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The Erasure of Affirmative Action

SCOTUS - The erasure of race conscious admissions used in public and private universities began to its certain erasure today, October 31, 2022.

For five hours, the United States Supreme Court heard arguments on the matter of Students for Fair Admissions v. President and Fellows of Harvard College and Students for Fair Admissions v. University of North Carolina. 

Given the questions and significant concerns asked by the Justices of this Supreme Court, and, by the public comments made by the six conservative Supreme Court Justices and their loathing of affirmative action, it has been a common agreement amongst academics, civil rights and educational activists that these two cases before the Supreme Court are the cases that will dismantle affirmative action. 

The only question that remains from now until June, 2023, when the Supreme Court’s decision is expected to be announced, is just how extreme this Supreme Court decision will transform into; will the ruling to dismantle race-conscious policies and considerations reach all aspects of society.

For five hours on Halloween day, October 31, those concerns affected by the possible extreme ruling of this Supreme Court to dismantle any and all race-conscious policies and programs, were discussed. Other efforts to achieve even a modicum of diversity, such as the attempts to diversify the military to ensure racial equality, the consideration of university scholarships designed specifically for students of color, workplace diversity and inclusion policies, to the merits and demerits regarding reparations to slavery, were discussed. 

“The way to stop discrimination on the basis of race is to stop discriminating on the basis on race,” is the calculation Chief Justice Roberts used in a 2007 ruling that sought to establish the color-blind theory of constitutionalism as the centerpiece of the Roberts court.

The Chief Justice and the conservative supermajority of the court has not wavered from that very flawed perspective. Roberts and his supporters return to the 14th Amendment clause to justify their claim that the Constitution is color-blind, or, race-neutral. 

The mythical “race-neutral” 14th Amendment invocation, first presented by Edwin Reese III, attorney general of the Reagan administration, is the fallacy that the 14th Amendment is a prohibition on discriminatory state action and that it is not an obligation to engage in affirmative discrimination in favor of some groups over others.

This false claim–a boon to the white supremacist talking points of today–demonstrates that this Supreme Court is very open to the re-examination and revoking of any claim to past, present and future systemic discrimination. 

Race remains recognized in this society and the Constitution is not colorblind. Justice Kentanji Brown, in last month’s oral arguments regarding the Alabama gerrymandering of voting districts, debunked that myth. “I don’t think that the historical record establishes that the founders believed that race neutrality or race blindness was required. The entire point of the amendment was to secure the rights of the freed former slaves,” Justice Brown succinctly clarified the question on the 14th Amendment.

After the rulings of their inaugural term that ended June, 2022, this Supreme Courts’ Justice Alito and Chief Justice Roberts gave several speaking engagements to whine about how the country does not support their illegitimate court. The smug and skeptical remarks of the conservative supermajority were left to a minimum, but the combative contempt some of the justices hold on affirmative action were on clear display. 

Supreme Court Justice Clarence Thomas stated, “I’ve heard the word diversity quite a few times, and I don’t have a clue what it means. It seems to mean everything for everyone.”

Supreme Court Justice Alito, the justice who quoted from a 14th century English jurist regarding witchcraft trials to justify outlawing abortion in the Dobbs case, did not disappoint with his trademark casual cruelty. 

His statement that affirmative action is a “zero-sum game,” that one group wins in the admissions process at the expense of another group, cemented his position that he is just not interested in the historic gains made by affirmative action policy and programs, and after delivering his catchy phrase of the “zero-sum game” of race-conscious admissions, he is eager and ready to erase race-conscious policies and programs.

Perhaps it was the question that Justice Elena Kagan posed to the other justices that was most revelatory. “It just doesn’t matter if our institutions look like America,” Kagan asked the other jurists. “I guess what I’m asking you is, doesn’t it?” 

Sadly, it does not matter to the supermajority super conservative jurists if the universities reflect the diversity of America. 

As expected by the court, there were thousands of amicus briefs filed over the summer extolling the strength of affirmative action–how affirmative action programs needed to maintained and expanded. John F. O’Connor, Oklahoma’s attorney general, acting on behalf of Oklahoma and several other states that share his view of government overreach, had a novel take on the race-conscious admissions issue. “The University of Oklahoma is just as diverse today (if not more so) than it was when Oklahoma banned affirmative action in 2012.” 

Therefore, according to Attorney General O’Connor, historic and systemic discrimination does not exist in Oklahoma and the country simply does not need to consider historic and systemic discrimination. Such concerns belong in the past–this country is now color-blind.

Erasing affirmative action draws into question this Supreme Court’s legitimacy: the complete disregard for precedent (affirmative action has been upheld by the Supreme Court in 1978, 2003 and 2016) and the reworking of the founding father’s original intentions in regards to the 14th Amendment of the Constitution, generates more questions about the stability of law; will this new Supreme Court keep shredding precedent as it chooses which case they will rule on to establish equity? Or, is nothing too extreme to bring about “fairness” as perceived by the Court.

Not according to Edward Blum, the man who brought this case to the Supreme Court in hopes of dismantling all race-conscious policies. If the Supreme Court rules in his favor and erases affirmative action, Blum perceives this would be the reckoning of the true meaning of the country’s civil rights movement. 

“The founding principles were that your race and your ethnicity should not be used to help you or harm you in your life’s endeavors. I think the majority of Americans will think of this as a good outcome and then be a steppingstone to other good outcomes, not just in the law but in the way we see each other.” 

“The question is how do we become a better country and put as much as that behind us and move forward as we can. The way we don’t do that is to say, ‘Well, we’re going to treat this person differently because of what you may have experienced and what historically may have happened to you decades and decades ago…’ That cannot be the path forward for reconciliation of past bigotry and discrimination.” 

Obviously, destroying the truth of this country’s past, present and future is not the way to go. But, the facts and statistics and the recorded history of this country’s people remain to rebut every facet of the Blum mythology. 

Blum has already cast his sights on a new target: in 2021, Blum established the Alliance for Fair Board Recruitment. This new alliance will focus on legally challenging the efforts of private corporations to apply diversity goals to their Board of Directors. 

We need to work harder.

 

(Nancy Snyder is the Recording Secretary Emeritus of SEIU Local 1021. She has a long history of writing about labor issues and labor history and also writes about political literature. This article was featured in CounterPunch.org.)