Affirmative Action Struck Down, Roberts v Jackson
History Rhymes Again – Civil Discourse, Joyce Vance, substack.com.
Just over 60 years ago, Alabama’s segregationist governor, George Wallace, made his infamous stand in the schoolhouse door, barring the path against court-ordered integration at the state’s flagship university. It was June 11, 1963. Wallace, in his inaugural address, had promised voters “segregation now, segregation tomorrow, segregation forever.”
But Wallace’s defiance failed in the face of the rule of law. He ultimately stepped aside to permit the first two Black students at the university to enroll.
In a 1978 case, Regents of the University of California v. Bakke, the Supreme Court held that college admissions policies that considered race as one of several factors in determining admissions—what we know as affirmative action—were permissible. The justices rejected the argument that these policies violated the constitutional rights of white people and denied them equal educational opportunity. The Supreme Court reaffirmed this precedent in 2003 in Grutter v. Bollinger.
Affirmative action is not about unfair advantage. It is about leveling the playing field in the face of historical discrimination. And despite what the Supreme Court said this morning in a pair of cases ending the use of affirmative action in admissions policies, Students for Fair Admissions v. Harvard and Students for Fair Admissions v. University of North Carolina, our playing field is not level yet.
I teach at the University of Alabama’s Law School. I’m proud to have the opportunity to teach at a law school where affirmative active policies have helped to develop more diverse classes, full of amazing, smart, engaged students who go on to be the kinds of lawyers our communities need. Some of them come from backgrounds that made it challenging to arrive where they are today. But with a strong education, they become everything from general practitioners in small communities to big-firm lawyers, general counsels to civil rights lawyers, policy wonks, and people who put their law licenses to work in government and business endeavors. Affirmative action was helping our classes look more like the communities future lawyers are to serve.
I hope institutions of higher education will find ways to continue to champion diversity. But help in doing that, it’s clear, will no longer come from the courts.
Today, the Court held that Harvard and the University of North Carolina’s admissions programs violate the Equal Protection Clause of the Fourteenth Amendment. They ruled that colleges and universities can no longer explicitly use race as a consideration in admissions. Instead, they can, perhaps—until the next legal challenge reaches the Court—try to backdoor those considerations, for instance by permitting students to write admissions application essays about overcoming challenges they’ve faced in their lives.
Former President Trump posted on social media about the decisions and made a key point, certainly unintentionally, about today’s decisions. “We’re going back,” he wrote.
Going back is the operative language here. Because these are not decisions based on changing facts or evolving legal rules. It’s yet another override of longstanding precedent, based on the new composition of the Supreme Court. The 6-3 ultraconservative majority continues to implement important pieces of the conservative agenda, without regard for stare decisis. Former Vice President Pence made that clear in comments this morning. He said he was glad to see the conservative majority “we” put in place on the Court end affirmative action.
Today’s decision is about politics, not principle.
The majority opinion was written by Chief Justice Roberts, with concurrences from Justices Thomas, Gorsuch, and Kavanaugh.
But it’s Justice Jackson’s dissent that speaks the loudest to anyone who is truly listening. She begins by writing:
“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.”
And then, her ringing criticism of the majority:
“Deeming race irrelevant in law does not make it so in life.”
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Apparently, her criticism landed with force. Near the end of the Chief Justice Robert’s opinion, he writes,
“A dissenting opinion is generally not the best source of legal advice on how to comply with the majority opinion.”
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The context for that comment is important. There has been some suggestion, as people begin to work through the reasoning in more than 200 pages of written opinions in these cases, that there is a workaround for today’s ruling. If there is, it is an exceedingly slender thread.
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Chief Justice Roberts concludes;
“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. But, despite the dissent’s assertion to the contrary, universities may not simply establish through application essays or other means the regime we hold unlawful today . . . ‘[W]hat cannot be done directly cannot be done indirectly.’”
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It is in this context that Justice Roberts admonishes against taking legal advice from Justice Jackson’s dissent. Do not, he warns colleges and universities, try to get around our decision today. The opportunity to use even the process the justices say is permissible—letting applicants raise their individual experiences and qualifications—is clearly constrained. The majority may not have expressly overruled Grutter, but today’s decisions make it all but impossible to consider the legacy of racial discrimination in any meaningful way going forward. (Interestingly, institutions remain free to affirmatively consider privilege, in the form of making legacy college admissions.)
