting rights act because–obviously–racism was over. And we saw, immediately, how well that worked out. Hopefully, most educational institutions are more honorable than the various states released from voting law oversight.

  3. Will the return of “separate but equal” be next on the right-wing race back to the 19th century?

  4. “substitute socio-economic status for race” – “Baby Bonds” instead of reparations.

  5. We have already seen clear evidence that “stare decisis” has no meaning in this court. I doubt anyone was surprised by the Affirmative Action decision. More horrifying to me is that the concept of standing now seems irrelevant, as well. The web designer,it seems had not been harmed by the person whose name she apparently picked at random to include in her filing. Turns out, he is a straight, married web designer himself. He was most likely picked because he lives in San Francisco (which means he must be gay, right).

    Not long ago this blog noted the lack of standing in the student loans case. Yesterday I heard that Justice Coney-Barrett had questioned the absence of the harmed entity during oral arguments, but didn’t pursue it.

    These two cases make it clear that this court has decided that they are there to pursue an agenda, not to decide constitutional authority. Just a side note on the student loan case, Congress has conferred authority on the Department of Education to change term, rates, or to forgive debt on student loans. The logic of the majority opinion is truly convoluted in the assertion that the President doesn’t have the authority to forgive.

  6. We are going to France soon to spend a week in Bordeaux with our kids, river cruising. Much of what attracts visitors to that area is elitism in the form of wine worship. To be clear I drink to the lesser gods of wine because I’m cheap but am interested in the people, food, culture, history, and beauty of the area too. And we like our kids a lot also.

    Elite cultures abound in our world now because, like under the old European aristocracy, we have created the modern version of lottery mega winners and losers here and now too and aristocrats love to show off their finery whether in fashion, degrees, yachts, houses, planes, cars, spouses or wine.

    Affirmation action gave us people like Barack and Michelle Obama and that minor avalanche is probably what doomed it.

    It’s a minor loss for the vast majority of us but a major victory for protectionism of white supremacy.

  7. In 1965 LBJ said in a speech at Howard University:

    ”You do not take a person who, for years, has been hobbled by chains and liberate him, bring him up to the starting line of a race and then say, ‘You are free to compete with all the others,’ and still justly believe that you have been completely fair. Thus it is not enough just to open the gates of opportunity.”

    All us white guys forget that we’re 150 laps ahead. Plus, if you choose to ignore the structural racism of our past then you will fail to understand why affirmative action is not taking away from you. It may be taking away your previously automatic privilege, but it’s not diminishing your current standing or opportunities. Since abolition of slavery, the country has struggled to make up for its racist past and we’ve made great strides, but with this supreme court ruling we seem to have take another step backward.

    As I continue to say, we all do better when we ALL do better.

  8. Maybe it is time for the Ivy league universities to lose their elite status. Instead of just assuming that their graduates are more intelligent and qualified for top jobs, we could start ignoring those graduates and focus on the achievements of graduates from public and other private universities.

  9. The supreme Court is is absolutely thumbing its nose at institutional systematic racism.

    To deny that fact, is actually willful delusion on their part. Because not only is institutional or systematic racism alive and well, it’s increasing exponentially not diminishing.

    When a country starts to roll back voting rights laws, and laws that promote equal access to education, healthcare, representation, and even food and shelter, The Battle for equality is already lost.

    Equality is supposed to be a basic human right! It’s supposed to be a civil right in a so-called democratic society. When an activist theocratic SCOTUS fights against what that theocratic mantra actually means, the stench of hypocrisy wafts over this supposed fair and equal American exceptionalism!

    The Declaration of Independence proclaimed among “truths to be self-evident” that “all men are created equal.” They further declared that it was the right of all citizens to enjoy “life, liberty, and the pursuit of happiness.”

    There was around 3 million people in the colonies at the time, half a million of them were slaves. Thomas Jefferson One of the main constructors of said declaration, remained a slave owner throughout his life.

    Why didn’t they convene to form a government after the Constitution was signed? Because government wasn’t meant for every citizen, just the wealthy white slave owners. The Abrahamic religions, The Asians, the Africans, we’re not equal. The white wealthy ruling class used their power mostly for suppression, although an occasional magnanimous bouquet was thrown if it became too inclusionary, we can see how quickly and easily those magnanimous bouquets are tossed in the trash bin.

    The Bill of Rights is just words on a piece of paper. Those words have never translated into action. And this was done intentionally.

