By: Mark Glennon*
Friday’s decision by the U.S. Supreme Court has consequences far beyond college admissions. While the ruling arose out of affirmative action admissions at Harvard and the University of North Carolina, the strict, new limitations laid down by the Court put countless racial preferences at risk in both the public and private sectors. In fact, the new limitations may be harder to circumvent in areas other than college admissions.
The Court said “eliminating racial discrimination means eliminating all of it.” The Constitution’s Equal Protection Clause applies “without regard to any differences of race, of color, or of nationality”— it is “universal in [its] application,” the court said. Any exceptions must survive a harsh two-step examination known as “strict scrutiny.”
What racial preferences are now suspect? Let’s take some examples in Illinois.
- Start with minority contract preferences such as those maintained by the City of Chicago. Those programs were at high risk of constitutional challenge even before Friday’s ruling, as explained here. Now, they are burnt toast if anybody wants to challenge it in court. Chicago’s program is so aggressive that the only ones not getting preferences are straight white males who aren’t veterans — only about 15% of the city’s population.
- Many elements of private sector DEI efforts are now likely to be challenged. Corporate employers, according to the Wall Street Journal, are saying the ruling “will lead to challenges to internal diversity, equity and inclusion initiatives, many of which were put in place or augmented over the past few years.” From a Bloomberg Law column, “The high court’s decision has set the stage for future challenges to the rationale behind workplace diversity initiatives and increased judicial scrutiny of those programs, attorneys said.” And from left-leaning Politico, “DEI on the ropes.” Concern about private sector DEI programs is not unanimous, however, with some legal opinions differing. Some DEI efforts such as aggressive minority recruiting are not at risk.
- Reparations for slavery also were already at risk of being challenged as discriminatory, but the state has a Reparations Commission at work to consider possible reparations programs. It should stop wasting its time. Evanston, Illinois has received national attention for pioneering a reparations program. Reparations programs arguably aren’t affirmative action and a different legal analysis may be required but, clearly, any program based strictly on race such as reparations is now likely doomed.
- Racial preferences and “equity” have been inserted into everything from tree plantings to public transportation to energy production under the administrations of Lori Lightfoot as Chicago mayor and JB Pritzker as Illinois governor. That’s particularly true of CEJA, Illinois’ clean energy bill targeting net zero emissions. It’s brimming with racial preferences of all sorts described here in detail.
The new Court ruling may be fairly easily circumvented by colleges still wanting to discriminate based on race. They could do that by further downplaying objective factors like test scores and grades, putting more emphasis on things like essays about overcoming discrimination. Colleges have long been expecting Friday’s ruling and many have openly planned how to circumvent it and continue race-based preferences. A further assault on objective measures of merit may therefore be one result of the opinion, at least as to college admissions.
Another approach that could be used for college admissions and hiring would be to shift away from automatic assumptions about race to looking specifically at whether any particular individual was disadvantaged. That would still pick up more racial minorities than others, but would equally help others who’ve faced challenges no less serious. Most of us probably follow that in our daily lives anyway — we give extra points to any underdogs born on the wrong side of the tracks or subjected to unusual hardship. That approach, if implemented honestly, would still be permissible under the Court’s new ruling.
That’s the approach I personally would favor that was endorsed by Barack Obama — before he was president, of course. Today, he and Michelle have joined the progressive chorus slamming the new ruling, which is a subject for another day. Barack had an entirely different story before he became president.
All those alternatives would be difficult or perhaps impossible to apply, however, to preserve racial preferences in other contexts, like those listed above.
It’s a new day for racial preferences of any kind.
*Mark Glennon is founder of Wirepoints.
This column was updated to add the sentence regarding Barack Obama’s position on affirmative action before he became president and the link to this new National Review column on that.
Audio and summary 
If this bill passes, say goodbye to local control over all Illinois parks and expect to see open drug and alcohol use, needles, no sanitation and fire hazards, but no ordinary park users.
I celebrate and applaud this decision not just for me but more importantly for my children.
Nothing could be finer, except a JB exit.
Filthy race hustle roaches are skittering under the sink, as SCOTUS flips on the kitchen lights and sprays down a carpet bomb of bug-spray
Most if not all the elite universities were doing extreme discrimination against whites and asians. Many were only letting in 30% whites even though whites are 70% of the population. I know my children who are white were discriminated against when they applied. That means only 15% of white males got in. Im glad the SCOTUS has stopped the out of control racial discrimination against whites and asians. This is a huge decision for fairness and equality (not equity but equality).
I don’t think the M/F split is 50/50. Females dominate. I’m guessing best case 40/60 M/F. probably more F than that. How many young white males does everyone know that don’t even bother with college since the only college option is a crap college. Not stating that college is for everyone, but doors are shut for many white males.
Funny how similar the reaction to this ruling is from the perpetually aggrieved, from the two on the Supreme Court on down.
