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Kettering Foundation hosts conversation on Supreme Court’s race-conscious admissions ruling

Stream video from the event below.

The US Supreme Court’s decision against race-conscious admissions does more than upend rules higher education must follow in admissions. It will have an impact on college diversity and democracy itself.

Anticipating this decision, the Kettering Foundation convened its second Kettering Conversations with Democracy Innovators to weigh the consequences. On June 13, Foundation President and CEO Sharon L. Davies moderated a panel in Washington, DC, of three nationally known experts before a live and virtual audience to consider the possible repercussions and alternative options.

The distinguished panelists were Sheryll Cashin, Carmack Waterhouse professor of law, civil rights and social justice at Georgetown Law School; Melissa Murray, Frederick I. and Grace Stokes professor of law at New York University School of Law; and Eduardo Padrón, president emeritus of Miami Dade College. All three panelists correctly predicted the court would rule against race-conscious admissions in the cases of Students for Fair Admissions, Inc. v. President and Fellows of Harvard College and Students for Fair Admissions, Inc. v. University of North Carolina (UNC).

Davies opened the discussion by pointing out that the courts have ruled repeatedly that colleges were free to consider race in admissions, if done carefully. “The common justification is that putting together a richly diverse class and including racial diversity does give educational benefits to all students who attend those schools, yet the Supreme Court is once again poised to decide,” she said.

Murray explained that the legal challenges against the two schools differed. The Harvard case was brought under Title VI of the Civil Rights Act, while the challenge in the UNC case was based upon the Equal Protection Clause of the Fourteenth Amendment. Although both colleges approached race as one of a variety of factors to weigh in admissions, the issue came down to whether the institutions discriminate on the basis of race. “From what I could see at oral argument, this was a court where all nine members seem to be functioning under the view that affirmative action was over. And the real question was, What are we going to do? And what will be permissible going forward?”

Cashin said the cases were the culmination of five decades of conservative resentment, designed to convince Whites that Black civil rights gains have come at their expense. “It’s just the easiest, cheapest politics . . . And meanwhile, at the same time we’ve had that five decades of stoking of racial resentment, we also have had a spike in economic inequality in this country. So that’s the context.”

Davies pointed out that Harvard’s admissions protocol had been considered the gold standard in constructing a constitutionally defensible, race-conscious admissions practice. “If Harvard’s program doesn’t pass muster, then what would be a program that would satisfy the court if the decision comes out that way?” she asked.

“It is purposeful that Harvard is on the hot seat here,” responded Murray. “Not only is it the originator of that idea of academic diversity, it’s a private school.” Other private schools, she said, emulate Harvard. “If Harvard’s wrong, they’re all wrong.”

Davies asked Padrón to comment on the current attacks on diversity in education in his home state of Florida. Among other acts, Florida Governor Ron DeSantis has signed bills outlawing state universities from using state or federal funds to promote, support, or maintain any program involving diversity, equity and inclusion; restricting how race and gender is taught on campus; and requiring that books in school libraries be subject to approval of a specially trained district employee.

Padrón, who was born in Cuba, was blunt. “Our democracy is in big danger. And it’s being attacked like never before. And it’s ironic that these attacks are not from a foreign nation. Our American democracy is being attacked from our own people,” he said. “For me, this is very personal because the same autocratic, fascist-leaning measures, laws, executive actions, for example, that are taking place in Florida where I live are the same reasons why I escaped from my . . . native country in the ’60s. . . . No question, Florida is the epicenter of all of this. But these laws and these executive actions are spreading like fire to many other states.”

Davies noted that similar bills have been proposed in Ohio and more than 20 other states.

If the decision went against Harvard, she asked Murray, “Are there ways without looking directly at race or ethnicity, of putting together a richly diverse class?”

“I think it’s going to require a lot of creativity, a lot of tenacity and a lot of resilience to combat this,” Murray said. One option, she said, is Texas’ race-neutral practice of giving students in the top 10 percent of their high school class automatic admission to a state college.

Cashin agreed. “It’s fair. I think all public universities and states should be thinking about this.” Cashin ticked off other suggestions to encourage diversity, among them, that standardized tests such as the ACT or SAT should be optional or not used at all. “What standardized tests are most predictive of is the wealth of the parents,” she said. Cashin also suggested that colleges scrap merit aid, legacy preferences, and take in more transfer students, making sure to recruit students from community colleges.

Davies closed by asking Padrón what citizens could do at a moment like this. “What can they do not to be complicit in these forces that are undermining our democracy?” Davies asked.

Padrón had three suggestions. “I think we all have an obligation to: number one, be informed; number two, to use the right to vote to elect the representatives that are going to guarantee that we protect those values that are so dear in a democracy; and number three, I think we need to be more involved.”