High Court Guts Affirmative Action



WASHINGTON–The U. S. Supreme Court gutted previous precedent-setting rulings concerning affirmative action for college admissions, saying in cases involving Harvard University and the University of North Carolina that race-based considerations cannot be used for admissions.

Justice Ketanji Brown Jackson recused herself from the Harvard decision but registered a strong dissent in the University of North Carolina decision.

In the Harvard decision, justices voted 6-2 and voted 6-3 in the North Carolina decision.

Her recusal in the Harvard case came because she had previously served on the board of directors at Harvard.

In both decisions, Justice Clarence, the other Black on the nine-member court, voted with the majority in both decisions.

A single decision was issued by the court for both cases.

Chief Justice John Roberts Jr. wrote the majority opinion in both decisions.

The decisions reverse decades of precedent upheld over the years by narrow Supreme Court majorities that included Republican-appointed justices.  The two decisions to end the ability of colleges and universities — public and private — to do what most say they still need to do:  consider race as one of many factors in deciding which of the qualified applicants is to be admitted.

Chief Justin Roberts, a longtime critic of affirmative action programs, wrote the decision for the court majority, saying that the nation’s colleges and universities must use colorblind criteria in admissions.

Majority opinion

“Many universities have for too long…concluded, wrongly, that the touchstone of an individual’s identity is not challenges bested, skills built, or lessons learned but the color of their skin,” he wrote.

“Our constitutional history does not tolerate that choice.”

Justice Thomas took the unusual step of reading from the bench parts of his lengthy concurring opinion.

Thursday’s decision, he wrote, “sees the universities’ admissions policies for what they are: rudderless, race-based preferences.

“Those policies fly in the face of our colorblind Constitution.”

As he has done before, Justice Thomas, the second Black justice appointed to the court, reiterated his long-held view that affirmative action imposes a stigma on minorities.

“While I am painfully aware of the social and economic ravages which have befallen my race and all who suffer discrimination, I hold our enduring hope that this country will live up to its principles that … all men are created equal, are equal citizens, and must be treated equally before the law.”

Chief Justice Roberts, for his part, pointed to the court’s 2003 decision reaffirming the constitutionality of affirmative action programs, noting that Justice Sandra Day O’Connor, writing for the court at the time, had suggested that there would have to be an end at some future point.

That time has now come, Chief Justice Roberts said.

Opposing view

“It feels tragic,” said Columbia University President Bollinger, who has for 30 years been a leading proponent of affirmative action programs.

“It feels like the country has been on a course of choosing between a continuation of the great era of civil rights, and another view of ‘We’ve done this long enough, and we need a whole new approach.’ It’s now the second choice.”

That sentiment echoed Justice Sonia Sotomayor’s dissent.

“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,” she wrote.

Justice Ketanji Brown Jackson, the court’s first Black female justice, also chimed in, saying: “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.”

Indeed, the reality is that in those places where affirmative action has been eliminated, there has been a severe drop in minority, and particularly, African- American, admissions. University of New York law Prof.  Melissa Murray was the acting dean at the University of California at Berkeley in 2016 and 2017 when a state referendum barred the use of race in college admission decisions.

“There was an immediate drop off in the number of African-American students that was both a confluence of the change in the admissions policy, but also African American students not wanting to go [to Berkeley] under those conditions,” she said.

“People don’t want to be spotlighted. There is a kind of comfort in numbers, and it was very difficult for a very long time to recruit under those conditions.”

Indeed, the situation got so bad, she says, that she had to go to the president of the state university system to get permission to place clusters of African- American students in classes, instead of “sprinkling them around,” leaving minority students alone to speak their mind when subjects of race were discussed.

Door Left Open

Now every school will be in that situation, or so it may seem.
The court did not entirely close the door to racial considerations in college admissions.

As Chief Justice Roberts put it, “Nothing in this opinion should be construed as prohibiting universities from considering an applicants discussion of how race affected his or her life.”

Nor did the court address the tactic of clustering minority students in classes.

What’s more, the court specifically left open the possibility that the nation’s military academies, because of their “distinct interests,” may be able to continue with their successful affirmative action programs, which have resulted in a very diverse officer corps. “That issue is so sensitive because it raises the question of national security that the court has backed away from following its own logic,” said University of California at Berkeley Prof.

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