In Today’s Heartbreak, the Supreme Court Ended Affirmative Action as We Know It

Feature photo by Robert Mooney via Getty Images

Today the Supreme Court ruled that race-conscious admissions programs at Harvard and the University of North Carolina were unlawful — a decision that’s widely seen as the final blow in curtailing affirmative action in admission policies, a long-time standard bearer, at colleges and universities nationwide.

The SCOTUS vote was 6-3, with the court’s liberal members in dissent.

In writing for the majority opinion, Chief Justice John Roberts shared: “The Harvard and U.N.C. admissions programs cannot be reconciled with the guarantees of the equal protection clause. Both programs lack sufficiently focused and measurable objectives warranting the use of race, unavoidably employ race in a negative manner, involve racial stereotyping, and lack meaningful end points.”

It’s also worth noting that he added, “nothing in this opinion should be construed as prohibiting universities from considering an applicant’s discussion of how race affected his or her life, be it through discrimination, inspiration or otherwise.” Which does appear to leave space for colleges to use, for example, admission essays to consider the ways that race or racism has affected a student’s life, so long as that evidence is “treated based on his or her experiences as an individual — not on the basis of race.”

Justice Sonia Sotomayor, who summarized her dissent from the bench — something that pundits have commented is a rare move, signaling the depths of her disagreement — said it best. By being reductivist in its approach to race, minimizing the importance that race plays in all facets of what a student brings with them to college and the fullness of their life up to that point, “The court cements a superficial rule of colorblindness as a constitutional principle in an endemically segregated society where race has always mattered and continues to matter.”

In her own dissent, Justice Ketanji Brown Jackson took a… let’s say, more direct approach: “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… 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, not better.”

I have been told that Justice Jackson does not often use words like “let-them-eat-cake” in her legal writing, but she’s right and she absolutely should say it. Today is a day for being Big Mad.

In their writing, Justices Jackson and Sotomayor both had specific words for Justice Clarence Thomas.

Justice Sotomayor called out both Justice Thomas and Justice Roberts, who referenced Justice Thurgood Marshall’s work on Brown v. Board of Education (1954) in their argument to end affirmative action. Sotomayor noted that Justice Marshall had actually joined the plurality of Justices in support of the Regents of the University of California v. Bakke (1978) decision that upheld affirmative action in college admissions in the first place. In fact Justice Marshall’s view, according to Sotomayor, was that “Bakke’s holding should have been even more protective of race-conscious college admissions programs in light of the remedial purpose of the Fourteenth Amendment and the legacy of racial inequality in our society.” She went on to say that “the Court’s recharacterization of Brown is nothing but revisionist history and an affront to the legendary life of Justice Marshall.”

Meanwhile, Justice Jackson wrote in a two-part footnote, that in his argument Justice Thomas “responds to a dissent I did not write… He does not dispute any historical or present fact about the origins and continued existence of race-based disparity (nor could he), yet is somehow persuaded that these realities have no bearing on a fair assessment of ‘individual achievement.'”

The implications of today’s decision are far-reaching, with many experts believing there will be a sharp decline in Black and Latine attendance at top colleges, with some predicting that at highly selective schools “the Black students could return to levels not seen since the 1960s.” Others have suggested that changes in college admissions polices will have lasting, long-term implications for income ceilings and job prospects for those people of color most effected, just further embedding racial inequality into the fabric of our society.

Justice Sotomayor ended her dissent with one of the most famous quotes of Dr. Martin Luther King (at least, one his most famous quotes that don’t end in the word “dream”):

“Notwithstanding this Court’s actions, however, society’s progress toward equality cannot be permanently halted. Diversity is now a fundamental American value, housed in our varied and multicultural American community that only continues to grow. The pursuit of racial diversity will go on… Despite the Court’s unjustified exercise of power, the opinion today will serve only to highlight the Court’s own impotence in the face of an America whose cries for equality resound. As has been the case before in the history of American democracy, ‘the arc of the moral universe’ will bend toward racial justice despite Court’s efforts today to impede its progress.”