  10. As I understand it, “Affirmative Action” was meant to address the history of exclusion within the system of higher
    education. Presumably the result would be a leg up for marginalized populations. From here it looks like that is
    still needed in order to promote the equality we have long said was of so much importance to us as a nation.
    But, the privileged like their privilege,. and they see nothing wrong with owning some privileged judges, and dictating
    just how those folks will rule, directly, or not, like their forebears, who owned their own people.
    And these right-wing judges, belonging to the “right” organizations, made it and make it apparent that they will rule
    according to the tastes of their overlords.

  11. Roberts’ glib inference of there being no racism, so who need AA, reminds of Scalia saying there is no need for election rules because there is no voter suppression. Guess what. Both of these Federalist “justices” (I will no longer capitalize their titles) just handed Jim Crow another victory and added some more grease to the slide back into our racist past.

    I never imagined that we would slide back so quickly.

  12. I just have to say I’m completely upset about these rulings! They are unconstitutional! That web designer lied! Why did the scotus even take that hypothetical case? Because they are illegitimate! Is there anyway to throw out that case? I guess I’m dreaming again.

  13. I am horrified at the way this country I was taught to honor for its commitment to equality for all has turned it’s back on the very principles upon which it was founded-or so we were taught.

  14. “she was absolutely convinced her son (who was actually pretty unimpressive) would have been accepted.” 😂😂😂

  15. I have always been uncomfortable with quotas, since they were used for decades to “keep the Jews out”. I also applied for a job (mid 1970s) where the man interviewing me said he wanted to hire me, but probably couldn’t. I received a rejection letter naming the person hired (Yolanda Johnson, PhD) and the fact the they had rewritten the job from permanent lab tech (assistant) to a two-year post-doctoral slot. I hope she had a well deserved successful career in cancer research. I was able to go on to other pursuits in neuroscience.

    This wasn’t what today’s affirmative action is about, nor has it been for a long time.

    And, as John H pointed out, we can’t just say “let’s be fair from now on”.

    When my brother ran for Michigan Board of Reagents in 1970, I though he had the right idea: a double barreled approach. One concentrating on underrepresented minorities and the other on income alone, offering more opportunities to poor white, often rural, students.

    As I’ve mentioned before, I spent my K-12 years in integrated schools and have the attitude that the more diversity the better.

    I have a suspicion that the Ivy League schools will find a way, through student essays and such, to maintain the progress they have made in diversifying their campuses.

  16. Peggy,

    Liberals didn’t care about “stare decisis” when they spent decades overturning decisions they didn’t like. I find it interesting now they’re worried about stare decisis.

  17. College admissions is a zero sum game. If you are benefitting a certain group because of a race, you are necessarily discriminating against other groups because of their race. There are only so many admission slots.

    What’s wrong with looking at a person’s entire background instead of his or her skin color? A white child who lives in Appalachia whose family lives in poverty is certainly not more privileged than the child of African-American parents who are wealthy and who have been able to afford the best prep schools for that child. So why assume, simply on the basis of skin color, that the former is advantaged and the latter has been disadvantaged and needs a break?

    You are not going to eliminate racial discrimination by discriminating on the basis of race. That has always been the problem with affirmative action.

  18. I am so upset about this Supreme Court opinion. People assume affirmative action elevates poor achieving black students above higher achieving others. Clarence Thomas himself disproves that assumption. He was an excellent student who likely would not have been considered for enrollment in an elite law school without affirmation action.

    He was infuriated then and now that upon graduation from Yale, establishment law firms didn’t come to him – like they did to white students – with lucrative job offers. Despite his excellent grades, he somehow jumped to the unlikely conclusion that this discrimination was due to affirmation action rather than racism.

    I so wish this case would have challenged the greater impact that ‘affirmative action’ for the lower academic grades of college donors’ and alums’ children have had in squeezing out higher achieving students of all colors. Or how about ‘affirmative action’ for athletes with lower grades who are not only enrolled but RECRUITED with room and board, books, fees, and free tennis shoes thrown in to sweeten the free tuition deal they receive? How many more really good students lose out to athletes with worse grades?

    PLEASE don’t tell me that affirmative action for racial minorities is based on other than academic merit when grades matter little or not at all for those with money, connections, or an athletic record.

  19. Impeachment seems the only remedy for members of this rogue court and it seems highly improbable (an understatement, I’m sure), with the scalawags who approved most of the current justices still in the halls of power.

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