Last week, the United States Supreme Court voted 6-3 to end affirmative action in colleges and universities. It is the culmination of a decadeslong effort to strip the program’s benefits for Black and brown Americans, reversing the progress made since the Civil Rights Movement – leading to a sorrowful day for higher education.
Clarence Thomas’ self-hate continues to be on display. Despite being a beneficiary of affirmative action, he trotted out the tired talking point that affirmative action harms Black and brown students because they can’t succeed in college – an argument used by late Justice Antonin Scalia, for whom he religiously carried water when he was alive – and Asian American students by denying them the benefit of university admission.
Despite this simply not being true, Thomas and the conservative majority pressed forward with this terrible ruling.
Conservative justices are pushing the flawed theory of “color blindness,” the belief that we are in a post-racial America where everyone is equal and has the exact same opportunities. This ignores the reality on the ground. Black and brown students struggle to enter certain universities without the aid of affirmative action – not due to a lack of intelligence or the drive to succeed, but because of a lack of tools or access.
Affirmative action began in the late 1960s as one of the remedies to address the systemic racism that caused a lack of access to education for Black and brown people in this country. In some ways, it was a Band-Aid for many of the issues that have been plaguing the U.S.
As a country, we have never dealt with the effects of slavery, Reconstruction, Jim Crow and redlining – the practice of banks not lending to Black and brown families, shutting them out from generational wealth and access to better schools and services. Redlining has continued to the present day, with one California bank paying $31 million for doing so between 2017-2020.
Justices Sonia Sotomayor and Ketanji Brown Jackson, both beneficiaries of affirmative action, pointed out these discrepancies in their dissents. Sotomayor stated, “At bottom, the six unelected members of today’s majority upend the status quo based on their policy preferences about what race in America should be like, but is not, and their preferences for a veneer of colorblindness in a society where race has always mattered and continues to matter in fact and in law.”
Brown Jackson, who recused herself in the case involving Harvard, wrote: “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. 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.
“No one benefits from ignorance. Although formal race-linked legal barriers are gone, race still matters to the lived experiences of all Americans in innumerable ways, and today’s ruling makes things worse … The best that can be said of the majority’s perspective is that it proceeds (ostrich-like) from the hope that preventing consideration of race will end racism.”
We know how this will go. A result of this ruling will be that universities run the risk of becoming almost entirely white. Florida, Texas and California all banned race-based admissions at state schools in the 1990s and saw a decrease in Black and Hispanic/Latino students. The Quarterly Journal of Economics found in a 2022 study that students of color who would have gotten into Florida’s top universities were pushed down to less selective institutions. A review of all 1994-2002 applicants to the University of California found that Black and Hispanic students who reached college age soon after the ban faced a lifelong loss in income.
In truth, diversity in schools benefits students because when they graduate and venture into society and the workforce, they will encounter people from a variety of backgrounds, races and viewpoints. The college years are when students should be exposed to different ideas to set them up for success in the future. By making these universities homogeneous, we are doing a disservice to students of every race.
Even with affirmative action, we still have a long way to go in certain professions. Only 6% of doctors are African American, according to the Association of American Medical Colleges; the American Bar Association shows that only 5% of attorneys are African American. Think of the impact that an even greater lack of diversity will have on those two critical professions alone.
The question becomes, where do we go from here? While universities and colleges cannot directly consider race, they can consider other factors, such as student essays, income levels – which can get to the heart of some inequalities – and “adversity scores,” which have been used to successfully diversify California’s UC Davis Medical School. Schools can also be creative in recruitment to expose students who normally would not have the opportunity to attend institutions of higher learning to the university setting.
Dropping standardized test requirements, which many colleges and universities are already doing, would eliminate a significant barrier to entry. Schools could also abandon legacy admissions, considered by many to be affirmative action for white people. It’s the practice of favoring applicants whose parents are alumni. After the Supreme Court decision last week, President Joe Biden immediately suggested colleges should rethink the practice, saying legacy preferences “expand privilege instead of opportunity.”
On Monday, a civil rights group filed a complaint with the U.S. Education Department’s Office for Civil Rights alleging that Harvard’s admissions system violates the Civil Rights Act. The Ivy League university’s own data is being used against it. Records revealed during the affirmative action case show that 70% of Harvard’s donor-related and legacy applicants are white, and being a legacy student makes an applicant roughly six times more likely to be admitted.
Although the Supreme Court decision is deeply disappointing, it is not shocking. From the erasure of Black history in schools to the banning of books to legislation attacking various marginalized groups, there is a steady drumbeat of a blatant attempt to rewrite history and hide from the horrors that were perpetrated upon Black and brown people in this country. It is my hope that universities stay committed to the concept of diversity not only in words, but in deeds.
Melba Pearson is an attorney specializing in civil rights and criminal justice policy. She is the legal redress chair of the NAACP South Dade Branch. Previously, Pearson was a homicide prosecutor in Miami and deputy director of the ACLU of Florida.