It was 1968 when Dr. King first said those words. That “the arc of the universe is long, but it bends toward justice.” It’s getting harder and harder to cling to. We’ve seen an ultraconservative Supreme Court undue decades of hard-fought rights in just one year, starting with ending the legal right to abortion last June, to expanding the right to bear arms, and now redefining the ways that race can hold bearing in creating equitable access. That’s not including the systematic tearing apart of trans and queer rights in every aspect of life through state legislatures. Even in elementary and high schools, book bans are quickly shifting how we are able to teach our children about themselves and their own histories or identities.

In 2004, when I was 18 years old and applying to college, in so many ways I had more access to rights to control my body and my destiny than, depending on where I lived in this country, I’d have at that same age today. And it’s hard. I know, I know it’s necessary — but it’s so hard to reconcile the idyllic moral arc towards justice in the face of so much erosion.

Instead, I find comfort in a different and sobering reminder in Sotomayor’s dissent: “Ignoring race will not equalize a society that is racially unequal. What was true in the 1860s, and again in 1954, is true today: Equality requires acknowledgment of inequality.”

That’s really all there is.

It’s funny you know, because I was just recently telling the story of my college graduation — which was 15 years ago last month. I went to a liberal arts school that didn’t require a cap and gown at graduation, so I planned not to wear one. I wasn’t a very “traditional” or “formal” person by nature (I’m still not) and honestly, I had a lot of stress around the cap squishing down my Afro. My mom was fine with it, but when I told my dad — he had a different take.

I was going to be only the second person in his immediate family to actually graduate college (15 years later, and I still am). My decision to not wear a cap and gown, it was a privilege. But those photos of me in that cap and gown? That mattered a lot more, to a lot of people I loved and a lot of people who I didn’t even know but who were emphatically still crossing that stage with me.

So, I pinned down my hair. I wore that cap and gown. I’m looking at pictures of me in it right now, from my bookshelf, while I write this article. I went on to become only the second person on either side of my family to get an advanced degree, graduating with a PhD before many people even decide if they want to go back to school at all. I think about that often, because affirmative action made a profound difference in my life, in my family’s life.

And the minute I started to tell this story, even now, I felt an urge to justify myself — to tell you that I graduated high school with honors (I did), while holding down a heavy slate of AP classes (check), and year-round extracurriculars that regularly got me home after dark and up doing homework until two A.M. (check check), while also holding down summer jobs (triple check). That I got into every college that I applied to. I feel this urge to somehow prove to you that I earned my spot, which I suppose is what Michelle Obama was writing about today in the wake of this Supreme Court decision, that for people who look like us and have attended college at any point in the last 45 years, there’s “a shadow that [we] couldn’t shake, whether those doubts came from the outside or inside our own minds.”

But that shadow? It’s not affirmative action. Affirmative action did not weasel its tentacles into our hearts and make us doubt ourselves — it did not teach our classmates, coworkers, and bosses to take one look at us and assume we didn’t belong in every room we entered. Racism did that. And it’s going to keep right on doing it, unfettered and with buoyancy, in the wake of today’s decision. Because rich white children did not lose their affirmative action today — they will continue to use their family connections, legacy checkboxes, and expensive extracurricular sports with private coaches and exclusive leagues, to get into the top schools of their choice without as much as a blink.

And they will never, not once, doubt if they belong there, no matter how many handouts and legs up they receive.

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Carmen Phillips

Carmen is Autostraddle's Editor-in-Chief and a Black Puerto Rican femme/inist writer. She claims many past homes, but left the largest parts of her heart in Detroit, Brooklyn, and Buffalo, NY. There were several years in her early 20s when she earnestly slept with a copy of James Baldwin’s “Fire Next Time” under her pillow. You can find her on twitter, @carmencitaloves.

Carmen has written 699 articles for us.

8 Comments

  1. This is where I learned they’d decided – a horrific decision that ignores both the reality of the US and the previous rulings. This piece is a very informative and thoughtful look and thank you for writing it

  2. Thank you, Carmen and I am so sorry you had to write this.

    I hadn’t read the part about Marshall, that is so cynical. It’s not enough to make the country a worse place, they had to insult the memory of someone who made it better.

  3. “ And they will never, not once, doubt if they belong there, no matter how many handouts and legs up they receive.”

    Damn. Thank you for finding the spoons and strength to get these words out.

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