The Court ended affirmative action today, without formally ending it.
Will these decisions have legs beyond education? I hope not. It feels dangerous to even speculate about it. But just as reversing Roe v. Wade seemed like an impossibility until it happened, we live in a time where we must confront the possibilities.
Justice Jackson wrote,
“Our country has never been colorblind. Given the lengthy history of state-sponsored race-based preferences in America, to say that anyone is now victimized if a college considers whether that legacy of discrimination has unequally advantaged its applicants fails to acknowledge the well documented ‘intergenerational transmission of inequality’ that still plagues our citizenry.”
Sixty years after George Wallace stood in the schoolhouse door demanding segregation forever. Chief Justice Roberts would have us believe all is well in America. It’s impossible to miss the echo from his opinion in the voting rights case, Shelby County v. Holder, where he wrote racial discrimination was in the past and protection from it no longer necessary as his justification for gutting the protections of the Voting Rights Act. “Racial disparity in those numbers [low Black voter registration and turnout] was compelling evidence justifying the preclearance remedy and the coverage formula. There is no longer such a disparity.” Roberts is no more accurate today than he was when he wrote that opinion.
President Biden addressed the nation at noon and said that the decision was a severe disappointment to him. It is a strong disappointment to anyone who cares about fairness and equality and the future of our country. The challenge here will be finding a path forward that can turn collective disappointment into action, especially action at the polls, because we will need smart, committed elected representatives to act as a check on and balance to the Court. Wallace may have been forced to step aside in 1963, but we need to make sure we don’t go back.
We’re in this together,
Joyce
The Republican justices think they have their win on this. All they did is what such judges seem to do too often: Create more litigation. I have not heard anyone suggest this.
I can see people/students suing because their grades were better or the same and should have gotten in. Everything a potential student is judged on for acceptance is now up to potential litigation.
Republicans never ever think beyond their desired results to see what potential new issues they create.
Daniel:
Good Point(s). There will be a lot of shaking out going on with this change. I am surprised at the ignorance as willful as their positions are. Gorsuch will back Indians but not other minorities. Much duplicity.
Run
testing to see if an alternate comment disappears.
Justice Jackson writes a compelling essay in support of affirmative action. I agree with her, but until we solve the problem of the current court there are ways to get around their ruling.
this one works. now to figure out what was wrong with the two disappeared comments (yesterday’s on child care subsidies for business, and today’s on the strange idea that you can’t have a succesful life in America if you don’t get into an “elite” college). Meanwhile I will continue my affirmative action policy. just won’t tell anyone about it.
The way in which Texas handled the matter, was for public colleges and universities to expand enrollment to the upper ranked students in every Texas high school. So an upper ranked student in a school in a poorer community would be able to attend the University of Texas as would an upper ranked student in a school in a wealthy community.
“Republicans never ever think beyond their desired results to see what potential new issues they create.”
What a ridiculous stereotype. For a state university such a UNC to be able to discriminate in admissions by race or ethnicity or gender seems completely unfair. Find a way, other than by discrimination, such as Texas did to add to diversity in university enrollment.
The problem with the Texas “solution” is that many of the “premier” colleges and universities do not have enough available “slots” to accommodate the numbers involved. As to diversity in enrollment, Justice Thomas response is that he has “no idea” what “diversity” means. This court continues to make the case that when it is possible, politically, to do so, it should be “stacked”.
Jack:
My legalese mind must be cooked by the sun today. Give me the attorney’s meaning of “stacked.” As far as Thomas? He is somewhere, where he should have never been chosen to be.
Run, “stacked” as when Roosevelt tried to add additional justices to change the majority. They’ll need control of Congress to do it.
Jack:
Forgot and tired. Thank you. Been adding things to our new home. For some reason, no cupboard over the refrigerator. Cheap builder I believe. Repaint the family, dining, kitchen, and entry way (length of the house). Already added storage racking to the garage to get things off the floor. It is coming together, finally.
