Colleges are preparing for the beginning of the end of affirmative action
Affirmative action in higher education has survived by relying on moderate justices like Sandra Day O’Connor, only for Donald Trump and the Senator to reshuffle the court. Mitch McConnell (R-Ky.). The need for negotiations is over on an issue that sharply divides Chief Justice John Roberts from liberal justices, especially Sonia Sotomayor. And repealing the policy could also open up broader legal attacks on the use of affirmative action in employment.
Bloom’s group, which says it represents about 20,000 students, asked the High Court to overturn its ruling in Grutter v. Bollinger, a landmark 2003 decision that allowed colleges to consider race and use holistic reviews as long as their affirmative action programs were narrowly tailored.
It’s a move that education and rights groups fear will worsen inequality for years to come. They point to race-neutral college admissions policies in California, Michigan and other states where the practice is outlawed, and diversity has declined. They say the race-based admissions standard doesn’t take into account discrimination and other barriers black and brown students often face.
“There is no viable alternative to achieving the kind of diversity that we have today and have had for decades,” said Lee Bollinger, president of Columbia University and chief defendant in the Bigger.
Tumbling Bigger will be a setback not only for higher education, he said, but for all sectors.
“It would bring us into a new era where we would return to societal efforts to address issues of racial injustice that are part of our history — and tragically so — and continue to this day,” he said.
Most voters also see positive actions in colleges. Recently A POLITICO/Morning Consult poll, conducted in mid-October, found that 39 percent of voters believed that the advantages of race-based affirmative action in education for “minority groups” outweighed the disadvantages for others.
But some of Bloom’s allies think the programs are short-sighted.
“Race-conscious admissions policies not only seriously harm Asian American communities, but have also failed to help blacks and Hispanics,” the Asian American Education Coalition said in a statement. “It is at best a ‘help’ that hides rather than addresses the real causes of the lack of diversity on many college campuses.”
Here are three things to know as the Supreme Court weighs the future of race in college admissions:
Sotomayor and Roberts clashed over it before
Sotomayor is the only high court justice to rule in favor of race-conscious admissions Fisher v. University of Texas, Bloom’s previous attempt to ban it from higher education. She made her position clear, often saying she was “a product of affirmative action.”
Perhaps the clearest example of the first Latin American justice’s views on affirmative action in higher education is her 58-page dissent in the case in which the Supreme Court upheld the Michigan constitutional amendment prohibition of practice when enrolling in public universities. The 2014 case became a defining moment in Sotomayor’s tenure, as she chose to read her dissent from the bench for the first time — a sign of the fiercest opposition.
He also sparred with Roberts over past affirmative action decisions.
In the opinion of the chief judge from 2007 in Parents Involved in Local Schools v. Seattle School District No. 1, Roberts was skeptical of how the K-12 school system was trying to address segregation.
“The way to stop discrimination on the basis of race is to stop discrimination on the basis of race,” Roberts wrote, two years before Sotomayor was appointed to the high court.
Years later, in a 2014 dissent read by Sotomayor from the bench, she called the majority opinion written by Roberts “feeling out of touch with reality” — and paraphrased his famous phrase.
“The way to stop discrimination based on race is to talk openly and honestly about race, and to apply the Constitution with eyes open to the unfortunate consequences of centuries of racial discrimination,” she wrote.
To which Roberts replied: “It is not ‘out of touch’ to conclude that racial preferences may themselves have the debilitating effect of heightening that very suspicion, and — if so — that preferences do more harm than good.”
At least one justice is ready to be overthrown Bigger
Justice Samuel Alito wrote a dissenting opinion in Fisher and he was joined by Roberts and Clarence Thomas. They believed that the University of Texas’ admissions program was not sufficiently narrowly tailored and that they had not considered race-neutral alternatives.
But Thomas wrote a separate one-page dissent to declare that the use of race in admissions decisions is “categorically prohibited by the Equal Protection Clause.”
“The court was wrong to conclude otherwise Grutter v. Bollinger,” he wrote. “I would reject the decision Bigger.”
But the cases the Supreme Court hears Monday will be the first time justices have been asked directly whether race-conscious confessions should be thrown out, said David Hinojosa, director of the Educational Opportunity Project at the Lawyers’ Committee for Civil Rights. Hinojosa is expected to argue on behalf of the student intervenors in the UNC case.
Justices Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett have yet to rule on the case involving race in admissions. They also did not rule on any cases as appellate judges, but are central figures in its future.
“Many of the judges on the docket overturned other important decisions,” Hinojosa said, alluding to the Dobbs v. Jackson decision overturned this summer Roe v. Wade. But he said the court’s reasoning to overturn precedent in that case did not apply to UNCs.
“We feel that at the end of the day we will be on the right side, because it is very difficult to reverse the decision,” he said. “Given the reliance of interests on race-conscious recognitions over the past 40 years and how they relate to the original intent of the Equal Protection Clause in the 14th Amendment, we believe that this will make it much more difficult for the court to try to rationalize overturning… Bigger.”
Faculties and lawyers are planning a new admissions strategy
Higher education groups prepare to end race-based admissions policies.
“I would be less than honest if I said I was optimistic,” said Paulette Granberry Russell, president of the National Association of Diversity Officers in Higher Education. Bigger‘s prospects before the Supreme Court. Her pessimism, she said, was fueled by the composition of the court and its recent decision “to ignore 50 years of precedent” in Dobbs the case.
While the Supreme Court could erase race from college admissions, admissions counselors work on best practices to increase employment among students of color.
Some university leaders in states where affirmative action is already outlawed, such as Arizona and California, say the decision is being overturned Bigger it won’t affect their admissions processes, and they have ways to make sure their student body is diverse, such as making sure low-income students have enough help to get into their schools.
“It’s not going to change much about how we operate at the University of California because we’re already an anti-affirmative action state,” said Kim Wilcox, chancellor of the University of California, Riverside. “But again, it’s another case where America is challenged and we can’t sit back and say it’s not affecting us, because it’s affecting us as a nation.”
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