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The Supreme Court’s Decision on Affirmative Action Must Not Be the Final Word

6 minute read
Johnson is the Ruth Bader Ginsburg '59 Professor of Law and the Co-Director of the Center for Constitutional Governance at Columbia Law School. She specializes in antidiscrimination and equality law, statutory interpretation, and democracy

The Supreme Court of the United States just limited the ability of universities to consider an applicant’s race and ethnicity in admissions. The cases—Students for Fair Admissions v. Harvard University and Students for Fair Admissions (SFFA) v. University of North Carolina—struck a blow to race-conscious affirmative action programs that have been crucial in providing talented students of color access to highly selective public and private institutions. In its opinion, the Supreme Court found that Harvard and UNC’s consideration of race and ethnicity in determining admission violated both the 14th Amendment of the United States’ Constitution and Title VI of the 1964 Civil Rights Act .

While a legal blow, the Supreme Court’s decision should not—and need not—be the final word. Our collective legal and democratic responsibility to address the racial and ethnic inequalities that persist in the U.S. education system is as important as ever. Because what the Supreme Court does not have the power to do is erase the history or language of our civil rights laws, or the principles underlying them.

The majority’s actions are characteristic of an “imperial Court,” as Professor Mark Lemley has termed the current conservative super-majority. This is a Court that boldly arrogates power to itself. In the SSFA cases, the Court effectively overturned long-standing precedent—in particular, the 2003 decision in Grutter v. Bollinger upholding consideration of race and ethnicity as one factor in a flexibly designed admissions program.

While Chief Justice Roberts’ majority opinion exhibits concern with the “pernicious” effects of race-conscious affirmative action programs to promote diversity, it ignores the core problem of unjust distribution of educational opportunity and access on the basis of race, ethnicity, and class. Black, Latino, Vietnamese-American, and Filipino communities are among those who remain most underrepresented in higher education, including at selective flagship state institutions in states where they pay taxes. At highly-selective public colleges and universities, “merit” scholarships, out-of-state recruitment practices, and legacy preferences all work to disadvantage under-represented students of color in admissions, as well as low-income students. In addition, because of racial segregation, Black and Latino students—even those from middle-income backgrounds—attend higher poverty and less resourced schools.

To be sure, many students of color perform at extremely high standards in the face of these limitations. Yet the persistence of these inequities means that, as a country, the U.S. is continuing to under-identify and insufficiently nourish its talent.

Given these inequities, schools and universities still have a legal duty—and the opportunity—to address them. The same legal statutes and constitutional authority that the Supreme Court majority just invoked to limit race-conscious affirmative action also require that educational institutions address underrepresentation within education. The 14th Amendment, drafted by abolitionists inside and outside Congress, aims to grant full citizenship to formerly enslaved people and promote the elimination of racial caste in American democracy. In fact, the Court’s unanimous 1954 decision in Brown v. Board of Education read the 14th Amendment to forbid state-sponsored segregation in education, recognizing that access to education was necessary for full citizenship for black children. Contrary to the Supreme Court’s framing today, Brown is not a decision just about color-blindness. But regardless of the Court’s ruling, Brown creates a duty to advance substantive equality in education and in society. For that reason, the persistence of educational inequities is inconsistent with Brown’s principles.

Title VI of the 1964 Civil Rights Act, the statute at issue in the Supreme Court’s decision, would soon follow Brown. It forbids discrimination on the basis of race and ethnicity by all entities that take federal funds. This includes public institutions like UNC, as well as private institutions like Harvard. Title VI was enacted to implement Brown’s equality and citizenship vision, by allowing the federal government to terminate funds to institutions that were not meaningfully integrated. The Civil Rights Act goes on to make clear that educational institutions have an affirmative duty to create opportunity. One of the early cases enforcing Title VI in 1974 held that San Francisco school officials had to take affirmative action to provide meaningful access to and funding for bilingual education services for Chinese-American students. This case instantiates the core principle that simply refraining from discriminating or offering the same services to all children is not enough to ensure that students received a substantively equal education. A similar duty of affirmative inclusion underlies provisions for students with disabilities and Title IX, which are modeled on Title VI.

Read More: The Ambitions of the Civil Rights Movement Went Far Beyond Affirmative Action

In its ruling, the Court majority also ignored the democratic imperative that underlies Title VI. Introducing Title VI 60 years ago, President John F. Kennedy famously stated that “simple justice requires that public funds, to which all taxpayers of all races contribute, not be spent in any fashion which encourages, entrenches, subsidizes or results in racial discrimination.”

To advance inclusion as is still required by our nation’s laws, universities will need to examine how their admissions programs and practices continue to disadvantage underrepresented students of color. Institutions have to review athletic and scholarship programs, legacy and wealth preferences, and other practices that predominantly benefit high-income white students in admissions.

But this democratic imperative is not just limited to admissions. It’s crucial that educational institutions create pathways and partnerships that reach underserved students and less-resourced schools. This will mean developing programs in local elementary and secondary schools, partnerships with community colleges, and transfer policies that enable access to more resourced and selective institutions.

Indeed, improving educational access and opportunity is a project for us all. All of us can pay attention to who has access to the colleges and schools that we or our children attend and who does not. We can be aware of the policy and private choices that shape that access, and we can spend our time and devote resources to changing the inequitable structures that we see.

Addressing the societal and communal conditions that perpetuate racial and ethnic inequality in education won’t be easy. In the current polarized climate , there are political and ideological actors who are trying to stamp out efforts to promote racial and ethnic equity. Indeed, anti-affirmative action groups are challenging school integration efforts in elementary and secondary schools, even when those programs don’t explicitly mention race at all. While these challenges are based on tenuous legal arguments and go beyond even the Supreme Court’s opinion, these challenges are revealing of a disturbingly regressive vision of the future.

The Court’s opinion cannot stop well-meaning individuals and institutions from caring about racial and ethnic inequality in this country. The Supreme Court has indeed spoken on race-conscious affirmative action for now, but it’s not the end of the conversation—it’s only the beginning.

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