CREDIT: Alliance for Justice
(Alliance for Justice staff rally in front of the Supreme Court for affirmative action.)
On June 29, 2023, the Supreme Court set the United States back decades, invalidating the policy that enabled institutes of higher learning to pursue diversity and equity through admissions: affirmative action. In the majority opinion for Students for Fair Admission (SFFA) v. Harvard and SFFA v. UNC, two cases brought by an organization founded by the architect of litigation that all but gutted the Voting Rights Act in 2013, the six-justice super-majority concluded that the Fourteenth Amendment, a bill enacted to rectify discrimination faced by African Americans, must be interpreted in a “colorblind” manner and thus affirmative action is prohibited.
As an immigrant, I was taught to view education — particularly an American education — as the great equalizer. With education came the power to not only change your life for the better but also to repair systemic injustices. In the United States, the battle to ensure racial equity and inclusion at the Supreme Court reached a tipping point in the 1954 ruling Brown v. Board of Education, in which the Court overturned the “separate but equal” ideology it had long used to justify racial discrimination and practices such as segregation.
In recognition of the long history of “separate but equal” and the stolen opportunities at the hands of this doctrine, theories of using race as a positive distinguishing factor became popular. In an effort to level the playing field, many colleges and universities, among others, adopted race-conscious decision-making (a.k.a. affirmative action) in admissions. Universities understood that no single measure can provide a proxy for a student’s experiences and capabilities or serve as a heuristic. Universities also recognized that students benefit when they interact with others who have varying backgrounds, experiences, and perspectives.
In an early, landmark challenge to affirmative action, Grutter v. Bollinger, the Court held that the Equal Protection Clause does not prohibit a school’s tailored use of race in admissions decisions. Rather, the Court recognized a compelling interest on the part of educational institutions in promoting and reaping the benefits of a diverse student body. The Court in Grutter recognized that universities conduct highly individualized reviews of each application, and no decision is based automatically on a factor such as race. Such a process ensures that all variables that may contribute to diversity, including race, are meaningfully considered. Nonetheless, two decades later, the conservative Court has effectively overturned Grutter, finding that the benefits of a racially diverse student body are no longer compelling.
Students for Fair Admissions, the petitioner in the two affirmative action cases, took a calculated approach in its bid to undo years of civil rights progress attempting to pit marginalized communities against one another. In two previous cases, Fisher I and Fisher II, the same organization tried to attack affirmative action by alleging that the University of Texas racially discriminated against white applicants. Then, the Supreme Court upheld the constitutionality of affirmative action in higher education. This time around, however, the Asian-American students claiming they were harmed provided the Supreme Court with what it deemed adequate pretext to find that affirmative action violates the Equal Protection Clause of the Fourteenth Amendment.
Defendants, Harvard College and the University of North Carolina, acknowledged using race as one of many factors in their admission processes. They argued that their practice adheres to the guidelines set forth by the Court in Grutter v. Bollinger. Peering beyond the court room, the need for affirmative action and other similar policies is not a matter of opinion but fact.
Even with the use of affirmative action, school segregation across all school types remains as substantial a problem in 2023 as it was in the late 1960s. What drives segregation today is socioeconomic status — the intersection of race and class. Historical practices, like redlining and other housing discrimination practices on the basis of race, created and perpetuate racially segregated neighborhoods, which in turn have produced racially segregated schools.
Because it is difficult to separate race and class, some students — particularly members of underrepresented communities — face far greater hurdles than others to get to the same university. K–12 educational deficits, which exist generally in historically underserved communities, inexorably impact Black and Latinx students’ access to higher education. Moreover, because institutional advantages and racism persist past the point of admission, no two students can be guaranteed the same education even within the same institution.
If race cannot be a factor in admission decisions, as the Supreme Court suggests, would it be based on “merit,” test scores, and GPA? As a trio of professors explained at Inside Higher Ed, “The predominant use of merit-based metrics perpetuates systematic racism, classism, exclusion, and marginalization.” The means of mitigating these forms of disadvantage are few. Some higher education institutions evaluate students based on how many advanced placement (AP) courses they have taken, for example. But schools that serve students of color and low-income students are less likely to offer AP courses. Standardized test scores, meanwhile, strongly correlate to the income of a student’s parents and whether the student had access to expensive test preparation programs. Few criteria that colleges use to evaluate applicants qualify as remotely equitable or neutral.
Race continues to impact all aspects of one’s life. Pretending it doesn’t and demanding equality disregards the lived experiences of so many Americans. Using a so-called “colorblind” approach ignores the reality of pervasive, deep-seated racism in the United States. In America, white men outearn all other racial groups. The Pew Research Center highlights that “some of these wage gaps can be attributed to the fact that lower shares of Blacks and Hispanics are college educated. U.S. workers with a four-year college degree earn significantly more than those who have not completed college. Among adults ages 25 and older, 23% of Blacks and 15% of Hispanics have a bachelor’s degree or more education, compared with 36% of whites and 53% of Asians.”
Making it more difficult to consider race in the admissions process ensures the entrenchment of systematic issues from the breath-taking wage gap to Black maternal mortality to so many other inequalities that exist today. As Justice Ketanji Brown Jackson so powerfully stated in her dissent, “Deeming race irrelevant in law does not make it so in life.”
Affirmative action benefits all students. It is, in fact, perhaps the most pragmatic early-intervention option for responding to the social implications of decades of redlining. De facto segregation in elementary and secondary schools leads many students to go into college having never left their bubble, meaning they may never have the opportunity to grow from being challenged by a different environment. It is beneficial for a student who had to leap over fewer hurdles to learn to recognize their privilege and confront its implications, to learn from classmates whose lived experiences differed tremendously. What I present is no mere hypothetical: The academic and social benefits of diversity are well-documented and essential.
Having a diverse student body in higher education helps everyone. I wouldn’t be the student I am today, an advocate and change-maker attending law school, had I not collaborated with classmates that challenged the lens through which I view the world. Diversity gave me a sense of belonging; others’ responses showed me that my ideas are being heard — that they matter. From both personal experience and the plethora of studies on the subject, we know diversity also disrupts preconceived notions, encourages critical thinking, and helps students learn to communicate effectively with people of different backgrounds.
For the Supreme Court to suggest that ensuring a diverse student body is not a compelling interest should frighten and concern every American. The justices should be the first to understand that intrinsic to law is its significance as a service to society. If we do not seek diversity, equity, and inclusion in educating those who will provide this service and uphold our laws, we exclude countless brilliant future lawyers — most concerningly, those from underrepresented groups and those still seeking representation.
Kalsang Dolma is an intern at Alliance for Justice.