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The True Color of Efforts to Strike Down Affirmative Action

Education Policy Brief #59 | By: Steve Piazza | January 7, 2022

Header photo taken from: Julian J. Giordano

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Valuing and promoting diversity has become such an integral part of how many colleges and universities pursue their educational missions that ending affirmative action would require a fundamental change in the way those colleges and universities operate.

Photo taken from: Shutterstock, Rutgers.edu

Policy Summary

The U.S. Supreme Court recently heard arguments relating to the use of Affirmative Action, or policies designed to reduce discrimination during the college admission process. The focus was on two cases: Students for Fair Admissions v. Harvard, No. 20-1199, and Students for Fair Admissions v. University of North Carolina, No. 21-707.

Lower courts had previously ruled in favor of the two universities stating they do not use race as the deciding factor, but attorneys for Students for Fair Admissions, a group that has long been advocating for the eliminating Affirmative Action altogether, appealed.

Though no USSC ruling is expected before June of this year, the questioning by the Court’s majority conservative justices might be viewed as a signal that the longstanding law’s days of anti-discriminatory protections may be nearing its end.

Policy Analysis

The central question in the case is this: Is race being used as the deciding factor when making decisions about college applicants? But based on statements, questions, and answers during oral arguments, clearly what’s at issue is this larger question: Should race be used at all?

The session began with the central question itself, but the nearly three hour session mostly reflected the skepticism of the conservative justices towards the need for anti-discrimination protections, while the three liberal justices argued for the sake of them. 

From the moment that the oral arguments began with petitioners’ attorney Patrick Strawbridge stating, “Racial classifications are wrong,” it seemed that lines were drawn. Strawbridge went on to assert that the policy at UNC is reducible to one indicator, race, and that application points go only to non-whites or Asians, claims that had already been disproved according to lower court records.

By then the focus  turned to the value not only of such decision making, but segregation itself.  At one point, Justice Thomas stated that though he’s familiar with the word “diversity,” he doesn’t have a clue what it means, and then went on to question the educational benefits of it.

The questions from the conservative side continued to avoid the central question consistently. Perhaps it’s because the question whether race can be used as a single criterion has already been answered in precedents set back in Grutter v. Bollinger, 539 U.S. 306 (2003), and Regents of the University of California v. Bakke (1978).

The fact that arguing semantics via terms such as diversity, permissible and impermissible classification, race-neutral alternatives, etc. still exists says a lot about where we are as a society right now. Even questioning the advantages of Affirmative Actions seems contrived and partial. When three liberal judges have to explain to the rest of their colleagues that Affirmative Action programs have resulted in advancements in leadership and the socio-economic welfare of millions across the country, it seems that the conservative justices are peeking a little too much above the blindfold.

Photo taken from: The Chronicle of Higher Education

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A majority of Americans think public schools are on the wrong track, fueled by how racism is addressed in the classroom.

Photo taken from: Grinnel.edu

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The downside of removing Affirmative Action has already been seen. Since nine states have banned it, research shows that it has affected enrollment for non-white students across the board. For example, a May, 2022 study at UCLA shows that in states where bans were implemented, there was a drop in public medical school enrollment of more than 30% of students identified with underrepresented racial and minority groups.

It should be noted that the larger question is not solely about attitudes regarding racial equality, as they are about the continued inequitable lack of access to resources for students at the K-12 level. Truly, judicial procedures must be about results and process and not seen as an easy way out for those opposed to Affirmative Action.

 

A law such as Affirmative Action is in place to deter. If it has any impact at all, and it has, it’s still only taking care of symptoms of something underlying it. It doesn’t make racism go away, particularly when those attitudes have existed in this country since its founding. If that seems hyperbolic, think of all the recent turmoil that surfaced once civil rights voting protections were relaxed in 2013.

If Affirmative Action is defeated, the negative effect on admissions by people of color across the country will most likely return to the spotlight. Again. And again. Spotlights are good, but not if they have previously been in place, and over time too many spotlights tend to overlap and hide the racial injustices they’re attempting to expose. 

The end result of the demise of Affirmative Action will once again be another systemic failure that will cause so many students, and eventually employment seekers, to suffer.

Engagement Resources​

Click or tap on resource URL to visit links where available 

This is a link to the entire transcript of the oral arguments by the USSC on 10.31.22: https://www.supremecourt.gov/oral_arguments/argument_transcripts/2022/21-707_9o6b.pdf

The American Civil Liberties Union (ACLU) has provided support in this and many other related cases. To learn more about ACLU efforts regarding Affirmative Action, click here:

https://www.aclu.org/issues/racial-justice/affirmative-action

Another organization that has been advocating for equitability and fairness is the American Association for Access Equity and Diversity (AAAED), whose information can be found here: https://www.aaaed.org/aaaed/About_Us.asp

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