Michael Casey/AP Photo
Students walk through a gate at Harvard University, June 29, 2023, in Cambridge, Massachusetts. The Supreme Court on Thursday struck down affirmative action in college admissions.
A year ago, the new 6-3 right-wing Supreme Court trashed decades of precedent to overturn Roe v. Wade and take away a woman’s constitutional right to decide her own medical care.
Today, the same 6-3 right-wing majority trashed decades of precedent to hold that even limited affirmative action in college admissions violates the equal protection clause of the 14th Amendment, a clause that, to the contrary, was intended to affirmatively remedy discrimination against Black people.
In 1978, 2003, and 2016, the Court’s precedents affirmed that universities may consider applicants’ race as part of an effort to foster diversity on campus. As of today, that precedent is, as former Justice Scalia would say, “dead, dead, dead.”
The ruling was no surprise. It is part of a decades-long campaign from the right not just to resegregate higher education, but to end race-based initiatives in other aspects of American life, including employment diversity programs, corporate board diversity quotas, and government contracting requirements.
As The Guardian wrote, “The ongoing racial backlash in this country extends beyond affirmative action … The movement limits Black presence, Black thought, and even Black control of Black institutions to return all of academia to white, elitist control.”
As with abortion, the ruling was all but a foregone conclusion when Donald Trump appointed three far-right justices. Today, Trump’s super PAC gave the former president full credit for the ruling, praising him for appointing “constitutionalist” judges. Like Dobbs, the overturning of long-standing precedent is not about the law, but about the politics of Republicans packing the Court with right-wing ideologues.
As Justice Sotomayor wrote in her dissent, “The devastating impact of this decision cannot be overstated. The majority’s vision of race neutrality will entrench racial segregation in higher education because racial inequality will persist so long as it is ignored.”
Historical experience shows that Justice Sotomayor is correct that the decision will entrench racial segregation in higher education.
When California banned race-conscious admissions in 1966, Black students at UCLA made up 7 percent of the student population. Just two years later, the percentage had been cut in half to 3.43 percent. Similarly, when Michigan banned affirmative action in 2006, the share of Black students at the University of Michigan dropped from 7 percent in 2006 to 4 percent in 2021.
According to an amicus brief submitted to the Court by over 30 competitive liberal arts colleges including Amherst, Wesleyan, and Williams, “Research has shown that the elimination of race-conscious admissions policies at highly selective institutions would have a drastic resegregating impact. Black enrollment would likely decline between 50% and 70%; the probability of Black applicants receiving offers of admission would drop to half that of white students; and the percentage of Black students matriculating would drop from roughly 7.1% of the student body to 2.1%.”
Even under the programs in place before this ruling, less than 10 percent of universities have a racial representation that is similar to current population statistics, according to Kinsey & Co. (Hat tip for that statistic to Prospect board member Derrick Jackson.)
SCOTUS’s majority opinion banning affirmative action will almost certainly retreat from even this unpalatable state of affairs, resegregating higher education and returning the number of Black students at top colleges to low levels not seen since the Jim Crow 1960s. While efforts to recruit more low-income students to top colleges may be a good thing in itself, there’s no evidence that it will have a material impact on racial diversity.
The hypocrisy of Chief Justice Roberts’s majority opinion is revealed in a footnote, which explicitly exempts military academies like West Point and the Naval and Air Force Academies from the ban on affirmative action, because of “the potentially distinct interests” they represent if military leadership does not reflect the diversity of rank-and-file troops who do most of the fighting and dying. In her dissent, Justice Jackson replied, “The Court has come to rest on the bottom-line conclusion that racial diversity in higher education is only worth potentially preserving insofar as it might be needed to prepare Black Americans and other underrepresented minorities for success in the bunker, not the boardroom.”
Today’s decision is part of a right-wing backlash, using an upside-down misreading of the 14th Amendment as mandating race neutrality rather than, as is actually the case, to affirmatively remedy historical discrimination against Black people. As Justice Jackson wrote in her dissent, “It would be deeply unfortunate if the Equal Protection Clause actually demanded this perverse, ahistorical, and counterproductive outcome. To impose this result in the Clause’s name when it requires no such thing, and to thereby obstruct our collective progress toward the full realization of the Clause’s promise is truly a tragedy for us all.”
The misinterpretation of the equal protection clause is likely to lead to further decisions undermining civil rights protections. The misinterpretation of the First Amendment’s free speech clause has enabled unlimited campaign contributions through supposedly independent super PACs. The misinterpretation of the First Amendment’s establishment of religion clause has led to decisions arguably allowing state-supported religion, or enabling discrimination.
Now add affirmative action to the distortion of the Constitution by a right-wing SCOTUS majority backed by a decades-long right-wing political campaign that is making America less free and less democratic.
