What America will lose, now that affirmative action is effectively gone.
The Supreme Court’s much-anticipated affirmative action decision Thursday does not explicitly overrule the Court’s previous decisions permitting race-conscious university admissions, but it will almost certainly have the same effect as a total ban.
And that will “impair the military’s ability to maintain diverse leadership, and thereby seriously undermine its institutional legitimacy and operational effectiveness.”
Those are not my words. That’s the view that a long list of former generals, admirals, and other senior national security officials laid out in a brief they filed when the case, Students for Fair Admissions v. President and Fellows of Harvard College, was being considered. That brief urged the justices not to end affirmative action in university admissions. And they are hardly the only ones to offer such a warning.
Despite those warnings, six justices decided Thursday to effectively end race-conscious university admissions in a pair of cases considering Harvard and the University of North Carolina’s affirmative action programs.
The Court’s decision is somewhat confusing, because it purports to simply apply past decisions that permitted some affirmative action programs, rather than explicitly overruling them. But the practical effect of the Harvard decision is that it bans the very kind of affirmative action that the Court has endorsed in the past.
Chief Justice John Roberts’s opinion for the Court’s six Republican appointees faults the two universities for having affirmative action programs that “lack sufficiently focused and measurable objectives warranting the use of race.” But there’s an obvious reason why they do not. The Court’s previous decisions permitted some limited forms of affirmative action, but they explicitly ban racial quotas and other mathematical formulas that could allow universities to determine whether they are achieving “focused and measurable objectives warranting the use of race.”
The Harvard case, in other words, is rooted in a Catch-22. Universities may neither have mathematically precise programs that violate the Court’s earlier decisions, nor may they have the more vaguely defined programs that the Court prohibits in its newest decision.
I wish that the Court had shown more humility instead.
To appeal to diverse markets, the business brief argues, major employers need “university admissions programs that lead to graduates educated in racially and ethnically diverse environments.” “Only in this way,” their brief emphasizes, “can America produce a pipeline of highly qualified future workers and business leaders prepared to meet the needs of the modern economy and workforce.”
And then there’s the medical profession’s brief. This brief, filed on behalf of a wide range of medical organizations including the American Medical Association itself, argues that “an overwhelming body of scientific research compiled over decades confirms” that “diversity literally saves lives by ensuring that the Nation’s increasingly diverse population will be served by healthcare professionals competent to meet its needs.”
Because of the Supreme Court’s decision in Harvard, the medical profession warned the justices, more people will die who otherwise would have lived.
The Supreme Court, or rather the six justices appointed by Republican presidents, decided on Thursday to ignore the combined wisdom of many of the military’s seniormost former leaders, the shared wisdom of dozens of America’s greatest businesses, and the combined insights of the medical profession — not to mention the views of two of America’s greatest universities, both of which believed that students who are educated on more diverse campuses receive an inherently superior education that better prepares them for careers in business, medicine, the military, or elsewhere.
Policymakers of all kinds have struggled since the Civil War with how to implement the 14th Amendment’s promise that no one shall be denied “the equal protection of the laws.” And, while it is certainly the job of the Supreme Court to interpret the Constitution, past justices have historically tempered their personal views about how to read constitutional safeguards against race discrimination with the expertise of senior military leaders, business titans, university officials, and others who’ve studied the benefits of racial diversity far more closely than a judge ever could.
