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Naomi Schoenbaum

Opinion | The Supreme Court Inadvertently Instituted Affirmative Action for White Men

Whatever the merits of affording boys a leg up in admissions, the real-world consequences of the court’s decision are clear. | Charles Krupa/AP Photo

A few weeks ago, the Supreme Court issued one of its end-of-term bangers with Students for Fair Admissions v. President and Fellows of Harvard College. In that ruling, a 6-3 court brought an end to a 45-year-old doctrine permitting the use of race in university admissions to achieve diversity on college campuses. In the wake of the decision, big questions loom large, with heaps of commentary on whether and how colleges might maintain racial diversity in the face of the decision.

Yet in the fallout of the ruling, one of its most backwards consequences has so far gone unnoticed: the primary beneficiaries of affirmative action will now be white men. Seeing why this is so requires taking a step back to look at the law and the on-the-ground facts of college admissions.

The Supreme Court has interpreted the Constitution to apply differently to race-based rules and sex-based rules and to give more leeway to the latter. One key 1996 decision written by Justice Ruth Bader Ginsburg and decided without dissent struck down an all-male admissions policy at a military institute but indicated that the decision would allow sex-based policies in education under the right conditions. So now race and sex have different standing constitutionally: Providing a college admissions preference just on race is now verboten, while providing a preference based on sex is still fair game.

Sex-based preferences can be a good thing. Girls and women continue to be sorely underrepresented in STEM and might need a boost. So too, boys and men are missing from what have been called the HEAL fields, like health and education. Using sex in admissions to address these types of gender imbalances can help to remedy stereotypes that steer men and women into roles based on sex and limit their opportunities.

Yet allowing schools to take account of sex but not race may play out in ways that are far more troubling.

Girls have long outpaced boys in school, earning higher grades and applying to college in larger numbers. This education gender gap has grown quite wide over the past few decades so that today, only about 40 percent of university graduates are men. To attain a gender balance in their classes, many elite colleges use preferences based on sex in admissions. This means it is relatively easier for boys to be admitted to college, and harder for girls.

The most competitive schools, like Harvard, are so in demand that they can maintain gender parity without special measures (although one analysis suggests this may not last forever). Yet for the rung of selective schools just below the Ivy League, boys effectively get a leg up. While data are hard to come by, at many big-name schools like Vanderbilt and Boston College, male applicants were more likely to gain admission than women, even though women apply with better credentials. At Baylor University, where women make up 60 percent of the student body, the admission rate for men is 7 percent higher than it is for women. It is perhaps no coincidence that most of the plaintiffs in the court’s big affirmative action cases in the last 20 years have been women.

The wisdom of giving men a boost in this way is contested. On the one hand, it’s unfair to girls who are penalized rather than rewarded for outperforming boys. On the other, schools may have good reason to prop up men. If a school reaches a too-female “tipping point,” fewer students of both sexes want to enroll. While this self-serving justification may be underlined with misogyny, the interest in gender balance at college could stretch beyond the schools themselves and to society. Because people tend to marry people like themselves, college gender imbalances can have implications for marriage and fertility rates. Perhaps most concerning is that higher education will become so associated with women that attending college itself becomes a sex stereotype.

Whatever the merits of affording boys a leg up in admissions, the real-world consequences of the court’s decision are clear. Without the ability to use race in admissions, a university’s preference for men will often be a preference for white men, as Justice Elena Kagan seemed to appreciate. During oral arguments back in October, she posed this question: “Colleges now, when they apply gender-neutral criteria, get many more women than men. ... Could a university put a thumb on the scales” to “ensure that men continue to be … roughly in the same ballpark?” She made clear that this “thumb on the scale” would often end up being for “white men.” Because Black boys lag white boys in school, the likely result of the court’s decision is exactly as Kagan suggested: an assist to white boys and men.  

It is hard to avoid the upside-down nature of a decision that ends up privileging the very group that has historically been most advantaged. Justice Ketanji Brown Jackson condemned the “perverse” nature of the SFFA decision, which reads a part of the Constitution aimed at correcting racial injustice as barring a policy that does just that. A recent challenge to Harvard’s legacy admissions policy is also premised on the backwards aspect of a decision that bans express accounting of race while permitting consideration of far less worthy traits.

A rule that allows the use of preferences for sex but not race in admissions only compounds these critiques. Kagan, with characteristic sardonic understatement, commented that it “would be peculiar” that “white men get the thumb on the scale, but people who have been kicked in the teeth by our society for centuries do not?”

Perhaps some boys and men deserve additional consideration for disadvantage on the basis of their sex. As Richard Reeves details in his recent book, boys and men are struggling mightily in school. But one cannot speak of the challenges facing white men and Black Americans in the same breath. While diversity and not disadvantage has been the stated reason for race-based affirmative action for decades, the history of race in America has made race-based affirmative action morally acceptable — even required — for those who support it. Preferences for white boys and men cannot stand on this moral ground.

Looking at the decision through the lens of race and sex also shows how the court is “unmoored from critical real-life circumstances,” as Jackson noted. Without the ability to consider race, universities will be hamstrung in their ability to address the gender gap itself. The gender gap in education is in many ways a racialized gender gap. It is Black boys and not boys in general who face the most acute challenges, and the hurdles they face are not simply as men, but as Black men. So too, there may be areas where Black women or other women of color are behind their white sisters. But the Supreme Court’s brake on race-based affirmative action will make it far more difficult to attend to these realities.

Sex-based affirmative action in university admissions has never been tested at the Supreme Court, and the justices may eventually get rid of it, too. What happens will depend a lot on the reasons for the practice and how it is implemented. If a university’s practice credibly claims to fight sex stereotypes, it will be more likely to pass muster; if a university’s practice looks anything like a gender quota, it will face an uphill battle. Another uncertainty is how Title IX, a federal law regulating sex-based rules, applies to the admissions process, something on which courts have said little.

So now we wait for the inevitable challenges to sex-based admissions to be filed. In the meantime, if our universities — and our society — fall further from our ideals of equality, we have the Supreme Court to thank.

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