will the Supreme Court put an end to positive discrimination in universities?

2:00 p.m., October 30, 2022

It’s a story that borders on harassment. But supporters of Edward Blum will rather speak of perseverance. Since the Supreme Court in 1978 allowed American universities to rely on the 14th Amendment to the Constitution to establish “preferential policies” for student selection, Edward Blum, a former stockbroker turned ultra-conservative activist, has been went seven times before the judges of the highest judicial body to ask that theaffirmative action (positive discrimination) be declared unconstitutional.
Tomorrow, eight of the nine “wise men” will begin to hear the arguments of the parties. Two institutions are targeted by Edward Blum, the prestigious Harvard, known throughout the world, and the University of North Carolina. The ninth judge, Ketanji Brown Jackson, the first black woman to serve on the court after being nominated by Joe Biden, recused herself because she was a member of Harvard’s board of supervisors. Given the political affiliation of the other eight magistrates – six conservatives for two progressives – it is very likely that the Court will decide next June to put an end to positive discrimination.

A decision that would be “catastrophic”

“Such a decision would be catastrophic for the presence of marginalized racial groups on the most prominent campuses in our country”, wrote this week in the New York Times the African-American Justin Driver, one of the most brilliant professors of constitutional law, former contributor to the famous Harvard Law Review, which in his time was directed by a certain Barack Obama. In its pleadings, Harvard lawyers believe that “education is one of the keystones of building a society” and that an ethnically diverse campus can only “prepare well” students at a “increasingly diverse labor market”. In short, positive discrimination, without resorting to quotas, is ” essential “ to its educational mission. Edward Blum – and the lawyers who act on behalf of the 20,000 members of the Student Association for Fair Admissions founded in 2014 – argue instead that favoring the enrollment of black or Latino students discriminates against other groups such as Asians. . He adds, cynically, that the landmark Supreme Court decision Brown v. Board of Education in 1954, aiming to end racial discrimination in schools, decreed that the skin color of students should no longer be taken into account.
According to statistics that vary from state to state, more than 40% of American universities and more than 60% of the most selective of them practice today theaffirmative action. Beyond granting more and more scholarships, this policy often consists of admitting students who come from the most disadvantaged sectors of society, starting with the black community, and who have lower grades in the higher than the average at the end of secondary education than their peers from more financially well-off backgrounds. Edward Blum concludes that it is four times more difficult for an Asian to be admitted to Harvard than for a Black. To which the university replies that Asians constitute, depending on the year, between 20 and 25% of its students, whereas their proportion within the general American population is 5%.

Affirmative action retained until 2028?

It is not for nothing that Edward Blum is on the attack again. “The context is favorable thanks to the three judges appointed by Trump after being carefully shortlisted by the Federalist Society”, says Anne Deysine, the French expert of the Supreme Court and American institutions. Allusion to this organization of conservative jurists for whom the Constitution must be interpreted in its original version without taking into account the progress and evolution of society. “They were chosen for their consistent positions on such sensitive issues as abortion,affirmative action and the right to voteshe specifies before admitting that it is nevertheless possible that the judges are sensitive to the arguments of third parties sent to the Court and hostile to the request of Edward Blum. “These are numerous petitions, filed in particular by the army, which has already expressed its concern, as well as by large companies which could be affected in their recruitment by the decision of the judges”, adds Anne Deysine. According to a recent investigation by the Military Times, 35 of the highest ranking members of the American army, including 22 four-star generals and admirals, as well as four former chiefs of staff have sent such a petition to the Court asking it to preserve theaffirmative action. For them, an army that does not reflect the diversity of society, including in its leadership, can become ineffective on the battlefield.
One of Justin Driver’s hopes is that the Supreme Court will also consider what conservative Justice Sandra Day O’Connor said in 2003 after she and her peers refused to ban affirmative action. “I hope that, in twenty-five years, this preferential policy will no longer be necessary”, she had formulated. Taken at face value, this wish, if followed reasonably by judges well aware that racism and inequality have not disappeared, could lead theaffirmative action to last until 2028. But it is in this political context of polarization of society that these same judges will once again have to express themselves on the validity of the protection granted to minorities in the exercise of their right to vote. . A parallel subject but just as explosive.

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