Affirmative Action Still Alive in U.S. Here’s the ‘Flip Side’ Hardly Anyone Talks About

Many Americans think affirmative action is dead as a skeleton.

Not quite.

There are remnants of diversity allowable in decision-making. To make it work it takes strategy and a rewrite of policy admissions.

That’s all it takes.

Reading through the fine print of the U.S. Supreme Court decision and if read correctly the information proves affirmative action altogether may be wounded a bit. But it hasn’t ended.

While the Supreme Court’s 6-3 decision effectively outlawed race-based preferences in college admissions, it did not outlaw the consideration of race in any context.

In SFFA v. Harvard, Chief Justice John Roberts, writing for the majority, emphasized that “[n]othing in this opinion should be construed as prohibiting universities from considering an applicant’s discussion of how race affected his or her life,” whether that be through discrimination, inspiration, or any other means.

Chief Justice John Roberts. Public Domain image by Steve Petteway.
Chief Justice John Roberts. Public Domain image by Steve Petteway.

U.S. Supreme Court Chief Justice John Roberts wrote the Majority Opinion in Harvard & University North Carolina Affirmative Action Cases

What this means is that schools can still diversify their student bodies, yet they cannot rely directly on skin color to make decisions. Overall, though, the strategy to diversify without plunging into the lake of fire centered on skin color will involve some legal maneuvering and imagination, but it is possible. The new objective for institutions is to ensure that the next generation of employees and leaders is as varied as possible.

Chief Roberts held that Harvard and the University of North Carolina’s race-conscious affirmative action programs violated the equal protection clause of the Constitution and Title VI of the Civil Rights Act.

Journalists, legal analysts, and the right-wing media pounced on Roberts’ translucent language like a hungry lion to declare that he had effectively ceased the consideration of race in college admissions, rejected previous rulings on affirmative action, and declared that diversity is no longer a compelling interest.

Not true.

That’s a misinterpretation of Roberts’ reasoning.

Iván Espinoza-Madrigal, director of the Lawyers for Civil Rights in Boston, said, in an article published by the Boston Globe, “We are seeing an extremely narrow ruling focused on the admissions process.” The admissions policies at Harvard, UNC, and other universities may need to be reviewed and possibly altered as a result.

Espinoza-Madrigal emphasized that this was not a blanket opposition to affirmative action.

Anderson & Kreiger lawyer and public sector law expert Mina Makarious agreed, saying the verdict is “not great but could have been worse.”

However, he expects increasing scrutiny of diversity efforts on the part of his clients, which include government organizations and municipalities.

Affirmative Action Still Alive in U.S. Here's the 'Flip Side' Hardly Anyone Talks About 1

Time will tell, Makarious added if those who would have challenged other race-conscious projects will use this decision as an opportunity to silence even discussion of them. Consider the viewpoint of governmental agencies or smaller enterprises that might be implementing a DEI initiative: “They won’t have the Harvard endowment behind them to litigate the case.”

The issue in both cases, hinged on whether both schools, Harvard and the University of North Carolina, could consider race as one of several factors consistent with the Supreme Court’s previous decisions, including the 2003 ruling in Grutter vs Bollinger. In a 5-4 decision vote in Grutter, the court dutifully held that the Equal Protection Clause of the U.S. Constitution didn’t forbid a law school’s use of race in admissions decisions.

American Bar Association (ABA) had filed an amicus brief with the Supreme Court asking the justices to uphold its prior decisions which allowed race as one of many factors in the higher education admissions program.

“Eliminating race-conscious admission policies would inflict great harm on the legal profession and the nation,” the ABA brief said. “Such policies play a vital role in eliminating the taint of racism. These admissions policies also ensure a more racially diverse judiciary,” the ABA wrote.

 Affirmative Action Protestors. youtube screenshot.
Affirmative Action Protestors. youtube screenshot.

U.S. Supreme Court Justices Issued First Landmark Ruling Allowing Race Factor in College Admissions

Regents of the University of California v. Bakke (1978), the Supreme Court determined for the first time that racial considerations might be used in admissions to universities and professional schools. Justice Lewis Powell wrote that while universities may not use quotas or other crude methods, they could consider race as part of a more comprehensive application of criteria.

This ruling was previously upheld in the 2003 case of Grutter v. Bollinger, which involved a law school in Michigan, and again in the 2016 case of Fisher v. University of Texas at Austin. However, Anthony Kennedy and Sandra Day O’Connor, who played crucial roles in both instances, are no longer serving on the Supreme Court.

By thoroughly reading the opinion, you won’t find Roberts saying anything remotely like “Diversity is no longer a compelling interest.” Equally, he did not say that racial considerations would never be taken into account when making admissions decisions.

The benefits of diversity in education that Harvard and UNC have touted, he said, “Are commendable goals, but not sufficiently coherent for purposes of strict scrutiny.”

Roberts denounced the process of “producing new knowledge stemming from diverse outlooks” as being too ambiguous to justify diversity as a compelling interest.

However, he did not abandon the principle of diversity itself.

Grutter v. Bollinger Still Exists Favorably in Affirmative Action

Grutter v. Bollinger, a case from 2003 that upheld the use of race in admissions, is still solid law if you interpret it correctly; diversity is still a compelling interest; and the restricted use of race is still permitted. Certainly, universities will need to alter their admissions practices after the Harvard scandal. I will argue, however, that affirmative action is still very much alive.

Still, overall, it’s important to address a peculiar, even unsettling, facet of Roberts’s view.

