The End of Affirmative Action?

Though long expected, the Supreme Court decision barring affirmative action in college admissions still hit hard when it landed. Much of the response was emotional. “Today is a hard day,” incoming Harvard President Claudine Gay wrote in an email to affiliates, “and if you are feeling the gravity of that, I want you to know you’re not alone.” (The decision, in a case brought specifically against Harvard and the University of North Carolina, applies widely in higher education, though a footnote in the decision seemed to exempt the military academies.)

Many promised that despite the loss of affirmative action as a tool, racial diversity would continue as a goal for admissions—and society. In a separate statement, Gay’s predecessor Lawrence Bacow, whose term as Harvard president ends July 1, “reaffirm[ed] the fundamental principle that deep and transformative teaching, learning, and research depend upon a community comprising people of many backgrounds, perspectives, and lived experiences” and pledged that the school would spend the next few months determining “how to preserve, consistent with the Court’s new precedent, our essential values.”

Gay is Harvard’s first Black and second female president—the child of Haitian immigrants, she was previously dean of the faculty—and Bacow, as he has often discussed, is not just Jewish but the child of parents who survived Auschwitz. The united front of their combined statements—echoed elsewhere in higher education and also by a range of politicians, including President Biden—belies the complexity with which the Jewish community, in particular, has responded to affirmative action when it relates to higher education, especially the super-elite precincts of the Ivy League. While most liberal Jews have long been vocal supporters of affirmative action, the issue was also one of the first to split the community along what are now familiar left-right lines. For a segment of conservative-leaning Jews starting in the 1970s, affirmative action as practiced for the benefit of African Americans brought back uncomfortable memories of the quotas that imposed a harsh ceiling on Jewish enrollment in Ivy League schools from the 1920s through the 1950s. This was certainly the case for Edward Blum, the lawyer who brought today’s cases on behalf of a group called Students for Fair Admissions, claiming that the schools’ use of racial preferences for some groups led to discrimination against others, specifically whites and Asians. Harvard’s past history of antisemitic quotas was repeatedly invoked in Blum’s brief and in the decision. (My colleague Ella Marx notes 83 mentions of the word “Jew” or “Jewish,” in a brief ostensibly about discrimination against Asians.)

This is not Blum’s first successful court challenge against measures that benefit African Americans. A 2018 article in Moment about voter fraud took note of Blum’s long career opposing various measures intended to combat racial inequality, including Shelby County v. Holder, the case in which the Supreme Court reversed a key provision of the Voting Rights Act, and Fisher v. Texas, an earlier case that also sought to overturn affirmative action. As that piece noted, the presence of Jewish activists on both sides of these issues went against many people’s perceptions of Jewish politics and values—proof, if you will, that diversity cuts both ways.

Indeed, the word “diversity” has become something of a Rorschach test within the Jewish community. Many on the right these days routinely fulminate against “diversity, equity and inclusion” programs, sometimes going so far as to suggest that such efforts are a zero-sum game in which Jews can only be the victims. That argument falls apart if you look at it closely, but emotions don’t always respond to logic. In this new and more punishing constitutional landscape, the long-standing solidarity of Jews with other minority groups—now more important than ever—will continue to be tested.