When the leftists and racial marxists howl and complain about a ruling is when we know it was the fair and just ruling.
Your thoughts on how this will effect hiring metrics used for police,fire,teachers and all other public sector jobs?
Randy, racial preferences in some of that hiring may be permissible, namely police and perhaps teachers.The Court said it’s permissible only if it passes the “daunting” two-part strict scrutiny test: the racial preferences must 1) serve a compelling governmental interest, and 2) be narrowly tailored to serve that interest. So, hiring minority cops might be okay but the government would have to show evidence that it works and that they targeted that hiring appropriately, Maybe the same claim can be made for teachers. But I can’t see it for firefighters and most other public sector jobs.
Things like common core math will assure they are all equally dumbed down on test day just like the liberals want it. Welcome to your child’s future.
Oh, how we love all those ever worrisome conspiracy theories, and the beauty of it is that they never end! Once a victim always a supposed victim apparently.
So I take it you approve of common core math and the assorted woke classes in the classrooms. Hopefully when you need medical attention someday you will get woke medics
I made no such statement.
Will have to be vigilant this isn’t allowed to happen in IL:
https://threadreaderapp.com/thread/1674459482598825984.html
https://manhattan.institute/article/california-passed-an-anti-affirmative-action-law-and-colleges-ignored-it
Let the lawsuits begin.
If the federal goal is to get black and brown people in college then our elementary and high schools need to prepare them correctly for this step. Unfortunately, we all know that our public schools prepare them for nothing and push them through. I still think the financial aid still is much higher then for whites. I have seen fellow students aid for Pell grants and it was huge when I graduated in the early 90s. Clearly more BIPOC folks are attending more than ever before but these are more than likely a product of 2 parent homes, private schools,… Read more »
You can be certain that colleges will try to ignore this ruling in any way they can. The Illinois AG and the federal DOJ will back them up. The Left is Totalitarian and bigoted. They have no respect for law. In reality the admissions part will effect very few colleges and universities. Most are not that selective in the first place. But there are other implications. Scholarships will be, or at least should be, under careful review. Particularly race based scholarships. Yes, there are many scholarships for Blacks or Hispanics (but try to have one for White males only and… Read more »
They can ignore it at their own peril. The SCOTUS said that it was a constitutional violation of the 14th Amendment, the equal protection, to use race as a factor in allocating the spoils of the university system. This opens up the flood gates of lawsuits to sue universities for violating their civil rights. Imagine suing the University of Illinois for violating your civil rights. It’s more than just the university, each individual admissions officer who looked at your file or made a decision is the potential target of a lawsuit, because they individually violated your civil rights. It’s the… Read more »
I only hope that such lawsuits will be filed and in a massive way.
The democrats/liberals will figure out ways to get around this ruling and continue to chose wrong from right. What needs to happen is severe financial penalties to any entity that picks race over qualifications and denies qualified candidates jobs, promotions etc because they are not the right color, White.
Hit the pocketbooks with personal judgements, fines etc and things may change. Hire, promote, advance, admit based on abilities.
You can be 100% assured that ’24’ presidential election will be about this and student loan SC ruling. And will providing great cover for Biden If we go into recession, which most economists are still beating on.
And you can be 200% that Republicans will roll over again in the ’24’ presidential election. I don’t know who they are more afraid of, the Democrat party or the Republican party. It would be such a relief if each of them would just grow a pair!
The ‘Student Loan Forgiveness’ was a cynical ploy by Democrats to get GenZ and Millennials votes – that’s it. Everyone knew what Biden did was illegal, even Nancy Pelosi. The Democrats don’t want to solve problems – they want campaign issues to dupe voters into voting for them.
How refreshing that your success or failure will now be determined by your abilities and not your skin color or sexual preferences.
Today’s kids, according to public polls, don’t believe in individual merit and blindly stick to their tribal alliances above all else. The believe civilization is a spoils system to be divided among the various tribes. This is articulated in the dissent in the Affirmative Action case on Thursday. As Justice Thomas so eloquently excoriated Justice Jackson, our society shouldn’t be controlled by ‘experts’ who get to decide the ‘perfect mix’ of diversity, which is really just another way of letting the elites divide the spoils among themselves to exclude the white deplorables they don’t like. Which is what they’ve basically… Read more »
„Today’s kids, according to public polls, don’t believe in individual merit”…. 100% true. Social credit among young people is no longer in being the star athlete, best mathematician, etc. You get your social credit based on how sad you are, how much trauma/anxiety you have, or all the different ways in which society has abused you (as in which victim group(s) you belong to). They literally no longer cheer for each other when someone does well. So, ambitious and talented kids are left in the awkward position of pursuing their talents while simultaneously sh*tting on themselves. It’s heartbreaking to watch.
