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Looming SCOTUS action on college affirmative action hangs heavy on the schools, American society


“Sometime this month, our nation’s highest court will hand down the latest of its long (although for many, not eagerly) awaited decisions addressing a legal issue at the core of America’s cultural divide.

“This case – more accurately two cases – concern the use of race in admissions programs at colleges and universities.”

That is the informed opinion offered last week by Peter K. Rofes, professor of law at Marquette University Law School.

He is not optimistic. He predicts a “civil disobedience of the American university.”

Of course, Professor Rofes is by no means alone in addressing the potential national impact of these affirmative action decisions.

One of many current alarmed influentials, New York Times columnist David Brooks, has just offered this urgent suggestion: “…maybe we can all take this moment to reimagine the college admission process itself, which has morphed into one of the truly destructive institutions in American society.”

He supports, at length, a proposal to “replace the race-based system of affirmative action with a class-based system… to give preference to applicants from economically disadvantaged families [to] address a core inequality in society.” The proposal appears to be similar to the commonly used “need-based scholarships” which provide financial aid related to family ability to pay.

American colleges and universities have long addressed race in admissions – a tragically divisive, seminal issue – with a broad spectrum of creative policies. For example, The New York Times reports that, “The University of California system seems to have cobbled together a softer version of economically driven affirmative action. By spending about $50 million per year and targeting top students from low-income neighborhoods, the universities have attracted a competitive student body that is economically and ethnically diverse.”

Similarly, creative admission policies such as “first in the family to attend college” scholarships also address the basic issue, as noted in today’s NEWSDAY editorial on the new super generous $500 million gift to Stony Brook University by James and Marian Simon: “In the best first-generation tradition, Stony Brook has attracted many students from immigrant families. More funding and even greater stress on excellence will increase Stony Brook’s reputation as a steppingstone to the American dream.” Big gift to Stony Brook can let it soar – Newsday

[I’m pleased to note that on a much more modest scale, my alma mater, Manhattan College, has just established a “first-to-attend” scholarship in its School of Liberal Arts.}

The current landmark College Affirmative Action Cases –

In “What will the Supreme Court decide in the affirmative action cases?”, last week columnist Ashley Banks presented a succinct summary of these cases:

“Last fall, the Supreme Court heard oral arguments in two cases where Students For Fair Admissions filed suits against the University of North Carolina at Chapel Hill (UNC) and Harvard University, alleging both universities gave Black and Latino students advantages to gaining entry to the universities based on race…

“The lawsuits also alleged that UNC discriminated against both white and Asian Americans and that Harvard discriminated against Asian Americans during the college admissions process.”

A key issue in such cases: Whether race is one of several/many factors or “determinative” in the admission process.

The College Board last year filed an amicus brief in the cases with this summary: “America’s higher education institutions have long recognized and cultivated the educational benefits of diversity. And for over four decades, this court has recognized the essential role that diversity serves in achieving educational missions and outcomes.”

But iconoclast Professor Rofes is not buying a “Cumbia” outcome. In forecasting “a civil disobedience of the American university”, here is his prophesy:

“Later this month, the nation’s highest court will tell the nation’s colleges and universities once and for all to stop perpetuating race-consciousness in their admission programs.

“Do not for a moment believe that the pronouncement will serve to end such race-consciousness.


“Because the resistance to that command – a resistance that will unfold for decades out of view of Americans and those whose collective job is to deliver news to Americans – will be anything but fake..”

(“The views he expresses are his alone and should not be attributed to Marquette University.”)



Let’s hope for a  much more harmonious outcome.



[Update, Monday, June 12, 1PM – In the wake of last week’s potentially far-reaching SCOTUS decision on Alabama Voting rights, a contrasting analysis: “ … for now, it seems that a majority of the court isn’t ready to decree that race can never be a factor in a remedy for a historical wrong.” ]