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The SCOTUS Affirmative Action Ruling

Unpacking the SCOTUS Affirmative Action Ruling. Long before the recent ruling, a sequence of the Court’s decisions had been gradually eroding the practice.

“A student must be treated based on his or her experiences as an individual—not on the basis of race. Many universities have for too long done just the opposite. And in doing so, they have 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. Our constitutional history does not tolerate that choice.”

This distorted echo of Dr. Martin Luther King Jr.’s “content of character” declaration concluded the United States Supreme Court’s consolidated decision in two affirmative action higher education cases brought this term by Plaintiff Students for Fair Admissions. I, along with watchers of all stripes, had little doubt that the ultra-conservative Court—with its disregard for stare decisis—would deal a fatal blow to “race-conscious” college admissions. Long before the recent decisions that rejected Harvard College and University of North Carolina’s (UNC) processes, a sequence of the Court’s decisions had been gradually eroding the practice.

As a Black graduate of Harvard College and a former legal practitioner, I view the Court’s opinion through double-consciousness. I can parse its language based on studying constitutional law. More significantly, I view it through the lens of a first-generation college student, a Pell Grant recipient, and the daughter of a Black World War II veteran, who, after attending a Jim Crow high school, never benefited from the G.I. Bill’s low-cost mortgages or college tuition. While I was fortunate enough to attend one of the best high schools in the D.C. area, doubters questioned my right to occupy these spaces they had claimed as theirs. I knew them intimately when news of my early action admission was greeted with unkind mutterings, my college years colored by the questionable race science of two Harvard alums and by a Harvard professor’s claim that grade inflation originated with the presence of more Black students on the campus in the 1960s.

It was impossible to disregard these lived experiences as I read the Court’s opinion. Anyone on the Supreme Court who tells you that the course of their life does not influence their legal opinions—that they are simply umpires calling balls and strikes—is less than truthful. The proof of this statement lies in both their words and outcome, and evinces their unexamined privilege.

Chief Justice Roberts, writing for the majority, falsely equates race-based affirmative action—originating with a Kennedy administration executive order and subsequently applied to Harvard admissions in the late 1960s—with the type of invidious racial discrimination that it was enacted to redress, a conclusion that only a person who has always moved through the most elite, largely white circles could reach. He then proceeded to read colorblindness into the Equal Protection clause of the Fourteenth Amendment, thus ignoring its very origins: the treatment of Black people as legal inferiors, such that they “had not rights which the white man was bound to respect,” from Dred Scott v. Sanford. The majority opinion also reveals telling stereotypes about the Black and Brown students admitted to Harvard, even as Chief Justice Roberts chides the Harvard process for pernicious stereotypes it promoted by building a racial “plus factor” into its admissions process:

“Gaining admission to Harvard is thus no easy feat. It can depend on having excellent grades, glowing recommendation letters, or overcoming significant adversity. It can also depend on your race.”

While implying that the candidates need not have any of the former if they have the latter, Chief Justice Roberts ignores other Harvard preferences for legacies, athletes, children of faculty, and those on the dean’s interest lists. These preferences largely benefit white students, and may have a weightier impact on class composition than affirmative action. The roughly 12% of Black students are therefore the sole scapegoats for Harvard’s admission rates for students of white and Asian descent being lower than if test scores and grades were outright determinants. (Note that the composition of recent Harvard classes is still roughly 20% Asian American, while people of Asian origin comprise approximately 7% of the U.S. population).

Despite sustained preferential treatment of white students and the reality of systemic racism, the Roberts Court declares that the clock set in its prior Grutter v. Bollinger decision, positing that race-conscious admissions would be unnecessary within 25 years, or by 2028, has run out. It’s no surprise that the white conservative majority of this Court would issue an opinion so short-sighted when it comes to race. But there were also three more Justices: For the first time, a Court with two Black justices and one Latina justice was considering the issue of affirmative action in higher education. For me, the most compelling conversation was the one between Justice Thomas’s concurrence and Justice Ketanji Brown Jackson’s dissent in the UNC case.

