By Charles C. W. Cooke
Friday, June 29, 2023
Yesterday, I wrote:
I am aware that, even if it does,
colleges that want to keep discriminating will probably find a way. Certainly,
Congress can prevent universities from asking applicants their race, or from
instituting quotas, or from publicly admitting that they favor candidates from
one group over another. But it cannot stop admissions offices from signaling
that they will consider the “applicant as a whole,” and from making it
abundantly obvious that an aspirant who begins a cover letter with “as an
immigrant from Ghana” or “as the descendent of slaves” or “as a poor woman from
Appalachia” will benefit from having done so. We are, I suspect, about to see
an onslaught of clandestine resistance from our universities.
But, in today’s decision striking down affirmative
action, the Court made it clear that it would not accept that:
But, despite the dissent’s
assertion to the contrary, universities may not simply establish through
application essays or other means the regime we hold unlawful today. (A
dissenting opinion is generally not the best source of legal advice on how to
comply with the majority opinion.) “[W]hat can- not be done directly cannot be
done indirectly. The Constitution deals with substance, not shadows,” and the
prohibition against racial discrimination is “levelled at the thing, not the
name.” Cummings v. Missouri, 4 Wall. 277, 325 (1867). A benefit to a student
who overcame racial discrimination, for example, must be tied to that student’s
courage and determination. Or a benefit to a student whose heritage or culture
motivated him or her to assume a leadership role or attain a particular goal
must be tied to that student’s unique ability to contribute to the university.
In other words, the student must be treated based on his or her experiences as
an individual—not on the basis of race.
I don’t know if this will be enforceable, but it looks as
if the Court is going to try.
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