Unfortunately colleges will still find a way to circumvent it, Harvard has already started here:
Harvard To Get Around Affirmative Action Ban By Asking You Whether You Prefer BBQ, Ranch, Or Soy Sauce | Babylon Bee
Also, look for a ton of anti-discrimination law suites by all of those claiming to be passed over in the public sector for racial preferences from public univ admissions, to public sec contracts, to hiring, etc. All resolved on the taxpayers $dime$. With lawyers making GIANT taxpayer $bucks$ litigating the past.
Seems like this ruling shifts the direction back to EQUALITY and away from EQUITY. If so, I say AMEN! This country was founded on the principle of equal opportunities, not equal outcomes. Perhaps an intentional consequence of this ruling will be to end anti-racist discrimination promoted by Ibram X. Kendi. He will finally need to find a real job.
Ibram will get a real job when Stacey Abrams does. Lol
Equity is Marxism based on race
The primary thing this ruling exposed is how much the affirmative action folks resent the success of Asian Americans. To keep the status quo was to believe Asians should be openly and purposely discriminated against. Apparently, the Illinois Dems think that should continue in perpetuity.
Keep in mind that the “Asian problem”, as the elites see it, is a problem they alone created. Democrats/Liberals encouraged massive immigration for a generation. Now we have a society where just 6% of the population – asians – are the most intelligent and highest scoring academically of any ethnic group. These newcomers really messed up the delicately balanced affirmative action we’ve had for generations. And like Democrats have ALWAYS done, the ‘solution’ is always racism. Always, as I’ve always said, Democrats are the party of racism.
Amen. Asians should be livid about the level of discrimination against them. Jews, too, who outperform and therefore get disproportionately harmed by current affirmative action.
Asians and whites are all livid. Living in a system with the scales tipped against them is not the america i grew up in. I gew up in fairness equality and hard work…before the marxists aka democrats took control.
Should a Black graduate from a Detroit public school get preferential treatment over a Black graduate of a selective enrollment school in CPS? Enrollment in SE programs requires smarts but also a little bit of luck which could be deemed as an unfair advantage in admissions.
I’d probably give the Detroit kid an extra point in his favor. If they both showed exactly equal levels of knowledge and achievement based on objective criteria, despite their different schools, I’d go with the Detroit kid.
The essay will break the tie. The furthest left candidate gets rejected. It’s time conservatives retake the university admissions departments and remake the schools in our own image. In theory, we can remake the student population in less than half a decade, as most schools have student turnover every four years. And less commie students can force changes upon communist professors to either cut the commie crap, or go find a job grooming dogs.
Hey Mark, I was a white kid from Detroit. Does that cost me any points?
NOPE! YOU are White and therefore a second class citizen.
You go straight to GULAG for asking dumb question.
More points.
At least at the Federal level, a few good men (and one woman) are still enforcing the constitution. This is something to keep in mind the next presidential election. If you have 2 choices which you equally despise, vote for the GOP candidate simply to protect the supreme court.
The tide has turned – hopefully as a society we begin to approach the ideals of MLK and the law of the Constitution. America has gotten WAY off its tracks. I look forward to the lawsuits to come.
If medical providers are free to deny treatment to unvaccinated individuals in 2022 (after many credible scientific studies were produced (and arguably suppressed)), why then could medical providers not be allowed to deny treatment to any patients who are objectionable by the patients’ personal choices (not, of course, by their non-choice ethnicity-at-birth)? So, medical providers might segregate along party lines: (those PRO Big Government vs. those ANTI Big Government): Illinoisans who favor big government rule should have no trouble finding like-minded medical providers. Those who do not should flee or be able to pay cash for goods and services to… Read more »
I used to think that the movie ‘Idiocracy’ was just that, a silly movie…
Little did I know, it was actually the ‘blueprint’ for the lefts plan to dumb down America…
And within a timeline far shorter than the 500 years in the movie…
I’m forever dumbfounded that people go into massive debt paying colleges to teach them this crap, gender, pedophilia, race based privileges, etc. Russia today is literally the country America was always supposed to become. Their colleges teach hard and useful things.
They go heavily into debt to learn this crap because college isn’t about learning, it’s about credentialing. You pay the gatekeepers – academia – for the credentials, and that opens to the door to the job. Many good paying jobs require a college degree. I have one friend who is a mid-level manager in corporate america but he lacks a college degree. He’s the only person he works with who lacks a college degree, becuase he got his foot in the door decades ago. They wouldn’t even consider his resume today because he lacks the degree. If you want these… Read more »
Between around 1970 and 1984 – the racial achievement gap in terms of academic achievement was closing. If the rate of progress continued, the gap today would be small. After the mid 80’s the gap began to widen again, and this is a source of enormous frustration and indeed obsession on the left. It doesn’t appear affirmative action has closed the gap; some might assert that it has helped create a black middle class, certainly a good thing. My friend – a D! college basketball coach who recruits in urban areas and grew up in Baltimore, has a number of… Read more »
Well said and thanks for that input.