Seven Reasons to Welcome the Court’s Coming Ruling in Students for Fair Admissions v. Harvard

When the Supreme Court rules in Students for Fair Admissions v. Harvard, it will surely declare that the use of racial preferences in higher education admissions violates the U.S. Constitution. There is some uncertainty about the precise shape its arguments will take, and their scope, but the basic outcome is clear enough. Here are seven reasons to welcome it from the standpoint of some traditional concerns of Telos.

First, a ruling against race-based affirmative action will diminish the material interests at stake in racial identity politics. It will thereby undercut the racialism that lies at the ideological heart of the liberal managerial establishment. Individual good intentions notwithstanding, the Tories of the managerial class use this insidious set of principles and rhetorical moves to justify their power and to bludgeon the working- and private sector middle classes.

Second, the ruling may enable colleges and universities to overcome the morally degrading culture of lies that the existence of racial preferences has spread throughout higher education, beginning in the elaborate charade that all applicants for admission or employment are judged by common criteria. It will help individual members of those communities to live in truth.

Relatedly, it’s no accident that some of the surveillance organs that higher education institutions deploy today, such as the Protected Identity Harm Program at Stanford (the subject of recent news reports), bear clear resemblances to the totalitarian reporting systems of the former DDR. Neither free speech nor free thought is at issue in the consolidated Harvard and University of North Carolina litigation, but in practice they are matters adjacent to race-based affirmative action. Both racial preference programs and speech-chilling surveillance websites erode the culture of truth on which the battle for civil society in Central and Eastern Europe was fought during the Cold War. Telos of course played a proud intellectual role in support of the dissidents.

Third, the ruling will provide a glimmer of hope that humanities departments may in time be reconstituted in ways that allow them to pursue the true emancipatory potential of humanistic study. Identity politics has turned many humanities (and social science) departments into radical madrassas, training students to become unwitting propagandists in the liberal managerial class war.

Fourth, the ruling may help undercut the force of critical race theory, which is now the main theoretical and historical framework used to justify racial preferences. The name of the movement exploits and makes a mockery of the true critical theory tradition that Telos did much to bring to light in the United States.

Fifth, the ruling will challenge the Democratic Party to build itself on other foundations than the promotion of a system of racial spoils. In time, the party may once again become the representative of the working class and the private sector middle class. Like the recent abortion decision in Dobbs, the ruling will redound to the advantage of the very party that generally opposes it, though the process will be more gradual. Whether or not one is a Democrat, or is even concerned with traditional partisan politics, this will be a good thing.

Sixth, the ruling will result in better social, cultural, and economic outcomes for the very people whom proponents of racial preferences claim to help. Among other benefits, the end of the systematic institutional mismatch for minority students in higher education, evident especially in less elite institutions, will improve graduation rates. By reducing one of the main pressures for grade inflation, it will also help make grades a meaningful signal of performance, which will be helpful for all talented and hardworking students. More broadly, it will reduce the harms that come to communities that are subjects of state managerial authority, which generates a personal and collective powerlessness, as left criticisms of government welfare and its network of social workers have long shown. Yet supporters of racial preferences will profoundly resist acknowledging these realities, forever, because race-based affirmative action in fact serves their class interests.

Finally, the ruling will enhance democracy and, therefore, the legitimacy of liberal government—the most fundamental task for our time, as many recent Telos contributors have made clear. No matter what the precise structure of its argument, the Court’s ruling against racial preferences will complement its decision to send the issue of abortion back into the state political process. This was a positive decision from a democratic standpoint, and from the standpoint of the political, no matter what one’s view about the morality of abortion. In striking a blow against the liberal managerial class, especially in elite educational institutions—which maintain racial preferences in the face of near supermajority public opposition—the decision will find a worthy place within the Court’s democracy-enhancing jurisprudence.

In 1938, the Court laid the foundation for much of this jurisprudence in its celebrated Footnote Four of U.S. v. Carolene Products. The note provided the core legal justification for the Court’s modern suspicion of racial preferences and pointed the way toward Brown v. Board of Education (1954). The Court indicated that it would exercise heightened judicial scrutiny in its review of government action that concerned “discrete and insular minorities” because of the possibility that such action grew from failures in the political process (which, if working appropriately, would provide a sphere in which such groups could vindicate their interests). The United States has witnessed precisely such a political process failure with regard to Asian Americans, who have become drivers of suits opposing racial preferences.

Even more, with regard to the core concern of Footnote Four, we are living today in a mirror image world, at least when it comes to universities. After World War II (that is, after Carolene Products), the United States experienced the consolidation of the university as a corporatist political structure significantly isolated from public control—the seat of the New Class. The Court has encouraged this process, implicitly providing universities with special, protected constitutional status, most notably in their admissions processes. The university has thereby become a new kind of “discrete and insular” institution, cut off from the political process—not one that is politically weak, but rather, tied as it is to the New Class and its needs, one whose very power should now draw the Court’s particular attention and concern.

There can be little doubt that across the nation university presidents are already busily preparing to evade the coming ruling. The historic significance of the decision will thus depend on the level of its state and federal enforcement. This will be difficult as a legal matter because for future suits against recalcitrant colleges and universities to be successful, proof will be required that they have engaged in racial discrimination purposefully. This is very difficult to show.

Expect offenders to try to discriminate on the basis of race surreptitiously through purportedly race-neutral programs with even greater enthusiasm than they already do. Count on them as well to shut down programs entirely to maintain overall institutional outcomes that are “diverse” or “equitable,” to use the Orwellian language of the day. In the 1960s, cities closed public pools rather than see them desegregated; we will shortly witness an analogous set of doleful ruses played out in higher education.

Yet because university middle managers generally live in a bubble of Tory identity politics, there is some hope that they will repeatedly be indiscreet and openly announce the racialist intentions behind their policies, even in recorded Zoom meetings. This will become fodder for lawsuits that, for the public, will be highly instructive.