By Brett Wilkins / Common Dreams
The U.S. Supreme Court on Thursday ruled in a pair of cases that affirmative action admissions programs at two universities are unconstitutional, a decision excoriated in dissents by liberal justices including Sonia Sotomayor, who wrote that the court’s right-wing supermajority is “entrenching inequality in education.”
The justices ruled that racially conscious admissions programs at the University of North Carolina and Harvard University violate the U.S. Constitution’s equal protection clause. The vote was 6-3 in Students for Fair Admissions v. University of North Carolina (UNC) and 6-2 in Students for Fair Admissions v. President and Fellows of Harvard College, from which Justice Ketanji Brown Jackson recused herself because she once served on one of Harvard’s governing boards.
“Gulf-sized race-based gaps exist with respect to the health, wealth, and well-being of American citizens. They were created in the distant past, but have indisputably been passed down to the present day through the generations.”
“The Harvard and UNC admissions programs cannot be reconciled with the guarantees of the Equal Protection Clause. Both programs lack sufficiently focused and measurable objectives warranting the use of race, unavoidably employ race in a negative manner, involve racial stereotyping, and lack meaningful endpoints,” Chief Justice John Roberts wrote for the court’s right-wing supermajority in the Harvard ruling. “We have never permitted admissions programs to work in that way, and we will not do so today.”
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“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,” Roberts added.
In her dissent in the North Carolina case, Jackson wrote: “Gulf-sized race-based gaps exist with respect to the health, wealth, and well-being of American citizens. They were created in the distant past, but have indisputably been passed down to the present day through the generations.”
“Every moment these gaps persist is a moment in which this great country falls short of actualizing one of its foundational principles—the ‘self-evident’ truth that all of us are created equal,” she continued. “With let-them-eat-cake obliviousness, today, the majority pulls the ripcord and announces ‘colorblindness for all’ by legal fiat. But deeming race irrelevant in law does not make it so in life.”
“And having so detached itself from this country’s actual past and present experiences, the court has now been lured into interfering with the crucial work that UNC and other institutions of higher learning are doing to solve America’s real-world problems,” Jackson added.
Dissenting in the Harvard case, Sotomayor wrote that “the court subverts the constitutional guarantee of equal protection by further entrenching racial inequality in education, the very foundation of our democratic government and pluralistic society.”
“Ignoring race will not equalize a society that is racially unequal,” she continued. “What was true in the 1860s, and again in 1954, is true today: Equality requires acknowledgment of inequality.”
True equality of educational opportunity in racially diverse schools is an essential component of the fabric of our democratic society. It is an interest of the highest order and a foundational requirement for the promotion of equal protection under the law. Brown [v. Board of Education] recognized that passive race neutrality was inadequate to achieve the constitutional guarantee of racial equality in a nation where the effects of segregation persist. In a society where race continues to matter, there is no constitutional requirement that institutions attempting to remedy their legacies of racial exclusion must operate with a blindfold.
Racial justice advocates also blasted the rulings.
In a statement issued minutes after the rulings, NAACP president Derrick Johnson said that “in a society still scarred by the wounds of racial disparities, the Supreme Court has displayed a willful ignorance of our reality.”
“We will not allow hate-inspired people in power to turn back the clock and undermine our hard-won victories,” Johnson vowed. “The tricks of America’s dark past will not be tolerated. Let me be clear—affirmative action exists because we cannot rely on colleges, universities, and employers to enact admissions and hiring practices that embrace diversity, equity, and inclusion.”
Traci Griffith, Director of the ACLU of Massachusetts’ Racial Justice Program, asserted that “the movement against affirmative action is part of a larger effort to rewrite our nation’s history, erase the lived experiences of people of color, and obstruct our full and equal participation in our democracy.”
“We’re seeing books by Black and LGBTQ authors banned from school curricula in an attempt to stop students at all levels from learning and talking about race and gender in public schools,” Griffith noted. “We will continue to fight these discriminatory policies.”
“We are united by our shared commitment to opportunity and freedom from discrimination and we know that when everyone has access to what they need to reach their highest potential, we all benefit,” she added.
National Education Association president Becky Pringle acknowledgedthat “racism and discrimination are not just artifacts of American history but continue to persist in our society, including our schools, colleges, and universities. Affirmative action and programs like it expand higher education opportunities to those who have been historically denied a fair shot.”
“We are stronger when our country, communities, schools, and future includes and reflects all of us,” Pringle added. “Today’s decisions by an out-of-touch and hyper-conservative Supreme Court are yet more evidence that the court is not working for all of us.”
Monica Garcia, the managing director for communications at Stand Up America, contended that “the Supreme Court’s decision to ban affirmative action in college and university admissions marks a significant setback in the fight for equity in higher education.”
“Nearly 60 years after affirmative action was put into place, Black and Brown students are still more likely to attend underfunded and under-resourced schools that limit their educational opportunities,” she noted. “As states like California have demonstrated, eliminating race-conscious admissions only exacerbates this inequity and decreases minority student enrollment, depriving all students of the rich exchange of ideas that our institutions of higher learning are supposed to provide.”
“The Supreme Court is intended to honor long-standing precedents—not to advance personal agendas from the bench,” Garcia added. “Congress has the power to restore ideological balance to this out-of-control court, and every member of Congress who cares about educational equity should support the Judiciary Act.”
The proposed legislation, which was reintroduced last month by House and Senate Democrats, is aimed at thwarting Republican attacks on democracy by expanding the number of justices on the nation’s highest court from nine to 13.
Brett Wilkins is a staff writer for Common Dreams.