Right-wing Supreme Court takes up challenge to affirmative action

Right-wing Supreme Court takes up challenge to affirmative action
U.S. Supreme Court, 2021

The U.S. Supreme Court on Monday agreed to hear a pair of affirmative action cases related to college admissions, giving its right-wing supermajority an opportunity to strike down race-conscious selection policies in higher education.

Both cases, taking aim at the policies of Harvard and the University of North Carolina, were brought by Students for Fair Admissions, a group founded by the conservative legal strategist Edward Blum. The high court has consolidated the cases.

Though the Supreme Court has previously allowed affirmative action policies to stand—most recently in 2016—the current makeup of the court is fueling concerns about a new course, whether the case is heard during this or the next term.

As writer and podcaster Touré tweeted in response to the decision: "RIP affirmative action."

Slate staff writer Mark Joseph Stern, who covers the U.S. legal system, pointed out that "like so many other grants this term, the affirmative action cases illustrate how Republicans have outsourced large chunks of their agenda to the federal judiciary and the Supreme Court, which now serves as the nation's most powerful policymaking body."

"Rather than expend time and energy prohibiting affirmative action through the democratic process," he added, "Republicans captured a sufficient portion of the federal judiciary—including the Supreme Court—to ensure that their judges will do it for them."

Democrats now control both chambers of Congress and the White House, but during former President Donald Trump's tenure, he and then-Senate Majority Leader Mitch McConnell (R-Ky.) worked to reshape the federal judiciary with more than 200 appointees, including Supreme Court Justices Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett.

NPR's Nina Totenberg noted that "starting in 1978, the Supreme Court has upheld the constitutionality of affirmative action programs three times. In each of these cases, the court's controlling opinion was authored by a traditionally conservative justice."

However, she explained, "three of the justices who voted against affirmative action in 2016—Chief Justice John Roberts, and Justices Clarence Thomas and Samuel Alito—are still on the court, and they now have been joined by three Trump-appointed conservatives."

Both Harvard and UNC won in federal trial courts, and the former's case was affirmed by an appeals court. The New York Times' Adam Liptak highlighted the potential significance of the nation's highest court deciding to take up both challenges:

The Supreme Court's decision to hear both cases may have been influenced by the differing legal regimes that apply to the two schools. Harvard, a private entity, must comply with a federal statute that bans race discrimination as a condition of receiving federal money; the University of North Carolina, which is public, must also satisfy the Constitution's equal protection clause.

Warning that the court's upcoming decision "could have a wide-ranging effect," HuffPost editor-in-chief Danielle Belton shared in a series of tweets Monday how affirmative action made a difference for her father's aerospace career and their family.

"There is this mistake people make when talking about affirmative action, that it 'rewards' unqualified people based on their race," Belton wrote. "This couldn't be further from the truth. It merely opens a historically closed door to level an uneven playing field."

"How could my father compete with a system that rewarded nepotism and protected only those who'd always had access to power? The reality is, even with a college degree, he couldn't. Affirmative action had to happen," she continued.

"Because my father was able to have his career in aerospace, he could afford a home and raise a family alongside my mother. He could get us into good public schools and put all his daughters through college, leading to our future successes," Belton added. "Without programs like affirmative action, my whole life could have gone in an entirely different direction."

The Lawyers' Committee for Civil Rights Under Law represents Harvard and UNC students and alumni who helped defend their policies. The group's president and executive director, Damon Hewitt, vowed to keep up the fight in a statement Monday.

"Selective universities like Harvard and UNC-Chapel Hill have long struggled to admit students of color, who have over time been excluded for access to elite institutions and are historically marginalized," Hewitt said. "Race-conscious admissions policies are a critical tool that ensures students of color are not overlooked in a process that does not typically value their determination, accomplishments, and immense talents."

"We will vigorously defend access and opportunity in higher education," he added, "alongside a diverse coalition of students of color, including our incredible clients whose testimony about their experiences on campus served as the cornerstone for the lower courts' favorable decisions in both of these cases."

NAACP Legal Defense and Educational Fund (LDF) president and director-counsel Sherrilyn Ifill similarly asserted Monday that "holistic, race-conscious admissions programs" not only enable universities to "bring together people of different backgrounds to learn from one other" but also "help mitigate systemic barriers to educational opportunities faced by many Black students and other students of color, ensuring that all hard-working and qualified applicants receive due consideration."

"Further, the court's decision today comes amidst the backdrop of widespread efforts to erase and deny the experiences of people of color," Ifill said. "As our country experiences a resurgence of white supremacy, it is as important now as ever before that our future leaders be educated in a learning environment that exposes them to the rich diversity that our country has to offer, so they may be fully prepared for the many challenges ahead."

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