Over the years, we’ve reported on numerous challenges to the practice of Affirmative Action — from the cases against the University of Michigan to the University of Texas at Austin to Harvard University. But in spite of many challenges to the practice over the years, we have never once predicted its imminent demise. As our loyal readers know very well, we have a crystal ball at Ivy Coach, one cited on the pages of an Ivy League newspaper and one that is known around the world for its accurate readings. When folks thought Affirmative Action would be done away with at the time of the Michigan case, we said the practice would stand. When even more folks thought Affirmative Action would surely meet its demise at the time of the Texas case, we predicted the practice would stand because Justice Anthony Kennedy, one of the great justices in the history of American jurisprudence, so often seemed to do the right thing. You see, we’ve always suggested that there was a ticking clock on Affirmative Action. But now let us be clear: with the swearing in of Justice Brett Kavanaugh, the practice, as we know it, will meet its demise by 2020.
Justice Kavanaugh Evades Answer on Affirmative Action
Justice Kavanaugh hasn’t offered much in the way of an opinion on the practice of Affirmative Action. As Scott Jaschik reports for “Inside Higher Ed” in a piece entitled “Kavanaugh Evades Questions on Affirmative Action,” “Judge Brett Kavanaugh provided answers to numerous questions from senators about the Supreme Court nominee’s views on many issues, including the policies of many colleges to consider race and ethnicity in admissions. In a series of decisions, the Supreme Court has said that colleges have that right, at least under certain conditions. Kavanaugh, however, did not not endorse those decisions.”
Jaschik continues, “He was asked about his work for President George W. Bush, who opposed the University of Michigan’s policies to consider race in admissions, and whether he supported ‘only race-neutral’ efforts. Kavanaugh’s answer: ‘As a lawyer in the White House, any views I expressed would have been in keeping with trying to advance President Bush’s legal and policy agenda. As a judge and a nominee, your question implicates issues that remain in dispute and that may come before me as a judge. As I discussed at the hearing, and in keeping with nominee precedent, it would be improper for me as a sitting judge and a nominee to comment on cases or issues that might come before me.'”
Affirmative Action Will End But Colleges Will Find Workaround
While Justice Kavanaugh may have evaded offering his opinion on the practice of Affirmative Action, it doesn’t take a Supreme Court scholar like Jeffrey Toobin to know where he stands on the issue. He’s against the use of race as a factor in college admissions decision-making. With his vote, conservatives will have the five necessary votes to bar colleges — even private ones since these schools take government subsidies — from considering race as a factor in admissions. But as confident as we are that Justice Kavanaugh will be the deciding vote in favor of ending Affirmative Action, we’re confident our nation’s elite universities will find a workaround to continue to consider race as a factor in college admissions, so they can continue to boast diverse and inclusive college campuses.
As but one example, ok, the schools won’t be able to ask a student’s ethnicity on the application. A name will still be on that application. Michael Chen. Yes, admissions officers will know Michael’s of Chinese descent. Sunil Gupta. Yes, admissions officers will know Sunil’s of Indian descent. Kathryn Flanagan. Irish. Jacob Schwartz. Jewish. This is not rocket science and at the end of the day, it will still be human beings evaluating these applications — and you bet these human beings will in most cases have a good sense of the applicant’s ethnicity. Whether it’s asked on the application or not.
What do our readers think? Do they agree with our crystal ball? Do they disagree with it? Let us know your thoughts on all things Affirmative Action. We look forward to hearing from you!