Justice Thomas’s concurrence of grievance is deeply rooted in his experience as one of 12 Black students at Yale Law School in the early days of affirmative action. He warns of “elites bearing racial theories,” citing the Dred Scott and Plessy decisions—yet another false equivalence. He then spends an inordinate amount of space validating race science by questioning the ability of some Black and Latinx students to compete in highly selective institutions and remarking on the “badge of racial inferiority” that “stamps” the remainder.

In contrast, Justice Jackson effectively illustrates the deep-seated inequities in education, housing, generational wealth, and health that are legacies of racial discrimination and exploitation. She does so through the fictional John, a white seventh-generation applicant, and James, a first-generation Black applicant. While Black Americans are by no means a monolith, the story she tells is one that has repeated itself frequently throughout American history, including in her own family and in mine. She carefully walks through UNC’s use of race as merely one of many factors considered as part of the “personalized assessment of the advantages and disadvantages that every applicant might have received by accident of birth plus all that has happened to them since.” She concludes by calling out the perverse logic of prematurely ending race-conscious admissions, striking at the very heart of the majority’s decision: “Requiring colleges to ignore the initial race-linked opportunity gap between applicants … will inevitably widen that gap, not narrow it” and “delay the day that every American has an equal opportunity to thrive regardless of race.”

With the fate of race-conscious admissions settled for now, it is uncertain how institutions of higher education can immediately maintain the current levels of racial and ethnic diversity in their classes. Race-neutral alternatives—including class-based affirmative action, optionalizing standardized testing, percentage plans, and targeted recruitment—have been employed at various institutions, though none have been as efficacious as race-conscious admissions: The result has been significant drop-offs in racial and ethnic diversity. HBCUs (historically black colleges and universities), minority-serving institutions, and Tribal colleges and universities—many of which originated as sole alternatives for people of color wishing to pursue educational opportunities in segregated environments—will become more important than ever, but that also means we must invest more heavily in these institutions. Currently, the 10 largest HBCU endowments are one hundred times smaller than the 10 largest endowments for predominantly white institutions.

We also need to urgently address legacy admissions and early decision policies used at other elite institutions to lock in rich students. Advocacy groups have already initiated a suit against Harvard alleging that legacy admissions disadvantage and harm applicants of color. On the state level, two Democratic Massachusetts legislators have introduced An Act to Advance Fairness, Integrity, and Excellence in Higher Education Admissions, which proposes a tax on Massachusetts practitioners of legacy admissions meeting an endowment threshold in order to redistribute the funds to a trust for community colleges. Meanwhile, in Congress, Senator Jeff Merkley (D-OR) and Representative Jamaal Bowman (D-NY-16) have introduced the Fair College Admissions for Students Act to “address long-standing inequities and create more access for underrepresented students in higher education” by prohibiting higher institutions participating in Federal student aid programs from giving donor or legacy preferences.

As students from historically marginalized groups seek post-secondary educational opportunities in institutions no longer empowered to practice race-conscious admission, it will be up to these institutions and all of us to rethink current practices that contribute to equity, and to resource and support effective solutions.

Johnisha Levi brings a wide ranging perspective to her writing based on her experiences as an attorney and working for food insecurity and nutrition nonprofits. She was a 2013 LongHouse Food Media Scholar, as well as the author of a culturally relevant children’s nutrition curriculum, and a current recipe tester for the food blog Leite’s Culinaria. She is the Development Manager at The Nashville Food Project, a nonprofit that embraces a vision of vibrant community food security in which everyone in Nashville has access to the food they want and need through a just and sustainable food system. She graduated from Harvard College, New York University School of Law, and Johnson & Wales University. In her free time, she is an avid reader of memoirs, African American history, and literary nonfiction and is currently working on a memoir.

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