Could liberal states hinder affirmative action implementation? History indicates yes.

News Analysis

The Battle Over Affirmative Action

The Supreme Court recently made a ruling declaring affirmative action unconstitutional. However, the implementation of this decision may face obstacles from liberal states and institutions. History has shown that they have found ways to circumvent such rulings in the past.

GianCarlo Canaparo, a senior legal fellow at The Heritage Foundation, predicts that colleges and universities will try to bypass the decision by using a race-neutral standard to achieve racial diversity. They may give preferences to applicants from certain zip codes or high schools with a higher population of black and Hispanic students, while disadvantaging those from zip codes with more Asian and white populations. Although this is still prohibited by the Supreme Court decision, it may be difficult to catch universities if they discriminate subtly.

Following the Supreme Court ruling, the State University of New York (SUNY) defended affirmative action, stating that it has enriched their institutions and the nation as a whole. California Governor Gavin Newsom also expressed his commitment to diversity and equal opportunity, emphasizing that the California Dream remains intact. Similarly, Illinois Governor J.B. Pritzker affirmed the state’s policy of promoting minority students in colleges and universities.

Challenges to the Supreme Court Decision

Legal experts have raised concerns about the ambiguity of the Supreme Court decision. It did not explicitly state whether it overturned the 1978 case of Regents of the University of California v. Baake, which established the test for considering race in college admissions. Howard Slugh, an attorney, and Josh Blackman, a professor, believe that universities will try to find ways around the ruling, such as using “diversity statements” and interpreting application essays in a certain way. David Bernstein, a constitutional law professor, suggests that some state universities may admit students based on their class rank or eliminate standardized test scores to increase diversity.

Other Recent Rulings

Apart from the affirmative action decision, there are other recent rulings that states and higher education institutions may try to circumvent. For example, in a case involving a website designer who declined to provide services for a same-sex wedding, the Supreme Court ruled in favor of the designer. However, there may be continued legal battles regarding the boundaries of expressive conduct in similar cases. Additionally, the Biden administration’s approach to student loan debt is already facing attempts to find workarounds.