The Supreme Court Is Coming for Affirmative Action—Again

One might think that mediocre white folks and the minority of AAPI parents who have decided to join forces with them would be happy after their victory over affirmative action in the 2023 case known as Students for Fair Admissions v. Harvard. They succeeded in their goal of reinterpreting the 14th Amendment as “color blind”—notwithstanding the fact that the 14th Amendment was a direct response to over two hundred years of slavery and oppression of Black people in the New World—and with it ushered in a new era of “white makes right” hiring practices. 

The SFFA case has been extremely effective at limiting opportunities for Black and Latino students. Enrollment at the top 50 most selective colleges and universities plummeted for Black students during the year after the Supreme Court’s decision, falling by 27 percent. Enrollment for Latinos fell 10 percent. These people have won. 

And yet, the winners are not happy or satisfied. They feel they haven’t won enough, especially the people on the Supreme Court who are primarily responsible for making it harder for Black and Latino students to get into school. Having succeeded in cratering enrollment in colleges and universities, the court has moved onto its next target… fifth graders. Apparently, some Black and Latino fifth graders dared to get accepted into a few middle schools in Maryland and, well, parents of white and AAPI children can’t have that, now can they? 

On Monday, the Supreme Court agreed to hear a case called Association for Education Fairness v. Montgomery County Board of Education. The case arose when a group of mostly Asian American parents sued a Maryland school district over its admissions process for four highly selective magnet schools. 

The policy, adopted in 2021, during the Covid pandemic, involved placing all fifth graders who met a set of criteria—grades, reading comprehension, and yes, the beloved standardized test scores—into a pool. The kids’ scores were compared to other kids at similar elementary schools (for instance, children who came from schools with high poverty rates were compared to other children from schools with high poverty rates). From within that pool, students were then chosen randomly to attend one of the four magnet schools. It makes sense that kids should be compared to other kids from similar schools in order to get into the pool of potential lottery winners, since how you do relative to the educational environment you find yourself in should be the thing that matters when we’re talking about freaking elementary school. But if you think like that, then you’re not thinking like a parent who is sure that any opportunity that goes to a kid who is not their own is an affront to the natural order of racial supremacy and the Constitution. 

In any case, during the time period this plan was active, AAPI enrollment actually went up at two of the four schools, and AAPI students were overrepresented in the magnet schools relative to their population in Montgomery County.  

So, you have ostensibly “race-neutral” criteria. You have a literal random lottery. You have enrollment going up for AAPI students in some schools, but the Maryland schools were still occasionally admitting the Black and Latino fifth graders by allowing those kids to compete against their peers instead of an unequal playing field, so that meant some Asian American parents could still be pissed off enough to file a lawsuit. 

While we’re here, I think it’s important to point out that, although I certainly blame the litigating parents for their participation in racial discrimination against kids from impoverished schools, I am able to see why they think they have to drip this bile over other people’s children. It is, fundamentally, ridiculous that we are made to think there are only four good middle schools in an entire county. Why isn’t every school as good and desirable as these four magnet schools? Why do we make parents feel like educational resources are scarce and must be competed for in a zero-sum environment. 

One solution to the problem of equal opportunity in education is to make every school a palace. Getting into a good school shouldn’t be like winning a lottery, it should be the default expectation in this society. But… we don’t want to do that. We’d rather send AAPI kids and Black kids and Latino kids and even white kids into some kind of Dickensian tragedy where there’s not enough education to go around so some kids get gruel. 

Be that as it may, the lawsuit was dismissed by the lower courts because, obviously, when you have race-neutral criteria, a literal lottery, and your group does better than its proportional representation, it’s pretty hard to allege racial discrimination against you with a straight face. Moreover, the lawsuit should be moot because the Montgomery Board of Education uses some other system now. There’s no reason for the Supreme Court to take up the case other than to overrule the Fourth Circuit Court of Appeals, 

For a mercy, I guess, the Supreme Court seems only to be interested in a narrow question: whether the fact that the system was race-neutral is enough to dismiss a claim for discrimination against AAPI students out of hand. My guess is that the Republican super majority will say “no,” and that the case will therefore move forward, allowing the lawyers to keep searching for evidence that Black fifth graders shouldn’t get into magnet schools as long as there is a white or Asian kid who wants to go to the same school. 

But in some sense, that’s the most dangerous part of a lawsuit—the fact that, despite victory, the victors are not satisfied and will not be satisfied until Black students are drummed out of the system. We see the strands of this kind of mentality from the functional spokesperson for the entire white and AAPI grievance movement, legal gadfly Ed Blum. On Monday, Blum was given an entire column in Jeff Bezos’s Washington Post to argue that colleges and universities are still discriminating against white and AAPI students by admitting Black people. Blum’s main point of contention was, as always, test scores: “The median LSAT scores of rejected Asian and White applicants in the 2024-2025 cycle at Duke far exceeded the median scores of admitted Black applicants, who were 3½ times more likely to be admitted than a similarly qualified Asian applicant,” Blum wrote. He then went on to decry the fact that schools (Blum’s column was mostly focused on law schools) continue to use personal essays and other factors to make admissions decisions. 

People like Blum would have you believe that standardized test scores are the only thing that should matter when it comes to admissions—as if every applicant in the country should take a test and the person who scores “the best” should get into their first choice school and so on and so forth, until the person who scores the worst can either go to Trump University or kill themself. 

But that’s not how admissions have ever worked or should ever work. Schools are going to take a number of factors into account when building their applicant pool. Blum, who has pushed these cases and organized groups of AAPI parents to do the same, has succeeded in convincing the courts that race is the one factor, different from all others, that schools cannot look at—but admissions committees are still free (as of now, at least) to look at a number of other things, including: geographic distribution, gender, economic factors, leadership qualities, legacy status, and whether an applicant “fits” with the school’s mission and ethos. Some law schools, for instance, place a heavy emphasis on work experience; others value people who are likely to stay local and serve the community where the school is located. Blum sees only one test to rule them all, but people smarter than Blum appreciate the (trigger warning) diversity of an admitted class with a mix of skills and strengths to bring to the classroom. 

Blum’s solution to the apparent problem that Black people are still getting into school despite his organization’s best efforts is Orwellian in scope. He demands “mandatory public disclosure” of all of a school’s applicants. : “This would include,” he wrote, “standardized test scores, GPAs, family income, Pell Grant eligibility, AP coursework and other metrics, broken down by race and ethnicity.” 

Can you imagine applying to a school and, as a result, watching your family’s personal income become a matter of public record? Can you imagine having to share whether or not you are eligible for a Pell Grant with the entire world? Can you imagine having to do all of this because some guy like Ed Blum doesn’t think you belong in school? In three years, Blum has gone from “universities shouldn’t consider race” to “universities should make public personal information, broken down by race and ethnicity, for my edification.” 

The goal isn’t just to keep Black and Latino kids out of schools, it’s to discourage them and their parents from even applying. It’s not enough that Black and Latino enrollment should fall off a cliff. If there is one Black kid in a selective school, there’s a white or AAPI parent who thinks their kids should have gotten in instead. No matter that the white or AAPI kid couldn’t outcompete a kid with similar education privileges who did get in. No matter that a test score isn’t the only or best measure of a person’s academic worth or intellectual potential. If a Black or Latino kid exists at a school, people like Ed Blum will always argue that they shouldn’t. 

For these people, one Black kid will always be one too many. They think the Constitution doesn’t protect equal protection and equal access to opportunity, they think it protects overrepresentation for their kids.