If the Supreme Court insists on “color blindness” in admissions, Nicholas Lemann writes, that would surely invite further legal challenges to diversity programs in every other area of American life.
took the case because it wanted to affirm the lower courts’ rulings. The second case, a suit against the University of North Carolina, was similarly unsuccessful in federal district court. The Supreme Court took the highly unusual measure of short-circuiting the next step, an appeal to the Fourth Circuit—instead bringing it directly to Washington and pairing it with the Harvard case.
that have permitted the use of race as a plus factor in admissions. These have been close decisions, made on narrow grounds, usually with a moderate conservative Justice holding the balance of power. Now there are no moderate conservatives on the Supreme Court. Assuming that President Biden will have succeeded in getting a successor toseated before the Court hears the case, we can expect a strongly worded 6–3 decision insisting on “color blindness” in admissions, full stop.
The idea that, at some point in the past, the country had a broad racial consensus that it abandoned with the advent of affirmative action is a mirage. Every step of racial progress has been intensely controversial: emancipation, the passage of the post-Civil War constitutional amendments, the Supreme Court’s landmark decisions, the civil-rights legislation of the sixties. And every one remained controversial, the object of intense nullification campaigns, after it became law.
It’s ironic that two of these landmarks, the Fourteenth Amendment and the 1964 Civil Rights Act—which were understood as they were enacted, by their proponents and their opponents alike, as being aimed at African American progress—have been, for half a century, and are now again the basis for legal challenges to affirmative action.
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