For decades, conservatives have railed against Affirmative Action, a program that included the consideration of race in employment and college admissions. Last Thursday, conservatives got their wish when the U.S. Supreme Court voted to end the long-standing program. The vote in ending the policy was both a strong affirmation against Affirmative Action by the Court’s majority and an equally passionate condemnation by dissenting justices.
Chief Justice John Roberts opinion stated that a “student must be treated based on his or her experiences as an individual—not on the basis of race.” He continued, “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 color of their skin. Our constitutional history does not tolerate that choice.” Roberts’ opinion will not have an effect on military academies, including Colorado’s Air Force Academy, that have long benefitted from the policy in preparing future leadership of the military.
Affirmative Action was born in the 1960s in the wake of the passage of the Civil Rights Act and applies to guidelines or policies that ensure equal opportunity and prevent discrimination based on a variety of characteristics, including race, sex, gender, religion, national origin and disability. Its first applications were enacted to address racial discrimination.
While the ruling addressed only the policy at two schools, Harvard and the University of North Carolina, the ripples of the high court’s decision will resonate across the country. In Colorado, only two schools, the University of Colorado and Colorado College, will be immediately affected by the vote.
The Harvard case alleged the university’s admission policies penalized Asian American students and that it failed to employ race-neutral practices. The North Carolina case asked whether the university could reject the use of non-race-based practices without showing that they would compromise UNC’s academic standards or negatively impact the benefits gained from campus diversity.
“I was home in front of the computer already preparing for the emails and outreach (of the ruling),” said Metropolitan State University Vice President of Diversity and Inclusion, Dr. Michael Benitez. The questions he will no doubt get, he predicted, are “how is it (the ruling) going to impact on society writ large and what’s the connection between this decision and other areas of law.”
MSU-Denver will not be affected by the SCOTUS decision because the university admits any student who wishes to attend as long as they have a high school diploma or GED certificate. Benitez said that university leadership had been discussing the possibility of the high court’s decision and will over the next several weeks. For now, he said, the biggest issue is “how are we staying in solidarity” with students.
CSU-Pueblo President Dr. Timothy Mottet declared that, while the school is also an open enrollment institution, there will be no change in its current policies. “Colorado State University-Pueblo will continue to consider all applicants for admission as we value and foster diversity in our students, faculty and staff…regardless of the ties of legal interpretation.” CSU-Pueblo, said Mottet, “looks forward to welcoming you.”
The decision to end Affirmative Action fulfills ex-President Trump’s promise to conservatives on two key issues they have long fought to end, the other being last year’s overturning of Roe v Wade, the right to legal abortion.
Ironically, because Affirmative Action also includes provisions that apply to gender, the biggest beneficiaries of the program are White women. Since its adoption, women, heretofore, absent in countless high level and powerful positions—from heading up Big Three car manufacturers to prominent positions in the hierarchy of professional sports—have become familiar presences in the fabric of business, industry, entertainment and places that once were exclusively male.
A USA Today report citing a Labor Department report in 1995 said that since the 1960s, Affirmative Action “has helped 5 million members of minority groups and 6 million women move up in the workplace.” Those numbers have dramatically increased since then.
Dissenting Justices Sonia Sotomayor and Ketanji Brown Jackson have both hailed Affirmative Action as a key component for the success they have had in their careers. In her 69-page dissent, Sotomayor said the majority opinion “rolls back decades of precedent and momentous progress” and “cements a superficial rule of colorblindness as a constitutional principle in an endemically segregated society.”
Justice Brown Jackson, a Harvard Law School graduate, lashed out at the ruling and, at the same time targeted her SCOTUS African American colleague, Clarence Thomas, a long vocal opponent of Affirmative Action. Jackson said the Thomas dissent asks Americans to ignore “the elephant in the room—the face-linked disparities that continue to impede achievement of our great nation’s full potential.”
Thomas’s’ undergraduate and Yale Law School credentials, he has acknowledged, were the result of Affirmative Action. But the conservative Thomas has drifted far from early career praise of the policy.
In 1983, as head of the Equal Employment Opportunity Commission, Thomas said that Affirmative Action laws were of “paramount importance” to him. “But for them,” he said, “God only knows where I would be today.” But, today, he says the program, which has benefitted thousands of men and women, gives the impression that minority students in elite universities are thought to be “dumb” and should not be in select institutions were it not for Affirmative Action.
The NAACP excoriated Thomas, not only for last week’s vote, but for his long-standing opposition to a program that helped elevate him to the position he holds today. “It is an unfortunate day for America that this court would decide that diversity has no value. The worst thing about affirma- tive action (sic) is it created Clarence Thomas,” said the civil rights institution.
Beside Roberts and Thomas, the Court majority included Justices Alito, Coney Barrett, Gorsuch, Kavanaugh. Joining Brown Jackson and Sotomayor was Justice Elena Kagan.
