PDA Condemns SCOTUS Decision Against Affirmative Action, Calls for Equal Access to Education for All
We agree with Justice Sonia Sotomayor’s dissent in which she wrote that this decision: “rolls back decades of precedent and momentous progress [and] cements a superficial rule of colorblindness as a constitutional principle in an endemically segregated society where race has always mattered and continues to matter….”
We find Justice Sotomayor’s analysis accurate, and if anything too polite. We consider this decision just the latest in a premeditated effort to reverse hard won progress towards equal protection by imposing invidious, racist, sexist, xenophobic, homophobic, and other bigoted discrimination upon our diverse population.
In other words, this decision hypocritically reverses the intent of the Equal Protection Clause of the Fourteenth Amendment—the principle the majority relied upon in delivering this blow against inclusiveness. We at PDA decry this latest right wing assertion of White Male Cis Het Supremacy.
Today’s ruling recounts the history of the Fourteenth Amendment as follows: “For almost a century after the Civil War, state-mandated segregation was in many parts of the Nation a regrettable norm. This Court played its own role in that ignoble history, allowing in Plessy v. Ferguson the separate but equal regime that would come to deface much of America.”
Adding, “[I]n Brown v. Board of Education … the Court overturned the separate but equal regime established in Plessy and began on the path of invalidating all de jure racial discrimination by the States and Federal Government.”
Also, “The conclusion reached by the Brown Court was unmistakably clear: the right to a public education ‘must be made available to all on equal terms.’”
We agree with that historical recitation, but we believe that this decision sets us on a tragic course backwards toward separate and unequal. This, by reversing generations of painstaking progress.
We note with perhaps misplaced optimism that by describing admissions to Harvard, the University of North Carolina, and presumably other institutions of higher learning as “public education [that] ‘must be made available to all on equal terms’” the Court seems to be inching toward a doctrine of guaranteed free or nearly free college for all.
This, we’d enthusiastically support, and we hope that this bodes well for the expected decision on President Biden’s student debt forgiveness policy.
The majority accurately discussed the need to warily review any policies which take account of race writing, “Any exceptions to the Equal Protection Clause’s guarantee must survive a daunting two-step examination known as ‘strict scrutiny,’ [asking] first whether the racial classification is used to ‘further compelling governmental interests,’ [and] second whether the government’s use of race is ‘narrowly tailored,’ i.e., ‘necessary,’ to achieve that interest….”
However, this purported concern for Equal Protection Under Law is belied by the majority’s radical reversal of Justice Powell’s opinion in Bakke. That opinion specifically upheld Affirmative Action policies in college admissions as “‘narrowly tailored,’ i.e., ‘necessary,’ to achieve [a compelling governmental] interest,” and therefore constitutional.
The majority’s intention is clear. In striking down decades-old public policies carefully calculated—often adjusted and improved—they’re actively seeking to halt if not reverse progress toward racial and other equality.
As the majority decision noted, “This Court first considered whether a university may make race-based admissions decisions in Bakke [in which the de facto standard was articulated by] Justice Powell [who found the objective of] obtaining the educational benefits that flow from a racially diverse student body … to be ‘a constitutionally permissible goal for an institution of higher education,’ which was entitled as a matter of academic freedom “to make its own judgments as to … the selection of its student body.”
Despite reasonably reviewing the history of failed challenges to Affirmative Action, this court has indefensibly thrown out well-established, well-decided doctrine. So much for their conservative credentials! Once more, the right wing extremist jurists have trampled stare decisis—the principle that past precedent should determine legal decision making in a case involving similar facts.
In so doing, they have slammed the doors of colleges and universities in the faces of those who have long been excluded from admission because of their race, gender, national origin, and other factors. As has been the case far too often, a SCOTUS decision will inevitably result in the exact opposite outcome from what the majority claimed they were seeking to accomplish.
While we have misgivings about the imperfect design and operations of some Affirmative Action policies, there is absolutely nothing in the majority’s reasoning that could justify setting aside Justice Powell’s markedly conservative decision that such polices are constitutional under the ‘Strict Scrutiny’ test. For decades, such policies operated with considerable and measurable success, even though they’ve fallen far short of ending inequality in college admissions and other contexts.
As the Court found, “The final stage of Harvard’s [admissions] process is called the ‘lop,’ during which the list of tentatively admitted students is winnowed further to arrive at the final class. Any applicants that Harvard considers cutting at this stage are placed on a ‘lop list,’ which contains only four pieces of information: legacy status, recruited athlete status, financial aid eligibility, and race.”
Herein lies the inherent invidious racist intent of the Court’s decision: “legacies” are overwhelmingly caucasian, owing to the generations of segregation and other racial discrimination that persist to this day.
Therefore, by allowing Harvard and by extension all other colleges and universities to continue that form of discrimination—while outlawing effective efforts to remedy historical and current discrimination—the Supreme Court has exacerbated current racial discrimination and disallowed even a meager measure intended to protect the equal rights of People of Color and others who’ve suffered from inequality for centuries and still suffer to this day.
We understand and sympathize with those objectively harmed by clumsy, poorly implemented efforts to remedy current and past invidious discrimination. We hope that through careful deliberations, we can mend Affirmative Action, not end it.
Ultimately, unless and until we can adequately balance the playing field for all, we support currently successful, if imperfect, measures to promote and protect equal rights for all. We therefore demand restoration of the mild, yet moderately effective Affirmative Action policies, even as we hope to improve upon them.