Jewish groups divided over landmark Supreme Court decision striking down affirmative action

US Supreme Court ruling banning affirmative action in college admissions draws mixed responses from Jewish groups.

By Andrew Bernard, The Algemeiner

The US Supreme Court in a landmark 6-3 decision Thursday ended affirmative action in higher education, outlawing the use of race as a criteria for college admissions.

The case, Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, combined lawsuits against Harvard University and the University of North Carolina arguing that their admissions programs discriminated against Asian applicants in violation of, respectively, Title VI of the 1964 Civil Rights Act and the equal protection clause of the 14th Amendment.

The case divided Jewish groups over whether Harvard’s “holistic” admissions policy, which considered race as one admissions factor among others including the applicant’s personal character and academic achievements, discriminated against Asians in the same way that Harvard discriminated against Jews in the 1920s and 30s.

Kenneth Marcus, founder and chairman of the Louis D. Brandeis Center for Human Rights Under Law, which filed an amicus briefing in the case, told The Algemeiner that “holistic” admissions designed to achieve “diverse” student bodies were deeply rooted in Harvard’s history of antisemitism.

“The whole notion of diversity in higher education was developed with the specific intent to limit the enrollment of Jewish students at Harvard and then later at other highly selective institutions like Yale and Princeton,” Marcus said. “Affirmative action, or the use of racial preferences, has simply been an overlay that has been added to a system in which there are multiple factors that were developed to limit the enrollment of Jews. We have argued before the Supreme Court that these intentionally discriminatory practices have had the effect over time of limiting the enrollment of Asian students at colleges and universities, even though their intent initially was to limit the enrollment of a Jewish students.”

Justice Clarence Thomas in his concurrence cited the history of antisemitism at Harvard.

“Based on de facto quotas that Harvard quietly implemented, the proportion of Jews in Harvard’s freshman class declined from 28% as late as 1925 to just 12% by 1933,” Thomas wrote. “During this same period, Harvard played a prominent role in the eugenics movement. According to then-President Abbott Lawrence Lowell, excluding Jews from Harvard would help maintain admissions opportunities for Gentiles and perpetuate the purity of the Brahmin race—New England’s white, Protestant upper crust.”

The Anti-Defamation League, which had submitted an amicus brief in the case arguing that Harvard’s current admissions system was unrelated to its past discrimination against Jews, said it was disappointed with Thursday’s ruling.

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“This decision reflects a fundamental misunderstanding of the history and present realities of racial discrimination in this country and the reasons why affirmative action is still needed,” ADL senior counsel Steve Freeman said in a statement. “As Justice Sonia Sotomayor noted in her dissent, ‘Equality requires acknowledgement of inequality.’ Based on real-world experience, we continue to believe that diversity enriches the educational experience.”

Chief Justice John Roberts, writing the opinion of the court and joined by the five other conservative justices, found that Harvard and UNC’s programs “cannot be reconciled with the guarantees of the Equal Protection Clause.”

“[The] student must be treated based on his or her experiences as an individual—not on the basis of race,” Roberts wrote. “Many universities have for too long done just the opposite. And in doing so, they have concluded, wrongly, that the touchstone of an individual’s identity is not challenges bested, skills built, or lessons learned but the color of their skin. Our constitutional history does not tolerate that choice.”

Justice Sotomayor in her dissenting opinion said that “diversity is now a fundamental American value” and that college administrators should continue to pursue racial diversity by other means.

“The pursuit of racial diversity will go on,” Sotomayor wrote. “Although the Court has stripped out almost all uses of race in college admissions, universities can and should continue to use all available tools to meet society’s needs for diversity in education. Despite the Court’s unjustified exercise of power, the opinion today will serve only to highlight the Court’s own impotence in the face of an America whose cries for equality resound.”

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Roberts said that universities should assume that such attempts will be struck down in court.

“Despite the dissent’s assertion to the contrary, universities may not simply establish through application essays or other means the regime we hold unlawful today,” Roberts said. “A dissenting opinion is generally not the best source of legal advice on how to comply with the majority opinion.”