The Supreme Court strikes down affirmative action
The Supreme Court strikes down affirmative action
Chief Justice Roberts says advocates for race-based admissions envision a judiciary that picks winners and losers based on their skin color. Where’s that same energy for legacy admissions though?
Editor’s note: Your Supercreator author spent the morning and early afternoon speed-reading the 237-page Supreme Court decision that overturned affirmative action.
Below is a special edition of Supercreator, featuring an in-depth analysis in plain English of what it means for the future of higher education, corporate diversity, and more.
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The Supreme Court struck down affirmative action in a decision that will almost guarantee fewer Black and Latino students are admitted to the most choosy institutions of higher learning.
The split was what we’ve come to expect from Chief Justice John Roberts’s court: All six conservative justices ruled the admissions processes used by Harvard and the University of North Carolina at Chapel Hill are unconstitutional with the three liberal-minded justices in opposition.
Rep. Steven Horsford (D-Nev.), chair of the Congressional Black Caucus, said the Supreme Court has thrown its own legitimacy into question by denying young people seeking an education equal opportunity in the American education system.
“Unfortunately, we have seen backlash to progress many times throughout our nation’s history. During Reconstruction, we had a mere 12 years of Black achievement in policy, politics, the arts and sciences, and education that were followed by 70 years of state-sanctioned Jim Crow,” Horsford added. “We didn’t stop fighting for equality then and we won’t stop now because too much is at stake to allow extremists to turn back the clock on progress.”
Senate Majority Leader Chuck Schumer (D-N.Y.) said in his own statement the country would immediately feel the consequences of the decision.
“The Supreme Court ruling has put a giant roadblock in our country’s march toward racial justice. Students of color will face an admission cycle next year with fewer opportunities to attend the same colleges and universities than their parents and older siblings.,” Schumer said. “These negative consequences could continue for generations, as the historic harms of exclusion and discrimination in education and society are exacerbated.”
In a separate statement, House Minority Leader Hakeem Jeffries (D-N.Y.) said numerous studies show diverse student bodies produce more successful academic institutions and societal outcomes. (Over 40 percent of all US universities and 60 percent of selective universities consider race in some form during their admissions process.)
“Yet, extremists on the Supreme Court are once again more interested in jamming their right-wing ideology down the throats of the American people,” Jeffries said. “All students deserve a fair shot at going to college, regardless of their income, home town or their racial and ethnic background.”
The cases against Harvard and UNC were brought in 2014 by Students For Fair Admissions, a conservative group that recruits students who have been rejected by selective universities and files lawsuits on their behalf.
SFFA was founded by Edward Blum, a former stockbroker who connects potential plaintiffs with attorneys who are willing to represent them in “test cases” which he tries to use to set legal precedents. (Blum was a litigant and defeated in both Fisher cases, which challenged the University of Texas’s consideration of race in its undergraduate admissions process.)
Specifically, SFFA asked the court to overturn Grutter v. Bollinger — a 2003 case that ruled colleges and universities can consider race in their admissions processes to achieve campus diversity and prohibit race-based affirmative action in higher education altogether.
In his opinion, Chief Justice Roberts wrote that SFFA passed the two-step “strict scrutiny” test required and that the Equal Protection Clause is universal in its application, and that “eliminating racial discrimination means eliminating all of it.”
Roberts also wrote that although the Supreme Court has permitted race-based admissions, it’s been within the confines of narrow restrictions, including university programs may never use race as a stereotype or negative and that at some point they must end.
“Respondents’ admissions systems — however well-intentioned and implemented in good faith — fail each of these criteria,” he said of the Harvard and UNC programs. “They must therefore be invalidated.”
Nowhere to be found in the opinion was this same energy for legacy admissions, which gives certain applicants preference based on their familial relationship to alumni of an institution. It’s kind of strange considering Harvard accepted more than five times more legacies than non-legacy students between 2014 and 2019.
Universities can still consider an applicant’s discussion of how race affected their life though, be it through discrimination, inspiration, or otherwise though.
But due to the absence of lived experience or empathy, Roberts conflates all racial discrimination as created equally. He revises history to argue that the laws and decisions that outlawed racism against Black people apply in this instance as well. Sounds about white, if you ask your Supercreator author.
Justice Sonia Sotomayor wrote in a dissent your Supercreator author recommends you make the time to read in full that the court’s decision moved the goalposts that upset settled expectations and, as Schumer and Horsford said, has thrown admissions programs nationwide into turmoil.
Sotomayor further argued literacy is a tool that fueled enslaved Black people’s desire for liberation. But instead of upholding the principles of academic freedom protected by the First Amendment, the court’s decision reinforces a “colorblindness as a constitutional principle in an endemically segregated society where race has always mattered and continues to matter.”
From Roberts’s perspective, Sotomayor envisions a judiciary that picks winners and losers based on their skin color. But in Sotomayor’s view, ignoring race won’t make our union more perfect.
“Entrenched racial inequality remains a reality today,” she wrote. “That is true for society writ large and, more specifically, for Harvard and the University of North Carolina (UNC), two institutions with a long history of racial exclusion. What was true in the 1860s, and again in 1954, is true today: Equality requires acknowledgment of inequality.”
The court’s decision also carries alarming ramifications beyond higher education as politicians and activists wage a so-called culture war against any attempts to promote corporate diversity.
“There’s going to be a bleed in the workplaces, other types of programs — it won’t stop at that,” Aron Solomon, chief legal analyst at Esquire Digital, a company that helps trial lawyers grow their firms, said to Supercreator last October ahead of oral arguments for the Harvard and UNC cases. “There’s no way the Supreme Court is going to put an intellectual or practical fence around this and say, even though these cases only apply to Harvard, North Carolina and will be applied to colleges, it’s [not] going to come into other areas of our society.”
The decision is also indicative of a Supreme Court that giveth and taketh away: Just this week, it rejected a fringe legal theory and reaffirmed state courts have the authority to supervise a state legislature’s power to regulate federal elections in a victory for voting rights advocates. Two weeks earlier, in a 5-4 surprise ruling, it upheld a lower court’s ruling to strike down an Alabama congressional map because it violated Section 2 of the Voting Rights Act by discriminating against Black voters.
Your Supercreator author can understand why you’re holding your breath ahead of tomorrow’s decision on student loans.
President Joe Biden said people who support affirmative action can’t allow the decision to stand.
“It cannot change what America stands for. America is an idea. An idea unique in the world. An idea of hope and opportunity. Possibilities of giving everyone a fair shot, of leaving no one behind,” he said in a speech moments before publication. “We’ve never fully lived up to it. But we’ve never walked away from it either. We will not walk away from it now.”
Incredible analysis, thank you!