Ketanji Brown Jackson’s dissent led a cacophony of outcry from lawmakers, civil rights groups, K-12 and higher education advocates against a historic Supreme Court decision on race.
Against the backdrop of the hazy smog settled around the Supreme Court on Thursday as Washington choked through a Code Red air quality alert, a different type of alarm wailed for liberals and social justice advocates as the court’s conservative majority overturned decades of precedent with a pair of opinions that bar the use of race in college admissions.
They didn’t have to look far for a champion.
“With let-them-eat-cake obliviousness, today, the majority pulls the ripcord and announces ‘colorblindness for all’ by legal fiat,” Justice Ketanji Brown Jackson wrote in a searing rebuke of one of those decisions involving the University of North Carolina.
“But deeming race irrelevant in law does not make it so in life,” the newest Supreme Court justice continued in a dissent more heartfelt than legalistic. “And having so detached itself from this country’s actual past and present experiences, the Court has now been lured into interfering with the crucial work that UNC and other institutions of higher learning are doing to solve America’s real-world problems. No one benefits from ignorance.”
In a narrative that traced systemic racism from slavery to sharecropping, through vagrancy laws to Jim Crow, the Great Migration northward, disparate tax-system treatment, the deliberate placement of toxic-waste facilities and highways in Black communities, gaps in health care and access to quality education, Jackson flipped the script on the majority’s opinion, pointing out all the ways in which the America’s government was established and continues to operate with a preference for its white citizens.
“For present purposes, it is significant that, in so excluding Black people, government policies affirmatively operated – one could say, affirmatively acted – to dole out preferences to those who, if nothing else, were not Black,” she wrote. “Those past preferences carried forward and are reinforced today.”
“I could not possibly discuss every way in which, in light of this history, facially race-blind policies still work race-based harms today,” she continued. “The point is this: Given our history, the origin of persistent race-linked gaps should be no mystery. It has never been a deficiency of Black Americans’ desire or ability to, in Frederick Douglass’s words, ‘stand on [their] own legs.’ Rather, it was always simply what Justice [John Marshall] Harlan recognized 140 years ago – the persistent and pernicious denial of ‘what had already been done in every State of the Union for the white race.’”
“History speaks. In some form, it can be heard forever. The race-based gaps that first developed centuries ago are echoes from the past that still exist today. By all accounts, they are still stark.”
At issue are two cases stemming from lawsuits against Harvard University and UNC, which argue that certain admissions policies aimed at increasing diversity and leveling the playing field for historically disadvantaged populations discriminate against Asian American applicants.
The case against Harvard, from which Jackson recused herself and Justice Sonia Sotomayor wrote the dissent, contends that its admissions policy discriminates against Asian American applicants. The case against UNC contends that it discriminates against white and Asian American applicants. Both schools rejected those claims and defended their use of race as one of several factors that go into admission decisions. Barring the practice, they argued, would result in a significant drop in the number of minority students on campus.
The court split on ideological lines, 6-2 in the case against Harvard and 6-3 in the case against UNC.
In writing for the majority, Chief Justice John Roberts concluded that the admissions policies violate the Equal Protection Clause because they fail to offer “measurable” objectives to justify the use of race, that they involve racial stereotyping and have no specific end point.
“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,” Roberts wrote. “We have never permitted admissions programs to work in that way, and we will not do so today.”
The watershed moment comes as the country grapples with entrenched divisions over the historic impact of systemic racism and as institutions of higher education struggle to expand access to students of color in the wake of a once-in-a-generation pandemic that decimated their enrollment.
Echoing Jackson’s 29-page dissent was a cacophony of outcry from lawmakers, civil rights groups, K-12 and higher education advocates and beyond.
“By delivering a decision on affirmative action so radical as to deny young people seeking an education equal opportunity in our education system, the Supreme Court has thrown into question its own legitimacy,” the Congressional Black Caucus said in statement said that also pledged to “push back strongly” against attempts to use the decision “as a cultural wedge issue to pit communities of color against one another.”
NAACP President and CEO Derrick Johnson slammed the Supreme Court for bowing “to the personally held beliefs of an extremist minority.”
“We will not allow hate-inspired people in power to turn back the clock and undermine our hard-won victories,” he said. “The tricks of America’s dark past will not be tolerated. Let me be clear – affirmative action exists because we cannot rely on colleges, universities, and employers to enact admissions and hiring practices that embrace diversity, equity and inclusion.”
“Race plays an undeniable role in shaping the identities of and quality of life for Black Americans,” he said. “In a society still scarred by the wounds of racial disparities, the Supreme Court has displayed a willful ignorance of our reality.”
The Thurgood Marshall College Fund, which supports historically Black colleges and universities, urged policymakers and business leaders to use the Supreme Court’s decision as a call to action to boost efforts to better fund and recruit from HBCUs, whose enrollments have been growing in recent years.
“Today’s decisions by an out-of-touch and hyper-conservative Supreme Court are yet more evidence that the court is not working for all of us,” said Becky Pringle, president of the National Education Association, the country’s largest teachers union.
“Racism and discrimination are not just artifacts of American history but continue to persist in our society, including our schools, colleges and universities,” she said. “Affirmative action and programs like it expand higher education opportunities to those who have been historically denied a fair shot.”
The decisions almost certainly mean a drop in enrollment in elite colleges and universities among Black and Hispanic students at a time when their enrollment has declined among students of color in the wake of the coronavirus pandemic. The National Student Clearinghouse reported recently that enrollment has declined for Black students by nearly 7%, including 9.4% at public colleges and universities since 2020, prior to the pandemic.
College administrators and civil rights advocacy groups alike say they don’t have to look far to understand the significant impact the opinions will have on enrollment rates for students of color.
After California voters adopted Proposition 209 in 1996, which barred public colleges and universities from using affirmative action in admissions, Black enrollment at UCLA and UC Berkeley dropped from 7% to 3%, and roughly 10,000 Black and Latino students disappeared from the University of California system altogether.
California is one of nine states that have banned the use of race in admissions policies at public colleges and universities, the others being Arizona, Florida, Idaho, Michigan, Nebraska, New Hampshire, Oklahoma and Washington. Similar drops in enrollment occurred in other states, too. In Michigan, for example, the share of Black students enrolled at the University of Michigan dropped from about 7% in 2006 to just under 4% in 2021 – a period of time in which the share of Black college-aged Michigan residents rose from 16% to 19%.
“Gulf-sized race-based gaps exist with respect to the health, wealth, and well-being of American citizens,” Jackson wrote in her dissent. “They were created in the distant past, but have indisputably been passed down to the present day through the generations. Every moment these gaps persist is a moment in which this great country falls short of actualizing one of its foundational principles – the ‘self-evident’ truth that all of us are created equal.”
The sharp dissent from Jackson, the first Black woman and first former federal public defender in the high court, represented a capstone moment of her first term, displaying the racial justice underpinning of her placement on the court.
“The best that can be said of the majority’s perspective is that it proceeds (ostrich-like) from the hope that preventing consideration of race will end racism. But if that is its motivation, the majority proceeds in vain,” Jackson wrote. “If the colleges of this country are required to ignore a thing that matters, it will not just go away. It will take longer for racism to leave us. And, ultimately, ignoring race just makes it matter more.”
Source : usnews
