Unpacking the Supreme Court’s Ruling on Affirmative Action
“From this early standpoint, what we can sense from the Supreme Court decision against Affirmative Action, is that we must continue our work to change systems and have thinkers and pioneers at decision-making “tables” everywhere who think with equity first. The very essence of diversity and efforts to create a more diverse and inclusive society and sector may now be in jeopardy. Let us stay the course. Remember, people change systems. Systems change at the rate of people. We must literally become the change we want to see. ”
The following content is courtesy of the Othering and Belonging Institute, an entity which Allies in Action has found to be one of the very best resources around tackling the recent Supreme Court decision against Affirmative Action. You can learn more here: belonging.berkeley.edu
Affirmative Action, A History
Affirmative Action began in 1961 when President John F. Kennedy signed Executive Order 10925 aka the President’s Committee on Equal Employment Opportunity, which states that employers “take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, creed, color or national origin.”
“In the 1960s and 1970s, colleges and graduate schools began developing affirmative action policies to expand access to disadvantaged and underrepresented segments of society, including racial minorities.” (American Bar Association)
Before the Supreme Court’s decision in 2023 to strike down affirmative action on the grounds of it being unconstitutional, multiple prior Supreme Court cases upheld the need for affirmative action including 1978’s Regents of the University of California v. Bakke, 2003’s Grutter v Bollinger, and 2016’s Fisher v University of Texas
Students for Fair Admissions (SFFA)
Created by conservative activist Edward Blum in 2014 (who also founded the Project on Fair Representation) Students for Fair Admissions is a nonprofit membership group of more than 20,000 students, parents, and others who believe that racial classifications and preferences in college admissions are unfair, unnecessary, and unconstitutional (Students For Fair Admissions)
After six cases challenging DEI prior to 2023, Edward Blum and SFFA struck with their seventh and eighth cases against the public institution University of North Carolina (UNC) while stating their admissions process went against the equal protection clause of the 14th Amendment, and the private institution Harvard while stating their admission process went against Title VI of the 1964 Civil Rights Act
As of June 29th 2023, in a ruling of 6-2, Affirmative Action was ruled as unconstitutional.
Why This Matters
“By eliminating Affirmative Action, we are not creating equality. We are creating a neutrality that we call equality that erases diversity altogether. As such, we are creating segregation.”
“Colleges can no longer use race as a factor in admissions decisions to benefit minorities and enhance diversity.” (Edwin Chermerinsky). In states such as California, Michigan, and Washington, who already have eliminated affirmative action, then the public schools will not be affected. However, the private schools will be affected.
Segregation is not just physical but also symbolic. “It is not just the separation of people against each other, but the separation of opportunity.” (john powell). There is now a fear that we are erasing the history of the country itself by stating that students’ culture and background will not be taken into consideration during college admissions. As john powell says we are “curating a message about the country, about our history, and our future.”
Sheryll Cashin calls this “Colorblind Constitutionalism” with the assumption that the 14th amendment somehow demands colorblindness, despite it originally being created to protect black people soon after their emancipation after the Civil War.
In the future there will be those who will argue that there isn't structural systemic inequality, born from centuries of government inaction and anti-blackness, and use this case as their example.
Additional Resources
Othering & Belonging Institute
Unpacking the Supreme Court's ruling on Affirmative Action
