The Supreme Court eliminated affirmative action. Where does the Jewish community stand?

The Jewish community’s history with affirmative action is complicated, with some Jewish groups originally outspoken against it now lamenting its end

The Supreme Court effectively disrupted the college admissions process across the nation on Thursday with its 6-3 decision that colleges and universities cannot use race as an admission criteria, outlawing affirmative action programs as they have existed for decades.

The Jewish community’s history with racial preferences is complicated. Decades ago, when the use of explicit racial quotas in a university’s admissions process was first challenged at the Supreme Court in 1978 (California v. Bakke), several major American Jewish groups were united and vocal in their opposition to such policies. A result of that ruling led to the practice of affirmative action, which allowed for race to be considered as one of many factors in the admissions process. 

Now, some of the same groups that led the charge against quotas are lamenting affirmative action’s demise.

“We are deeply disappointed with the Supreme Court’s decision finding that the admissions programs at Harvard and the University of North Carolina are unconstitutional. This decision reflects a fundamental misunderstanding of the history and present realities of racial discrimination in this country and the reasons why affirmative action is still needed,” Anti-Defamation League Senior Counsel Steve Freeman said in a statement to Jewish Insider.

“As Justice Sonia Sotomayor noted in her dissent, ‘Equality requires acknowledgement of inequality,’” he added. “Based on real-world experience, we continue to believe that diversity enriches the educational experience.”

As recently as two decades ago, the ADL opposed affirmative action and filed a brief at the Supreme Court to that effect. This term, ADL filed a brief defending Harvard University in one of the two affirmative action cases the Supreme Court considered. ADL’s brief rejected arguments made by the group challenging Harvard’s admissions policies, which compared its treatment of Asian Americans to the Jewish admissions quotas the school employed in the early 20th century.

“The lack of racial animus, intent to discriminate, or imposition of quotas, as well as the fact that Harvard’s admissions practices today promote (rather than inhibit) diversity, all distinguish those practices from Harvard’s admissions practices in the 1920s and 1930s, which were motivated by antisemitism, imposed a quota on Jews, and were explicitly designed to decrease Jewish enrollment,” the brief reads. “In light of those key distinctions, petitioner’s attempt to draw a comparison between Harvard’s discriminatory practices against Jews in the 1920s and 1930s and its current admissions practices is fundamentally flawed.”

WASHINGTON, DC – JUNE 29: Anti-affirmative action activists with the Asian American Coalition for Education protest outside the U.S. Supreme Court Building on June 29, 2023 in Washington, DC.

On the other side of the argument, the Louis D. Brandeis Center for Human Rights Under Law, which focuses on combating antisemitism, filed a brief making the opposite case to ADL, that Harvard’s alleged discrimination against Asian American applicants is comparable to its anti-Jewish quotas.

“Over time, Harvard has changed its admissions policies, but it has never changed its practice of engaging in intentional discrimination on the basis of race. Rather than remove the vestiges of its past discrimination, Harvard merely modifies its discriminatory policies and practices to target new and different racial groups,” the brief argues. “Today, Harvard discriminates against Asian Americans in admissions in the same manner in which it discriminated against Jews in the 1920s and 1930s.”

Kenneth Marcus, the founder and chairman of the Brandeis Center, told JI that Jewish students, in addition to Asian Americans and other groups, “have been excluded in recent years” through affirmative action policies.

The Supreme Court’s decision also comes at a time of shrinking Jewish populations at the nation’s most selective colleges, particularly Ivy League schools‚ which some have attributed to growing prioritizations of diversity at such institutions.

With the exception of the ADL and the Brandeis Center — as well as the Jewish Coalition for Religious Liberty, which filed a brief that did not formally endorse either side’s position but emphasized the importance of religious diversity — Jewish organizations largely stayed on the sidelines of this latest Supreme Court fight on affirmative action.

Supporters of affirmative action protest near the U.S. Supreme Court Building on Capitol Hill on June 29, 2023 in Washington, DC.

Overall, public opinion has been skeptical of  affirmative action policies — with Jews more supportive than the overall population. One of the few public polls that broke down public opinion towards affirmative action by religion was a 2009 Quinnipiac poll, which found 43% of Jews supported maintaining affirmative action and 39% supported abolishing it.

At the inception of affirmative action policies, much of the Jewish community, still stinging from the legacy of Jewish admissions quotas and concerned about the possibility that similar policies could return, was largely unified in its opposition to affirmative action programs. The issue marked a split between Jewish groups and many major Black civil rights organizations.

The Reform movement’s political wing and the progressive National Council of Jewish Women, which condemned Thursday’s decision, were the only two major Jewish community groups that were consistently supportive of affirmative action.

“We’re devastated at the ruling. Affirmative action is really a critical tool for racial equity,” Sheila Katz, NCJW’s CEO, told JI on Thursday. “We think it was a mistake, the decision, and we’re really urging institutions of higher education to think about how they’re going to pursue racial equity in light of this devastating decision that takes us backwards.”

Over time, the stances of American Jewish groups including the ADL and American Jewish Committee have shifted, a move that has been attributed to any number of causes: increasing alignment with politically liberal causes, alliances with civil rights groups supportive of affirmative action, shifting broader Jewish American political attitudes, recognition that quotas targeting Jewish students were not reinstated, and conclusions among American Jews that affirmative action policies did not substantially hurt their own enrollment numbers at elite institutions.

WASHINGTON, DC – JUNE 29: Protesters for and against affirmative active demonstrate on Capitol Hill on June 29, 2023 in Washington, DC.

Nathan Lewin, a prominent constitutional lawyer, told JI he had written at the inception of affirmative action programs that they would come “at the cost of Jewish students and Jewish applications — it has also come out to be at the cost of Asian applicants.”

He argued that major Jewish groups have moved in favor of the policies in the interest of “avoiding claims of racism by supporting affirmative action, even though it harms Jewish students.”

The Brandeis Center’s Marcus argued that the Supreme Court’s decision this week could “create more opportunity for Jewish students to compete on a more level playing field” in the college admissions process.

“This opinion, if taken literally and to heart, requires wholesale changes in the way in which selective higher education institutions handle admissions,” Marcus explained. “Having said that, there are potentially lots of different ways in which colleges may try to evade the decision by using various proxies for race in order to achieve race-conscious purposes. For that reason, I think that we should expect more challenges and more litigation to come.”

Marcus said that the case could open up new avenues for challenging considerations of race in other arenas, including selective public schools and in the professional world.

“We know that there are many corporations that have been taking racially preferential actions with respect to their workforce, their board and even their law firms and accounting firms, we can expect to see challenges there,” Marcus said. “Similarly, there are government agencies that have all sorts of racially conscious processes for their contractors, as well as their employees. That is another possible avenue of future litigation.”

The American Jewish Committee’s Chief Legal Officer Marc Stern said that the key question now will be how universities, employers and other institutions of civic life react to the decision, predicting that there will be “every effort to maintain certainly racial and ethnic diversity.” 

“We would certainly hope that today’s decision — whether you like it or not — doesn’t put an end to efforts to make sure that elite institutions and other institutions in American life, employment as well… to make sure that all groups and corners of society have a shot at getting the benefits that society has to offer,” Stern said. 

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