Like many in higher education, Kevin J. McMahon, John R. Reitemeyer Professor of Political Science at Trinity College, was not surprised by the Supreme Court decision striking down the use of race and ethnicity as considerations during the college admissions process. Unlike most others, McMahon is both an expert on the use of race in educational systems and on the Supreme Court.
McMahon’s first book, Reconsidering Roosevelt on Race: How the Presidency Paved the Road to Brown, won the American Political Science Association’s Richard E. Neustadt Award for the best book published that year on the American presidency. In 2014, the Supreme Court Historical Society selected his book, Nixon’s Court: His Challenge to Judicial Liberalism and Its Political Consequences for its rarely-awarded Erwin N. Griswold Book Prize. Nixon’s Court was also selected as a 2012 CHOICE Outstanding Academic Title.
In 2024, the University of Chicago Press will publish McMahon’s next tome, A Supreme Court Unlike Any Other: The Deepening Divide Between the Justices and the People, about the political construction of the current Supreme Court.
While we all know the decision that was handed down, less clear is its impact on the process of college admissions. Can you describe what you know based on your reading of the decision?
Colleges and universities will no longer be able to use race in the application process. However, students may highlight race in their applications, most likely in their essays. Here are the key sentences in Chief Justice Roberts’ majority opinion:
“At the same time, as all parties agree, nothing in this opinion should be construed as prohibiting universities from considering an applicant’s discussion of how race affected his or her life, be it through discrimination, inspiration, or otherwise.”
“A benefit to a student who overcame racial discrimination, for example, must be tied to that student’s courage and determination. Or a benefit to a student whose heritage or culture motivated him or her to assume a leadership role or attain a particular goal must be tied to that student’s unique ability to contribute to the university. In other words, the student must be treated based on his or her experiences as an individual—not on the basis of race.”
How does this fit into the context of the Supreme Court’s past rulings on admissions?
It doesn’t. The Court’s decision clearly rejects past rulings. The Court majority rejected the diversity rationale from the Bakke case that had previously been a legal centerpiece of affirmative action programs. [Regents of the University of California v. Bakke was a 1978 decision that upheld affirmative action, allowing race to be one of several factors in college admission policy.]
Could this decision be changed or modified by future cases?
It’s possible, but highly unlikely given the current makeup of the Court. It’s also highly unlikely the Court’s conservative majority will significantly change in the near future. My forthcoming book will explore the political construction of the current Supreme Court.
In her dissent, Justice Sonia Sotomayor wrote that it is “a disturbing feature of today’s decision that the Court does not even attempt to make the extraordinary showing required to reverse precedent.” Do you agree?
I suppose she’s correct in saying this, but I’m not sure how significant it is. Conservatives have the numbers and they can craft the decisions as they so choose; that’s the result of Republican presidents choosing six of the nine sitting justices, despite the fact that Republicans have only won the popular vote once in the last eight presidential elections.
The backlash to this decision was swift and widespread in the higher education community. Any response from the legal community?
This was a widely expected decision, so it was hardly a surprise to the legal community. For me, the more interesting response will be in the political realm. Unlike abortion, when affirmative action has been on the ballot, the conservative position has usually carried the day even in blue states like California and Michigan.
