Unpacking the Sausage: Let’s take affirmative action a step further

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The Equal Protection Clause of the Fourteenth Amendment provides that no state shall deny any person equal protection of the laws. Any exceptions to the Equal Protection Clause based on race must be narrowly tailored to meet a compelling state interest.

Last week, the Supreme Court of the United States ruled that race-based admissions policies at Harvard and UNC serve goals that are too vague to meet the rigorous tests of strict constitutional scrutiny, and do not have a definite end point. The result is that affirmative action is dead. 

Bre KidmanPrior Supreme Court cases held that affirmative action was permissible where race was used only as a positive in considering a student’s application. This is because race (like religion, national origin, sex, and others — in varying degrees) is a protected class. When an action is based on whether the impacted person is a member of a protected class, the Court sits up a little straighter and starts asking more questions about what they’re trying to accomplish.

Now, the Supreme Court says race can’t be used in college admissions — not even as a positive — because the Court can’t conceive of trying to decisively measure the universities’ goals of having a diverse population of educated people. And because they don’t know when systemic racism will be over so that white people can finally stop stressing about how inconvenient it is. They did seem secure in finding that many educational institutions have “for too long wrongly concluded that the touchstone of an individual’s identity is not challenges bested, skills built, or lessons learned, but the color of their skin,” Chief Justice John Roberts wrote in the majority opinion.

In light of the Supreme Court’s rationale, I think colleges and universities should consider developing a list of new race-neutral admissions policies. That would help further their goals of having a diverse population of educated people without being subject to the logical backbends this Supreme Court calls “strict scrutiny.”

Institutions might even base these on “challenges bested, skills built, or lessons learned.” For example: students whose families don’t speak English at home could be granted preferential status. Or, applicants who’ve had to grit their teeth while an angry stranger went off at them about “you people” could have a boost in their overall application score. Let’s be honest, it would be pretty hard to argue that an applicant who’s looked down the barrel of a cop’s gun and survived hasn’t bested challenges, built skills and learned lessons.

However, there are a wide variety of ways that places of higher learning can diversify their student populations. Applications for admissions could include a question about whether any member of the applicant’s family owns a yacht. (Yacht ownership is not, at time of printing, a protected class.) As such, universities may feel free to discriminate against yacht owners and their family members openly by subtracting several points from the applicant’s overall rating. Similarly, applications might consider negative ranking points if anyone in the applicant’s family has ever owned a home, purchased a luxury car, or attended a political fundraiser.

Since quotas or reserved numbers of seats based on race have been outlawed for years, colleges and universities might take these new race-neutral application procedures a step further by reserving a specific number of seats in each class for students who do not have an immediate family member with a credit score over 700, or for applicants who live in certain gerrymandered electoral districts. For all the concern they showed about how the broadness of race-based affirmative action has the potential to perpetuate stereotypes, I imagine the Supreme Court would be pleased to see such specific parameters.

Of course, institutions could also develop policies forbidding admission to any applicant who is related (by blood or marriage) to a current or former Supreme Court justice. The Supreme Court has only been around for 234 years, so that one would certainly escape the court’s disdain for admissions policies that seek to remedy “an amorphous concept of injury that may be ageless in its reach into the past.” 

I’m just spitballing here, but a few of these could make for a pretty entertaining SCOTUS decision in a few years — assuming the Constitution lasts that long under their watch.

Bre Kidman is an artist, activist, and attorney (in that order), the first openly non-binary person in history to run for the U.S. Senate, and the co-executive director of MaineTransNet. They would be delighted to hear your thoughts on the political industrial complex at [email protected].

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