It is no secret that the current Supreme Court is willing to overturn decades of precedent — no past decision is safe. On Halloween, my colleagues at the Lawyers’ Committee for Civil Rights Under Law did everything in their power to prevent the Court from doing that in two affirmative action cases: Students for Fair Admissions (SFFA) v. Harvard and SFFA v. University of North Carolina (UNC).
Students for Fair Admissions is a group led by Edward Blum, a man backed by a powerful right-wing infrastructure seeking to overthrow nearly 45 years of Supreme Court precedent. If successful, there will be a drastic decrease in the number of highly-qualified students of color at competitive colleges and universities across the country. The Lawyers’ Committee is representing a multiracial group of former applicants, students, and alumni of color in the UNC and Harvard cases, and David Hinojosa, our Director of our Educational Opportunities Project, argued on their behalf to ensure the voices of those who would be most harmed by the elimination of affirmative action are at the center of these cases. The stakes for our clients and students of color nationwide could not be any higher. If the Supreme Court decides to outlaw affirmative action in higher education, Black, Latinx, and Native American student populations will tank dramatically.
SFFA is trying to draw a false equivalency between race-conscious admissions policies intended to keep underrepresented students of color in institutions of higher learning with racially discriminatory and exclusionary admissions policies guaranteed to keep underrepresented students of color out of these institutions. Colorblindness is not the solution to fostering racially diverse institutions of higher learning and the drafters of the 14th Amendment never intended for its mandate to be carried out in a colorblind manner. As Justice Sonia Sotomayor powerfully stated during the oral argument, “Colorblindness — whatever that means because our society is not color blind… comes as a high cost not only to UNC,” but “to the nation as a whole.” As we wrote in our merits brief in the UNC case, “Congress expressly rejected language that would have adopted a race-blind approach under the Fourteenth Amendment” when the U.S. Senate rejected a version that read, “No State… shall… recognize any distinction between citizens… on account of race or color or previous condition of slavery” by a resounding vote of 38 to 7.
Systemic barriers to college enrollment and matriculation for underrepresented students of color are compounded by the lack of access to educational resources they receive in their formative Pre-K-12 years. Affirmative action is a policy that recognizes these deficiencies in primary and secondary education for underrepresented students of color as not being the fault of the students themselves. Importantly, affirmative action recognizes that no matter how hard Black, Latinx, and Native American students may work, there are barriers they will undoubtedly face in their educational journey that white students will not face, regardless of their socioeconomic background.
One glaring example of the disparities that exist for Black and Latinx Pre-K–12 students across socioeconomic categories is internet access. A 2020 Carnegie Melon University and MIT study showed that children who were Black, Latinx, and learning English as a second language were less likely to have access to the internet than white or Asian children, even when controlling for economic status. Even before the COVID-19 pandemic introduced new norms for hybrid learning, it was easy to see how this barrier put underrepresented students of color at a disadvantage. By taking students’ race into account as one of many admissions factors, colleges and universities can ensure that exceptionally talented students of color are accepted even if these barriers negatively impact their test scores, grades, or other allegedly race-neutral marks of achievement. The Supreme Court cannot snap its fingers and make racism and all of the barriers that students of color face from Pre-K–12 go away by turning a blind eye to race.
While counsel for SFFA insinuated that underrepresented students of color will still be admitted to competitive colleges and universities using race-neutral admissions criteria at similar rates, we know that is not true because of what happened in California and Michigan after each state banned the consideration of race in admissions. In 1996, Californians voted to adopt Proposition 209, an outright ban on the consideration of race in college admissions that “set back a generation of Black and Hispanic students.” As a result, Black and Latinx students were pushed “down and out of the University of California system” and the racial wealth gap in California widened. Just as upsetting is the fact that white and Asian-American students’ chances to graduate and begin successful, high earning careers did not increase after the ban. This completely undermines SFFA’s argument that white and Asian-American students are hindered by race-conscious admissions policies.
The same thing happened in Michigan in 2006 after the state similarly abandoned the consideration of race in college admissions. “Black enrollment at the University of Michigan dropped by nearly 10 percent in the three years following Proposition 2,” and it is still approximately half of what it was before Proposition 2 went into effect.
We know that the precipitous decline of Black, Latinx, and Native American students will occur nationwide if the Supreme Court rules in favor of SFFA. Harvard’s own expert, David Card, testified that without considering race as a factor in admissions, the percentage of Black students at Harvard would fall from 14% to 6%, and the percentage of Latinx students would drop from 12% to 9%. This would be an unacceptable blow to Harvard because these students of color are tremendously talented, provide greater depth to classroom discussions, and greatly contribute to society upon graduation.
This decline in Black, Latinx, and Native American enrollment is SFFA and Edward Blum’s true goal. If the Court grants their wish, it will set back generations of students of color nationwide and be disastrous for our multiracial democracy.
Caleb Jackson serves as Policy Counsel at Lawyers’ Committee for Civil Rights Under Law, where he primarily focuses on voting rights, educational opportunities, and criminal justice work.
The principal mission of the Lawyers’ Committee for Civil Rights Under Law is to secure equal justice for all through the rule of law, targeting in particular the inequities confronting African Americans and other racial and ethnic minorities. The Lawyers’ Committee is a nonpartisan, nonprofit organization, formed in 1963 at the request of President John F. Kennedy to enlist the private bar’s leadership and resources in combating racial discrimination and the resulting inequality of opportunity – work that continues to be vital today.