President of The Fund for Leadership, Equity, Access and Diversity (LEAD Fund) Asserts the Supreme Court’s Affirmative Action Decision May Inspire the Next Civil Rights Movement

Despite “This Far and No Further” message of the Supreme Court, Wilcher Urges Academic Institutions to Use Creative Strategies to Prepare the Next Generation of Leaders

For Immediate Release: July 7, 2023

Media Contact:  Shirley J. Wilcher 240-893-9475; 202-349-9855  shirleyj@leadfund.org; executive@aaaed.org

Washington, DC – July 7, 2023.  Op Ed. 

Students for Fair Admissions v. Harvard and UNC: “This Far You May Come and No Further”

One of the adages Professor Derrick Bell used in his constitutional law class at Harvard was the biblical passage found in Job 38:11: “This far and no further.” What I believe Professor Bell was alluding to was not the power of the Almighty, but the determination that the racially privileged will always work to maintain the status quo.  The Students for Fair Admissions, Inc. v. President and Fellows of Harvard and the University of North Carolina decision is a declaration by Chief Justice John Roberts’ Supreme Court that diversity has its limits and thus far may it go to usher underrepresented students of color onto the pathway of leadership and power in America.

For 45 years since the Bakke decision, the Supreme Court has held that diversity in admissions was a compelling interest under the Constitution. In the Grutter decision of 2003, Justice Sandra Day O’Connor wrote: “These benefits [of diversity] are not theoretical but real, as major American businesses have made clear that the skills needed in today’s increasingly global marketplace can only be developed through exposure to widely diverse people, cultures, ideas, and viewpoints.”[1]  Companies including Apple, General Electric, META and Intel have forcefully advised in their amici briefs that they need diverse, well-educated college graduates to serve a diverse consumer base.[2]

Instead of clearly affirming the principle that diversity is a compelling interest under the Constitution, Justice Roberts wrote for the 6-3 majority that this compelling interest is no longer measurable to survive the strict scrutiny analysis. He added that race-based admissions programs operate as a stereotype, and that the universities’ admissions programs lack a “logical end point.”  He added: “College admissions are zero sum, and a benefit provided to some applicants but not to others necessarily advantages the former at the expense of the latter.”[3]  Justice Roberts is effectively suggesting that if you add one Black student to the student body, you are taking away from White or Asian-American students, who collectively constitute a majority of the student body at Harvard.  Justice Sotomayor was appalled at such a conclusion: “Nothing in the Fourteenth Amendment or its history supports the Court’s shocking proposition, which echoes arguments made by opponents of Reconstruction-era laws and this Court’s decision in Brown.”[4]  Moreover, what Justice Roberts failed to acknowledge is that by adding a privileged White son of a donor, you are taking away from talented Black or Hispanic students.”

In addition, requiring a numerosity test to measure the goal of training future leaders is also facially illogical. Institutions who attempt to do so would be criticized as using quotas and racial balancing. The “stereotyping” trope is also old and, in my view, is based on racial assumptions about the abilities of Black and Latino students. Moreover, one has to question whether beneficiaries of preferences for legacy admits, children of financial benefactors, et al., feel stereotyped or stigmatized. I think not.[5]

Lastly, the 25-year aspirational goal espoused by Justice O’Connor in Grutter was just that, a hope not a reality.  Twenty-five years is not enough and invoking Dr. Martin Luther King’s “content of character” maxim as former Vice President Pence uttered on CBS Face the Nation (July 2, 2023) will not suffice.  

The only exception in the decision is that students can refer to their race in their college essays.  How colleges will be able to use that information is not clear.

I can only conclude that Professor Bell’s quote of “This far and no further” was prescient, and if he were alive today, he would say “I told you so.”  The Court was willing to overlook factors used by colleges to ensure that children of privileged families continue to have an advantage.”[6] The only factor the Court had an issue with was race.

Despite this blow to diversity in admissions, I believe the academic community will find solutions and the civil rights movement has not come to a close. Thanks to this Supreme Court, the new civil rights movement may have begun.

[1] Grutter v. Bollinger, 539 U.S. 306 (2003) (O’Connor, J.) https://caselaw.findlaw.com/court/us-supreme-court/539/306.html

[2] Students for Fair Admissions v. President and Fellows of Harvard College and Students for Fair Admissions v. University of North Carolina, Brief for American Business Enterprises as Amici Curiae Supporting Respondents, https://www.supremecourt.gov/DocketPDF/20/20-1199/232357/20220801135424028_Nos.%2020-1199%2021-707%20-%20Brief%20for%20Major%20American%20Business%20Enterprises%20Supporting%20Respondents.pdf 

[3] Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, https://www.supremecourt.gov/opinions/22pdf/20-1199_hgdj.pdf

[4] Id at 46.

[5] CNN, Michael Kinsley, “How affirmative action helped George W.”, Jan. 20, 2003,  https://www.cnn.com/2003/ALLPOLITICS/01/20/timep.affirm.action.tm/

[6] SFFA, Dissent of Justice Sotomayor, at 44.