By Marjorie Cohn / Truthout
During more than five hours of oral arguments in two cases that will probably spell the death of affirmative action in colleges and universities, the racism of the six right-wingers on the Supreme Court was on full display. It appears the court will overrule existing precedent that permits limited affirmative action.
The court ruled in the 2003 case of Grutter v. Bollinger that the 14th Amendment allows public universities to consider race as one factor in a “holistic” admissions process in order to assemble a diverse student body. “Numerous studies show that student body diversity promotes learning outcomes, and ‘better prepares students for an increasingly diverse workforce and society, and better prepares them as professionals,’” the court explained.
In 2016, the court reaffirmed the Grutter holding in Fisher v. University of Texas.
Now “Students for Fair Admissions” (SFFA) is asking the court to reverse Grutter. SFFA, a front group for Ed Blum who is not a student but a long-time conservative activist seeking to overturn the Voting Rights Act and affirmative action, is suing Harvard and the University of North Carolina at Chapel Hill (UNC). SFFA says its mission is helping “to help restore colorblind principles to our nation’s schools, colleges and universities.”
“Colorblind” is a euphemism for allowing racial inequality and unequal opportunity to continue.
When the court heard oral arguments in Merrill v. Milligan, which the right-wing majority will likely use to uphold Alabama’s racist gerrymandered district map, Ketanji Brown Jackson cited the “race-conscious” goal of the drafters of the 14th Amendment, who were “trying to ensure that people who had been discriminated against … were actually brought equal to everyone else in the society.… That’s not a race-neutral or race-blind idea,” Jackson said.
The radical right-wing supermajority is likely to use the so-called colorblind or race-neutral rationale to gut affirmative action in higher education.
UNC considers “more than forty criteria,” only one of which is the applicant’s race, in its holistic admissions process. There was no evidence in the court record that race was the decisive factor for any applicant.
Harvard’s attorney Seth Waxman said, “Race for some highly qualified applicants can be the determining factor just as being an oboe player in a year in which the Harvard-Radcliffe Orchestra needs an oboe player will be the tip.” John Roberts snapped back, “We did not fight a Civil War about oboe players. We did fight a Civil War to eliminate racial discrimination.”
SFAA lawyer Patrick Strawbridge also alluded to so-called reverse discrimination, shamefully arguing that the landmark case of Brown v. Board of Education forbids race-conscious affirmative action policies. He claimed that Brown “finally and firmly” forbade racial classifications to affect educational opportunities.
But in their amicus brief, the National Association for the Advancement of Colored People (NAACP) and the NAACP Legal Defense and Educational Fund wrote that “Brown did not espouse Petitioner’s version of ‘colorblindness,’ which would require decisionmakers to willfully ignore ongoing racial inequality,” adding that SFFA “seeks to re-write Brown to facilitate the resegregation of UNC in direct contravention to Brown’s express goals.”
Strawbridge maintained that while it would be improper to ask applicants to check a box indicating their race, it would be permissible for them to discuss in their essays how their cultural experiences affected them. “The race is part of the culture and the culture is part of the race, isn’t it?” Elena Kagan asked. “I mean, that’s slicing the baloney awfully thin.”
Jackson pointed out the unequal treatment of two hypothetical applicants, both of whom had families in North Carolina since before the Civil War and wanted to honor their family’s legacy by attending UNC. One wished to be the fifth generation to graduate from UNC. The family of the other applicant had been enslaved. “The first applicant would be able to have his family background considered and valued by the institution,” Jackson said, “while the second one wouldn’t be able to, because his story is, in many ways, bound up with his race and with the race of his ancestors.” She wondered aloud why this wouldn’t violate equal protection.
Roberts, Brett Kavanaugh, Amy Coney Barrett and Neil Gorsuch wanted an “end point” for the use of race as a factor in admissions. They cited Sandra Day O’Connor’s Grutter opinion that said, “We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.” But that was an expectation, not a command.
And just 19 years after Grutter, the conservatives appear ready to end any consideration of race in college admissions.
Clarence Thomas cynically stated, “I’ve heard the word diversity quite a few times, and I don’t have a clue what it means.” In his Grutter dissent, Thomas wrote, “Like [Frederick] Douglass, I believe blacks can achieve in every avenue of American life without the meddling of university administrators.”
Samuel Alito feigned ignorance about the phrase “underrepresented minorities,” asking, “What does that mean?”
In his Fisher dissent, Alito characterized affirmative action as “systematic racial discrimination.” He wrote, “What is at stake is whether university administrators may justify systematic racial discrimination simply by asserting that such discrimination is necessary to achieve ‘the educational benefits of diversity.’”
Roberts has a sordid record of rejecting the consideration of race in voting and discrimination cases. When he was a young lawyer in the Reagan administration, Roberts advocated a “colorblind” approach to voting rights and discrimination in public schools. In a 2006 voting rights case, Roberts wrote, “It is a sordid business, this divvying us up by race.” The following year, he flippantly wrote in a case that struck down voluntary desegregation programs in Louisville and Seattle, “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” In 2013, Roberts authored the opinion in Shelby County v. Holder, which gutted a critical provision of the Voting Rights Act.
Kavanaugh has also eschewed affirmative action. When he was a White House staffer, he derisively called an affirmative action program used in federal contracting a “naked racial set-aside.”
In supporting a colorblind process, the right-wing members of the court are in denial about the persistence of racism in our society. “So in the end, our color blindness, whatever that means because our society is not color blind in its effects,” Sonia Sotomayor said, “that comes as a high cost not only to UNC and to the state and to the nation as a whole, correct?”
UNC was “founded to educate the enslaving elite of this Southern state, allied for generations with the cause of white supremacy, roiled by racial tensions in recent years over the fate of a Confederate monument and treatment of Black faculty members,” education journalist Nick Anderson wrote in the Washington Post.
Sotomayor noted that the states which have banned any consideration of race saw a “dramatic drop in enrollment of unrepresented minority students, particularly black students and Native American students, but particularly black students.”
Indeed, as the president and chancellors of the University of California (UC) wrote in their amicus brief, the UC system has served as a “laboratory for experimentation” for race-neutral measures since 1996 when California banned race-conscious admissions procedures. Underrepresented minority enrollment decreased “50% or more at UC’s most selective campuses,” they found.
“A blanket ban on race-conscious admissions would cause racial diversity to plummet at many of our nation’s leading educational institutions,” U.S. Solicitor General Elizabeth Prelogar told the court. “Race-neutral alternatives right now can’t make up the difference, so all students at those schools would be denied the benefits of learning in a diverse educational environment, and because college is the training ground for America’s future leaders, the negative consequences would have reverberations throughout just about every important institution in America.”
The cases are expected to be decided by the end of June 2023.