STEPHEN DAVIS: Biden admin and DOJ/DOE scramble after SCOTUS strikes down Affirmative Action

The Department of Justice and the Department of Education released joint guidance on how colleges can diversify their student body without directly using race-based affirmative action practices, which were recently struck down by the Supreme Court.

Following SCOTUS’s ruling on affirmative action, the Biden administration lamented the outcome and immediately set out to find new ways to prioritize minority races in college admissions.

“The court has effectively ended affirmative action in college admissions, and I strongly, strongly disagree with the court’s decision,” President Biden said. “What I propose for consideration is a new standard: For colleges to take into account the adversity a student has overcome when selecting among qualified applicants.”

The President’s remarks refer to what some college admission officers have already implemented: adversity scores.

Adversity scores will consider an applicant’s background, and rate them on a form of “disadvantage scale,” to determine how much “adversity” they have overcome throughout their life. If the applicant resides in a low-income zip code and is a first-generation college student or a member of an “underrepresented” community, they will be given a higher score, and thus, a higher likelihood of being accepted.

University of California Davis (UC Davis) School of Medicine, Dr. Mark Henderson explained, “I’d call it class-based affirmative action. Class struggles have a huge overlap with race – that’s how we skirted the issue.” 

“The Court made clear that ‘nothing in [its] opinion should be construed as prohibiting universities from considering an applicant’s discussion of how race affected his or her life, be it through discrimination, inspiration, or otherwise,’” The joint guidance reads. “[U]niversities may continue to . . . (for example) provide opportunities to assess how applicants’ individual backgrounds and attributes—including those related to their race, experiences of racial discrimination, or the racial composition of their neighborhoods and schools—position them to contribute to campus in unique ways.”

In June, the Court ruled 6-3 that race-based admission criteria violate the 14th Amendment’s Equal Protection Clause, but stated that “Nothing prohibits universities from considering an applicant’s discussion of how race affected the applicant’s life, so long as that discussion is concretely tied to a quality of character or unique ability that the particular applicant can contribute to the university.”

To work in the grey area provided by the Supreme Court’s ruling, the federal departments’ guidance explains that institutions are able to consider “any quality or characteristic” of an applicant “such as courage, motivation, or determination, even if the student’s application ties that characteristic to their lived experience with race.”

In a statement to the Associated Press, Attorney General Merrick Garland said that “Ensuring access to higher education for students from different backgrounds is one of the most powerful tools we have to prepare graduates to lead an increasingly diverse nation and make real our country’s promise of opportunity for all.”

When one Asian-American high school student was asked what he thought of the Supreme Court’s ruling on affirmative action, he responded, “I believe that the Supreme Court got this right.”

“I know that everything that happens is not because of something I can’t control, and if I don’t get in, it’s because I could have just worked harder, because I should have studied more, not because of something I cannot change — which is in my race,” he concluded.

This piece first appeared at TPUSA.


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