Defying more than 45 years of legal precedent, the United States Supreme Court – in a widely-expected ruling – declared that colleges and universities can no longer consider race in their student admissions, ending decades of an affirmative action push in higher education.
The court, dominated by far-right conservative Republican judges, voted 6-2, against the admissions program at Harvard University and 6-3 against admissions policies at the University of North Carolina. The majority opinion, written by Chief Justice John Roberts, asserted that both institutions violated the 14th Amendment’s Equal Protection Clause, thus rendering their programs unlawful.
This is the second time in two year, that the super-majority Republican court has reversed almost 50 years of precedent on an issue that had gone a long way toward leveling the uneven playing field for non-white students in higher education. The ruling – which came after a decades-long effort by Republicans – is out of step with the 63 percent of Americans who in a May AP/NORC poll - support Affirmative Action.
Reaction was swift and fierce, particularly from two liberal justices who rebuked the idea posited by the majority that programs designed to offset racism by increasing racial diversity are themselves racist.
“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,” said Justice Ketanji Brown Jackson in a blistering 29-page dissent. “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 …”
Jackson sparred with Justice Clarence Thomas, who during oral arguments said college admissions have become a “zero-sum game” in which Asian students “suffer because of an outdated overcorrection by courts during the civil rights era.”
“This is not 1958 or 1968. Today’s youth do not shoulder moral debts of their ancestors,” added Thomas while criticizing Jackson personally.
“As she sees things, we are all inexorably trapped in a fundamentally racist society, with the original sin of slavery and the historical subjugation of Black Americans still determining our lives today,” Thomas wrote.
One section of Jackson’s dissent that caught fire on social media was her savaging of the court majority.
“With let-them-eat-cake obliviousness, today, the majority pulls the ripcord and announces ‘colorblindness for all’ by legal fiat,” Jackson said. “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.”
Although the toppling of the law was expected, a wide spectrum of observers were left angry, distraught and frustrated.
“My frustration is the feeling of powerlessness and being unable to press a button to make things better. If I could, I would,” said James Haywood Rolling, Jr., chair of Arts Education at Syracuse University since 2007. “This outcome was set up by the fools who couldn’t play chess well enough to not get Donald Trump elected. He had no interest in governing ... folks allowed him to get the levers of power. There will be reverberations that will affect people we love and will continue to.”
Michelle Marks-Osbourne, a Christian minister, scholar and an equity expert, echoed Rolling’s displeasure.
“I am upset but I expected nothing more from this court. Just to know that this self-loathing man who spoke Gullah Geechee knows he has received so much affirmative action and voted in the manner he did,” she said. “I’m pissed, not pissed. I wrote on Facebook: ‘Dear Black students, HBCUs are waiting ...’”
Little will change for African Americans until the composition of the court shifts, Marks-Osbourne said.
“It’s not until the (high) court changes that this harm will stop. Alito and Thomas are the two oldest on court. It’s a waiting game,” said Marks-Osbourne who grew up in Harlem but now lives in North Carolina. “I am aware that the court struck the law down based on race not gender. If it did, white women would be screaming because they are the beneficiaries of the most affirmative action.”
While encouraging universities to double down on new ways to promote opportunity, Damon Hewitt, president and executive director of the Lawyers’ Committee for Civil Rights Under Law, lamented the far-reaching impact the court’s decision will have on already disadvantaged prospective students.
“Through a tortured interpretation of the law, history, and current-day reality, today’s decision threatens to make higher education less accessible, less equitable, and less attainable for students of color,” said Hewitt in a statement. “While seemingly leaving existing precedent undisturbed, the majority’s logic will make it more difficult for all students to have a fair shot at getting the quality education they deserve, especially America’s most marginalized students. This Court is clearly on the wrong side of history.”
Republicans like former President Donald Trump, House Speaker Kevin McCarthy and former Vice President Mike Pence applauded the ruling.
“I’m grateful to see the conservative majority that we have built on the Supreme Court of the United States bring an end to most of affirmative action. We want to live in a color-blind society,” said Pence, during an interview in Kyiv, Ukraine Thursday. “There may have been a time, 50 years ago, when we needed to affirmatively take steps to correct long-term racial bias in institutions of higher education, but I can tell you that as the father of three college graduates, those days are long over.”
Pence also said he’s grateful too, “that the Supreme Court took us one step back to that America that will judge every man and woman on the content of their character and on their own achievement and leave race out of the consideration of admissions to higher education.”
Affirmative Action supporters chastised the court’s radical right majority and rebuked Republicans’ hypocrisy and dishonesty.
“America doesn’t look like it looks by mistake. Old Miss doesn’t look like the way it does by mistake, Princeton doesn’t look like the way it does my mistake,” said Dr. Eddie Glaude, Chair of the Center for African American Studies and the Chair of the Department of African American Studies at Princeton University. “It’s the result of deliberate policy. And if we’re going into a world where we’re not defined by racial inequality then we have to be as deliberate in dismantling it as we were in creating it. Declaring color-blindness is not being deliberate.”
Glaude said America is in the midst of relitigating the 1960s and extremist Republicans in high places are rolling back all the considerable gains of marginalized sections of American society over the past 60 years.