Suppose that, on the day after the Supreme Court decided Brown v. Board of Education, President Eisenhower had declared that the Court had “walked away from decades of precedent” and that he would not “let this decision be the last word”, had gone on to propose a “new standard” that would keep segregation in place de facto while nominally complying with the Court’s ruling, and had added, in response to a reporter’s question, “This is not a normal court.”
That was the essence of President Biden’s reaction to Students for Fair Admissions v. Harvard, the Court’s latest affirmation of the principles of the Fourteenth Amendment. “We cannot let this decision be the last word. I want to emphasize: We cannot let this decision be the last word.”
What did the President propose as the alternative to the Supreme Court’s “last word”? His tactic for evading the decision is as flimsy as those of the Southern governors in 1954. Here is the Presidential “guidance” for schools that are determined to continue making race a major factor in admissions decisions:
They should not abandon their commitment to ensure student bodies of diverse backgrounds and experience that reflect all of America. What I propose for consideration is a new standard, where colleges take into account the adversity a student has overcome when selecting among qualified applicants. Let’s be clear, under this new standard, just as was true under the earlier standard, students first have to be qualified applicants.
The President defines applicants as “qualified” if they have –
the GPA and test scores to meet the school’s standards. Once that test is met, then adversity should be considered, including students’ lack of financial means, because we know too few students of low-income families, whether in big cities or rural communities, are getting an opportunity to go to college.
That is dim even for a Biden. “Adversity” is a conveniently subjective standard, and there is no obvious reason why those who haven’t been “lucky” enough to experience it ought to be put at a disadvantage. Sometimes obstacles call forth resources of character and lead to extraordinary achievement. (Clarence Thomas, descendant of slaves, born into an impoverished backwater community where English was a foreign language, is a shining example.) But sometimes, sadly, they leave those who undergo them ill-prepared for the challenges of a top-tier university.
A university that gave “adversity” the weight that Harvard gives to membership in a favored minority would make sob stories a valuable asset for applicants. A study of admissions data for Harvard and the University of North Carolina, obtained through discovery in the Students for Fair Admissions case, found that –
At Harvard, the admit rates for typical African American applicants are on average over four times larger than if they had been treated as white. For typical Hispanic applicants the increase is 2.4 times. At UNC, in-state African Americans’ admit rate is over 70% higher. For out-of-state applicants, the increase is more than tenfold.
As a striking example, a student of Asian descent in the top decile academically had a lower chance of admission to Harvard than a black applicant in the fourth-lowest decile.
One may be confident that, were the Biden standard to be adopted, “advisors” of the “Varsity Blues” ilk would soon be helping ambitious parents craft tales of youthful suffering that would make David Copperfield’s childhood seem idyllic.
There would also be an ironic consequence. Another of the cited study’s headline findings was, “At both institutions, racial preferences are larger for those from more advantaged backgrounds.” To the extent that the new regime continued to favor racial minorities, it would push upper- and middle-class children to the back of the admissions queue. The unjustifiable favoritism that they have hitherto enjoyed would turn into an equally unjustifiable handicap.
I presume that college administrators will come up with cleverer work-arounds than Joe Biden’s speech writers. No doubt we are in for a period of “massive resistance” of the kind that greeted Brown. We may hope that the Supreme Court will remain as firm now as it did then.
Note: The original version of this post was written before a transcript of President Biden’s statement was available. I relied on a CBS News report for details. I have now made some not too material revisions.
Further reading: Jonathan Turley, “Biden’s ‘Normal’: The President’s Constitutional Takes are Becoming More Unhinged from History”
Paul Caron, “Legal Education’s Reaction To The Supreme Court's Affirmative Action Decisions”
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