Bucking decades of consensus and precedent rooted in efforts to advance racial equality and desegregate schools, the Supreme Court’s conservative majority struck down race-conscious admissions policies at two major universities on Thursday in a contentious ruling that advocates say will unfairly restrict but not end affirmative action in higher education.
Major civil rights groups and advocates for minority students all sharply criticized the court’s ruling, which declared admission policies at Harvard and the University of North Carolina (UNC) to be unconstitutional because they consider an applicant’s race among a host of other factors in the application process.
Connie Chung Joe, CEO of Asian Americans Advancing Justice Southern California, said the decision is not surprising but still very disappointing, and will have a serious impact on communities that have benefited from affirmative action, including both Black and Latino as well as Indigenous, Southwest Asian and Pacific Islander communities that remain underrepresented in higher education.
The ruling could force many colleges and universities to change their affirmative action policies, but civil rights advocates said there is still so much that institutions can do to protect students of color. They called on colleges and universities to double down on efforts to improve diversity and lift up students who experience racial discrimination or hail from underfunded neighborhoods and school systems.
“The ruling doesn’t apply to every area of affirmative action; you can still have diversity, equity and inclusion policies and practices, you can still have affinity groups, you can still work on the retention of students of color … especially underrepresented ethnic students,” Chung Joe said in an interview.
Some universities are already working to develop strategies for replacing race considerations in admission with income data or a prospective student’s zip code, which could benefit applicants from underfunded K-12 school districts. Duke University recently announced that it would waive tuition for low-income students from North and South Carolina, according to Inside Higher Education. The policy is officially about accessibility and equity but is also expected to contribute to diversity on campus.
Yet experts say right-wing opponents of diversity initiatives are eager to file legal challenges to such practices now that they have won an important precedent in the Supreme Court. Central to debate are competing ideas between liberals arguing about the extent of racial progress in the U.S. and the reality of systemic racism that is reflected in the lived experiences of people of color. Civil rights attorneys also said they are ready take colleges and universities to task over racial discrimination, signaling that litigation over diversity and equity in higher education is bound to continue for years to come.
After the ruling was released, civil rights attorneys said the Supreme Court sided with conservative fantasies about a “colorblind” society and once again assumed progress toward dismantling racism and inequality that has not yet occurred.
“Funding disparities between schools with majority Black students versus majority white students remain especially stark, and even with comparable or identical college degrees, Black people make an average 20 percent less [income than their white counterparts] each year,” said Jennifer Jones Austin, CEO of the anti-poverty group Fulfilling the Promise of Opportunity, in a statement.
Civil rights leaders said the fight is not over and cautioned that the ruling does not prevent a prospective student’s identity or experiences with racism from being considered as part of the application process, a point Chief Justice John Roberts was also careful to make after issuing a divisive 6-3 opinion.
Roberts said on Thursday that “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.”
Young people and other critics quickly pointed out that, without affirmative action, Roberts is leaving it up to students to overcome racial barriers by unpacking their identity in essays and other portions of college applications, rather than any other aspect of their lives. However, civil rights groups said the Supreme Court left an opening for attorneys and activists to pressure schools to continue pursuing racial equity, including by challenging “legacy admissions” that give priority to wealthy students with alumni parents who are disproportionately white.
“So, there are paths forward to ensure racial equity in higher education,” said David Hinojosa, an attorney at the Lawyers’ Committee for Civil Rights Under Law who argued the case before the Supreme Court. “And we will pursue every avenue to hold universities accountable under federal civil rights laws, to reinstate a fair admissions process, where students’ identities are celebrated, not shunned.”
Hinojosa said the caveat from Roberts is almost certainly the result of brave university students who testified before the Supreme Court about their personal identities and experiences facing and overcoming racial discrimination.
“We know that in law there is both art and science to the law,” Hinojosa told reporters on Thursday. “This court’s decision puts a lot more art into the law by ignoring well-established precedent of more than 40 years. But as bad as the decision is, Chief Justice Roberts said himself, ‘All parties agree nothing in this opinion should be construed as prohibiting universities from considering an applicant’s decision of how race affected their life.’”
Another caveat from the Roberts opinion? A footnote explaining that military academies may continue using affirmative action if it helps them fulfill their mission. In a pointed dissent, Justice Ketanji Brown Jackson said this footnote reveals how the conservative court values the lives of Black and Brown people: “The court has come to rest on the bottom-line conclusion that racial diversity in higher education is only worth potentially preserving insofar as it might be needed to prepare Black Americans and other underrepresented minorities for success in the bunker, not the boardroom.” Jackson called the position “a particularly awkward place to land, in light of the history the majority opts to ignore.”
Chung Joe said it’s important to look toward the future and perhaps take lessons from her home state of California, where a ballot initiative struck down affirmative action years ago, but activists have continued to promote diversity and the inclusion of underprivileged students in higher education via a host of other programs and tactics. This includes financial and cultural supports for existing students to ensure they stay in school and succeed, which can be tailored to immigrants or Native American students, for example.
“I don’t want to understate the impact of this decision … but I also don’t want to leave with this message that all is lost forever,” Chung Joe said. “I’d like to finish with some message of hope and opportunity.”
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