Years ago when I got my first diversity training we were told that diversity meant being open to everyone’s unique outlook, skills, experiences, etc. I suspect what Thomas might mean is that any set of n unique individuals has as much diversity as any other set of n on such a basis and no reference to race, as an example of an immutable characteristic, is really needed to achieve diversity. At a high-level you can sort of imagine that the race of individuals contributes something valuable to a set of students, but at the transaction level of it is one of these 3: Asian American George or African American Leanne or white American Amy, I think folks are just making it up mostly. Since none of the other students is George or Leanne or Amy, any pick will broaden the diversity.
Eric
sorry. this is an example of “logic” trapping you in a meaningless circle. te diversity gained by admitting another white man is not as great as the diversity you gain by admitting a black man.
and while i can’t give you the argument i gave in my disappeard comment, i will just say the whole “it’s my Constitutional Right to be admitted to an elite school if I scored higher on the SAT than some black person” is pernicious nonsense. More harmful to the person who believes it that even to the black person you want to push in line ahead of through your own claim of merit.
The problem with the Texas “solution” is that many of the “premier” colleges and universities do not have enough available “slots” to accommodate the numbers involved….
[ This is an important matter, but as far as I can tell there are premier public colleges and universities all through the country from Wisconsin to Georgia to Colorado and enrollments here can and should be expanded as necessary. Premier is U of Michigan, in effect, at least as much as Yale. ]
Those universities are state funded. One would have to persuade each state’s legislature to increase funding significantly and probably taxation as well. You don’t think that might be a problem?
Those universities are state funded. One would have to persuade each state’s legislature to increase funding significantly and probably taxation as well….
[ There was no problem funding increased enrollment in Texas, and I believe the same the prove true in other states. ]
The notion that affirmative action is ipso facto discriminatory is simply fetishizing certain admissions criteria. Schools like Harvard and UNC have far more qualified applicants than they can admit, so other criteria are used. Is being the captain of a sports team discriminating against disabled students who can’t compete in most varsity sports? Is being editor of the school newspaper discriminating against students from single-parent families who have to provide after care for younger siblings? In what sense is being a legacy admission not discriminatory? What about kids like Jared Kushner, whose father’s multimillion dollar donation to Harvard got him a seat?
My prediction is that this decision will have little effect. Universities are chock full of clever and resourceful people who can figure out ways to achieve racial (and gender) balance without being overt about it. Both Harvard and UNC, the universities about which this opinion was delivered, have top law schools that can guide their admissions programs. Universities have been aware that this roll-back was coming for years.
Having spent over 36 years as a medical school professor, I’ve had a ring-side seat to watch how post-Bakke medical school admissions can achieve ethnic balance while staying within the law.
Joel
I agree with you, so far ( you may not agree with me). For what it’s worth I despise Robert’s reasoning. It is on a level with Scalia’s in Dobbs. On the other hand I see no reason the schools need to have an explicit “affirmative action” policy. All it does is give the white Right something to feel sorry for themselves about…and give the liberals something to fool themselves about.
I see no reason why people should consider admission to Harvard or any other university a life altering necessity. Unless, of course, admission to an “elite” college is the same as admission to “the elite class,” which I hope is smelly enough to be rejected both politically and as a matter of mental hygiene.
You can do well, or more important: do good, without going to Harvard…or, if you can’t, then something is deeply wrong with our democracy.
Is being the captain of a sports team discriminating against disabled students who can’t compete in most varsity sports? Is being editor of the school newspaper discriminating against students from single-parent families who have to provide after care for younger siblings? …
[ Such differences can and should be taken into account in enrollment. An incisive comment. ]
ltr
i think you missed Joel’s point. …or maybe not: are you saying varsity sports should be considered? or that admissions should look at all the four thousand ways a person might have been disadvantaged so as not to have been able to play varsity sports?
disappeared comment?
well, well. that worked. only difference is that i posted this not as “reply”.
gonna try with the disappeared comment.
lost comment came home wagging it’s tale behind him. still a mystery where he was all day. apologies to those who think it was a big fuss about nothing.
i agree the comment was perhaps not all that important, but i would hate to lose my access to AB.