In his view, there is something, or rather someone, missing. Anyone reading the opinion will note how Roberts hardly refers to the Asian American plaintiffs in a case alleging racial discrimination.

The chief justice makes no mention of the discrimination allegation made by Asian Americans in his issue statement, and Asian Americans are not at the heart of the court’s analysis or its decision.

He primarily brings up Asian Americans to stress that the notion of “race” is subjective. Only a few footnotes address the claims made by Asian Americans. A casual reader of the ruling and the case materials would have no way of knowing that Asian Americans were at issue. In Roberts’s telling, Asian Americans no longer exist.

While the decision was disheartening it was largely anticipated in two challenges that challenged the role of race in Harvard and UNC’s admissions processes.

The possibility that a landmark Supreme Court verdict would automatically end affirmative action on every level in the U.S. was the liberal’s biggest and haunting concern. The irresistible recurring thought was: no more initiatives promoting diversity, equity, and inclusion.

Historical Beginnings: How Affirmative Action Impacted Racial Discrimination

The primary goal of affirmative action, dating back to the Kennedy-Johnson administration, was to help African Americans recover from the impact of 300 years of slavery and Jim Crow laws. Many elite universities actively targeted black applicants for entry consideration. Few young men and women of color were able to meet the entry standards because of the low quality of public schools that were still divided north and south.

Ivy League colleges accepted many students with the expectation that they would eventually succeed academically and offered not only financial aid but also tutoring and remedial classes. Many of these admitted students ended up thriving at their respective schools.

Justice Sonya Sotomayor is one such person who openly describes herself as an “affirmative action baby.” She claims that without the assistance of these programs, she would not have been accepted to either Princeton or Yale Law School.

However, several events transpired in a relatively short time frame. Women, Latinos, and those with disabilities were among the other groups that demanded reparation initiatives.

Academic institutions began actively seeking diversity as a means of making amends for past wrongs, with the assumption that all students would benefit from having teachers and students of all races, genders, and ethnicities. The majority of the academic community agrees that a more diverse student body is beneficial.

Justice Clarence Thomas wrote in a concurring judgment that he would like to see racial preferences eliminated. Thomas, the lone justice of color to side with the majority, wrote, “I write separately to offer an originalist defense of the colorblind Constitution” to clarify that all forms of discrimination based on race, including so-called affirmative action, are prohibited under the Constitution and to emphasize the pernicious effects of all such discrimination.

Justice Ketanji Brown Jackson defended affirmative action and gave a scathing critique of her colleagues who disagreed with her in her dissenting opinion.

She said that the majority had pulled the ripcord and declared “colorblindness for all” by judicial fiat with a “let-them-eat-cake” attitude. But just because the law says race doesn’t matter doesn’t mean it does.

Meanwhile, Justice Sonia Sotomayor’s dissenting opinion became a call to arms.

She argued that “society’s progress toward equality cannot be permanently halted,” despite the decisions of the Supreme Court. The United States is home to the world’s most diverse and multicultural population, and this diversity has become a core value for the country. The push for multiculturalism will continue.

The truth lies therein. Now is the time to double down on diversity policies, not back down from them, if you believe that our country, colleges, organizations, and businesses are stronger and richer when everyone gets the chance to participate.

This is the moment that separates those who have simply been going through the motions from those who are prepared to fight for a more equitable world. It’s a chance to reflect on why we’re still here fighting.

Peter Hurst, who is Black, attended prestigious institutions like Duke University and Harvard Law School. The break he got made all the difference in his life.

Hurst told the Boston Globe, “It affects everything,” Hurst, head of the Greater New England Minority Supplier Diversity Council, said. “It’s not just about what’s in it for me; it’s about what’s in it for society to allow someone like me to do good. It’s not just the person who benefits, but society as a whole.”

According to Hurst, this ruling presents an opportunity to start over in terms of discussing race.

Houston Today News Reporter and Editor Clarence Walker can be reached at [email protected]

Clarence Walker
As an analyst and researcher for the PI industry and a business consultant, Clarence Walker is a veteran writer, crime reporter and investigative journalist. He began his writing career with New York-based True Crime Magazines in Houston Texas in 1983, publishing more than 300 feature stories. He wrote for the Houston Chronicle (This Week Neighborhood News and Op-Eds) including freelancing for Houston Forward Times.Working as a paralegal for a reputable law firm, he wrote for National Law Journal, a publication devoted to legal issues and major court decisions. As a journalist writing for internet publishers, Walker's work can be found at American, Gangster Inc., Drug War Chronicle, Drug War101 and Alternet.His latest expansion is to News Break.Six of Walker's crime articles were re-published into a paperback series published by Pinnacle Books. One book titled: Crimes Of The Rich And Famous, edited by Rose Mandelsburg, garnered considerable favorable ratings. Gale Publisher also re-published a story into its paperback series that he wrote about the Mob: Is the Mafia Still a Force in America?Meanwhile this dedicated journalist wrote criminal justice issues and crime pieces for John Walsh's America's Most Wanted Crime Magazine, a companion to Walsh blockbuster AMW show. If not working PI cases and providing business intelligence to business owners, Walker operates a writing service for clients, then serves as a crime historian guest for the Houston-based Channel 11TV show called the "Cold Case Murder Series" hosted by reporter Jeff McShan.At NewsBlaze, Clarence Walker expands his writing abilities to include politics, human interest and world events.Clarence Walker can be reached at: [email protected]