A majority on the US Supreme Court unraveled decades of jurisprudence on affirmative action last week by finding that Harvard University and University of North Carolina’s use of race as a factor as part of a holistic admission’s process to address inequities faced by Black and Latino students was no longer permitted. It is hard to ignore that this ruling came down days before our country celebrates its independence, given the threat that racial polarization and injustice represents to our democracy. As Justice Sotomayor noted, “the Court subverts the constitutional guarantee of equal protection by further entrenching racial inequality in education, the very foundation of our democratic government and pluralistic society.”
The scathing dissents by both Justice Jackson and Justice Sotomayor lifted up the initial promise and purpose of the 14th Amendment that was thwarted by the Supreme Court in the 19th century, culminating in the infamous decision affirming “separate but equal” in Plessy v Ferguson. Justice Jackson noted that today “[g]ulf-sized race-based gaps exist with respect to the health, wealth, and well-being of American citizens. They were created in the distant past but have indisputably been passed down to the present day through the generations.”
Both jurists found there was a profound need to continue addressing race directly.
We must turn our focus to meeting this need. As Justice Jackson eloquently stated “[e]very 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.”
There is a way forward. Indeed, the work to deepen racial equity is already underway across the country in a way that is fully within the constraints of this latest noxious Supreme Court decision. Local government is a prime example. The Government Alliance on Race and Equity (GARE) with over 450 local and state government entities as members employs an approach that is informed by the reality of racial equity gaps and strives to close them without using what the court describes as “racial classifications.” President Biden’s Executive Order on racial equity has brought that approach across the federal government.
As even Justice Kavanaugh noted, institutions “can, of course, act to undo the effects of past discrimination in many permissible ways that do not involve classification by race.” And citing the late Justice Scalia, Justice Thomas, who has shown himself to be in every way an enemy of racial justice and progress, conceded that it was permissible to take action “’undo[ing] the effects of past discrimination in [a way] that do[es] not involve classification by race,’ even though they had ‘a racially disproportionate impact.’”
This race-informed approach to policy and practice takes history fully into account and focuses on the root causes of racial equity gaps to design approaches that not only close racial equity gaps but improve systems for everyone in this country. It turns out that what is harmful to Black and Latino communities, is harmful to the rest of the country as well. And when we transform our institutions – especially our public institutions – into places that produce racial equity, everyone can benefit. For example, when librarians took up the question of why children of color were not accessing our libraries at the same levels white children were, they discovered that a major obstacle was late fines. When libraries began to eliminate those fines, we closed racial equity gaps while all children benefited — including many white children from families with modest incomes who were similarly deterred.
This approach is deeply relevant to university admissions as well where we know legacy and children of donor admissions is one of the most blatant and unjust root causes that distorts representation in our institutions of higher learning, and our higher learning sector is well-advised to wrestle with those issues of justice more deeply. Indeed, universities, philanthropy, K-12 schools, libraries, local agencies and all forms of local and national institutions should all take up race-informed approaches and double down on their commitment to a country of genuine equality, where neither race, migration, gender, sexuality, class determines your life outcomes. And as a broader society we must reject a zero-sum approach where a few prized slots are the only pathway to a better life and shared political power. Truly democratizing our country would reduce the weight of the musical chairs games of admission by ensuring there were enough seats and tables for all citizens to play an important role.
While we fight forward and continue the long struggle for racial equity and justice by all the means available to us, we must also fight back. Our judicial institutions are important, and confidence in the Supreme Court has sunk to historic lows. We must demand reform of the court as a matter of the greatest urgency and reclaim a vision of a Supreme Court embodied by Justice Jackson and Justice Sotomayor dissenting opinions. Their dissents represent the future of a legitimate court that can represent all Americans.