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This ruling effectively curtails affirmative action at colleges and universities around the nation, a policy that has long been a pillar of higher education in the United States.
As per NYT, it is expected to set off a scramble as schools revisit their admissions practices, and it could complicate diversity efforts elsewhere, narrowing the pipeline of highly credentialed minority candidates and making it harder for employers to consider race in hiring.
Affirmative action was never a complete answer in the drive towards a more just society. But for generations of students who had been systematically excluded from most of America’s key institutions—it gave us the chance to show we more than deserved a seat at the table.
In the… https://t.co/Kr0ODATEq3
— Barack Obama (@BarackObama) June 29, 2023
It comes on the back of multiple other rulings over the past year, where the Supreme Court’s conservative majority has upended decades of jurisprudence defining American life on a host of politically polarising issues, from abortion rights to guns.
The two cases
Both the cases were filed by a group called Students for Fair Admissions, founded by anti-affirmative action activist Edward Blum in 2014. Over the years, Blum has filed many lawsuits challenging race-conscious admissions policies and voting rights laws, several of which have reached the Supreme Court.
In the North Carolina case, the plaintiffs said that the university discriminated against white and Asian applicants by giving preference to Black, Hispanic and Native American ones. They alleged that the adoption by UNC, a public university, of an admissions policy that is not race neutral violates the guarantee to equal protection of the law under the Constitution’s 14th Amendment.
The case against Harvard, made the same allegation, in addition to also accusing the university of discriminating against Asian American students by using a subjective standard to gauge traits like likability, courage and kindness, and by effectively creating a ceiling for them in admissions.
Students for Fair Admissions argued that Harvard, a private university, violated Title VI of a landmark federal law called the Civil Rights Act of 1964, which bars discrimination based on race, colour or national origin under any program or activity receiving federal financial assistance.
Both the universities’ lawyers argued that affirmative action was legal and had the support of long-standing Supreme Court precedents. Most recently, the Supreme Court had upheld affirmative action-based admissions programs in 2016, saying that race could be used as one factor among many in evaluating applicants.
The cases reached the Supreme Court after both the universities received favourable verdicts in federal trial courts, with the Harvard decision also being affirmed by a federal appeals court.
What the apex court said
The UNC ruling saw a 6-3 split with all three liberal judges in dissent. The Harvard ruling saw a 6-2 split with Justice Ketanji Brown Jackson being rescued.
Chief Justice John Roberts, writing for the majority said, “Harvard and UNC admissions programs cannot be reconciled with the guarantees of the Equal Protection Clause,” referring to the US Constitution’s promise of equal protection under the law.
Roberts said that students “must be treated based on his or her experiences as an individual not on the basis of race. Many universities have for too long done just the opposite. And in doing so, they have concluded, wrongly, that the touchstone of an individual’s identity is not challenges bested, skills built, or lessons learned but the colour of their skin. Our constitutional history does not tolerate that choice.”
However, Roberts reiterated that universities were not prohibited from considering an applicant’s discussion of how race affected his or her life, be it through discrimination, inspiration, or otherwise.
In her dissent, Justice Sonia Sotomayor said in a dissent that the decision “subverts” the constitutional guarantee of equal protection and further entrenches racial inequality in education.
“Today, this Court stands in the way and rolls back decades of precedent and momentous progress,” she wrote in a dissent joined by Justices Jackson and Elena Kagan.
Justice Sotomayer added that the “court cements a superficial rule of colorblindness as a constitutional principle in an endemically segregated society where race has always mattered and continues to matter.”
Race and affirmative action in the United States
Much like reservations in India, affirmative action in the United States has been a polarising topic. Liberals argue that it is a supremely important tool to provide racial and ethnic minorities opportunities that they have been historically denied.
On the other hand, conservatives claim that giving advantages to one race is unconstitutional regardless of the motivation or circumstances, going against the principle of equality in the United States. Some have even argued that with the US’s increasing diversity, affirmative action “is not required” anymore.
Affirmative action was introduced in the United States under the administration of President Lyndon Johnson (1963–69) in order to improve opportunities for African Americans while civil rights legislation was dismantling the legal basis for discrimination. The first federally instituted affirmative action policies came in under the landmark Civil Rights Act of 1964 and an executive order in 1965.
However, as early as the 1970s, affirmative action was already facing legal challenges, with critics calling it “reverse discrimination”. The first major challenge was Regents of the University of California v. Bakke (1978), in which the U.S. Supreme Court ruled (5–4) that quotas may not be used to reserve places for minority applicants if white applicants are denied a chance to compete for those places. However, this decision allowed colleges to use race as a factor of admission.
Over the 1980s and 1990s, however, the apex court gave increasing weight to claims of ‘reverse discrimination’ and significantly curtailing affirmative action policies. However, in the landmark Bollinger decisions of 2003, the Supreme Court reaffirmed constitutionality of affirmative action.
The last major challenge to affirmative action came in 2016, where the Supreme Court headed by Chief Justice Anthony Kennedy upheld an admissions program at the University of Texas at Austin, holding that officials there could continue to consider race as a factor in ensuring a diverse student body.
The SCOTUS’s rightward shift
The Supreme Court has shifted rightward since 2016 and now includes three justices who dissented in the University of Texas case and three new appointees by former Republican President Donald Trump.
This has led to some extremely controversial decisions, notably the overturning of the landmark Roe vs Wade (1973) verdict in 2022 which protected a pregnant individual’s liberty to have an abortion. This has consequently led to multiple states – ruled by the conservative Republican party – to outrightly ban abortion and others to significantly restrict womens’ access to it.
As Justice Brown Jackson wrote in her dissent today, “deeming race irrelevant in law does not make it so in life.” Institutional racism exists. It must be combatted. I urge colleges and universities to remain committed to recruiting and enrolling students of color.
— Bernie Sanders (@SenSanders) June 29, 2023
This latest verdict is expected to set off yet another political firestorm in the US.
“The Supreme Court ruling has put a giant roadblock in our country’s march toward racial justice,” said Democratic US Senate Majority Leader Chuck Schumer in a statement.
Former President Barack Obama tweeted: “Affirmative action was never a complete answer in the drive towards a more just society. But for generations of students who had been systematically excluded from most of America’s key institutions—it gave us the chance to show we more than deserved a seat at the table. In the wake of the Supreme Court’s recent decision, it’s time to redouble our efforts.”
(With inputs from The New York Times, Reuters)
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