In June of 2023, the Supreme Court ruled against the use of affirmative action in college admission.
Years ago, in a small gathering of friends, we talked about what mattered most to us in the upcoming 2008 presidential election. One friend wished for marriage equality (this was prior to its enactment). Another selected consciousness, meaning deep awareness of the interconnectedness of all things. I chose the Supreme Court. My intense focus on the Supreme Court feels prophetic to me, with the current dismantling of Roe vs. Wade, retrenchment on student debt relief, and now, to my profound sorrow, the end of affirmative action.
Why was I so focused then and now on the Supreme Court? For as long as I can remember, my family and community counted on the federal government to liberate us. The segregated southern state (Tennessee) in which we lived legislated in the opposite direction, so we looked to the federal government, and especially the Supreme Court, to fulfill its promise to itself and implicitly to us as citizens.
My father was a great respecter of the law and especially the US Constitution as written, despite being savvy that any law as enacted might not measure up. And so, year after year, starting after World War II, my parents’ generation and then mine celebrated each successive court victory dismantling segregated practices.
The Supreme Court decision of June 28, 2023 abolishing affirmative action affected me profoundly. It represented the end of a dream, a hope, a vision that Lady Liberty truly welcomed all of us. For me, the Supreme Court has lost its luster as the anchor to liberty. It is now merely a group of individuals who are subject to the political interpretations they choose to place on the abstract ideal they were appointed to protect.
I am surprised at how unmoored I feel. After all, at that long ago meeting, I did know that the presidential election would determine the composition of the Supreme Court which would then determine how the Constitution would be upheld.
I knew it, yet the childhood memory of the reverence with which my father held the Supreme Court had somehow stayed with me, untainted by political contingencies. And in my lifetime, that reverence held up, as each new decade brought new freedoms – end of desegregation, equal opportunity laws, affirmative action, reproductive rights, greater separation of church and state, disability rights, marriage equality. The Supreme Court was on our side, and our side was the side of liberty for all.
And now, no more. That thought fills me with sadness and takes me beyond outrage into a deeper resolve and a compulsion for action. The road to liberty I have counted on all my life is now fraught with barriers and detours, but that doesn’t mean the destination is no longer valid. We will have to find another way – and I see a new path I never would have anticipated years ago.
In 1865 after the Civil War, slaves were freed with the enactment of the 13th Amendment to the Constitution, yet the question of their citizenship hung in the air.
That question was answered in 1868 through the 14th Amendment, granting citizenship to "all persons born or naturalized in the United States" and requiring states to provide “equal protection” to all individuals residing in their jurisdictions. The Southern states had enacted “Black Codes” and other laws intended to restrict African Americans’ rights and freedoms, and the 14th Amendment was intended as a redress.
Yet laws enacted and laws implemented are not the same. African Americans were widely regarded as inferior throughout the country and Northern industry relied on exploited Southern labor, so the South was mostly just left alone to impose segregation on its second-class citizens. The Black Codes and other restrictions on African American citizenship rights were rapidly enacted to “keep them in their place.”
With the 14th Amendment as the banner, the march toward equal justice under the law was fought slowly but steadily for nearly a century in the Southern courts as local segregation laws were gradually dismantled in different southern jurisdictions.
The civil rights movement hugely accelerated the process, culminating in the Civil Rights Act of 1964 signed by President Johnson. Relying mainly on the 14th Amendment, the Act prohibited employment discrimination on the basis of race, color, religion, sex, or national origin. A year later, through an executive order, Johnson required government contractors and subcontractors to take affirmative action to ensure equal opportunity in their hirings.
The question was how to ensure equal protection and equal opportunity to all – through race-conscious policies or through colorblindness?
Those advocating race-conscious policies point out that historical and systemic discrimination continues to disadvantage African Americans, and that colorblindness perpetuates this legacy. Their focus is on racial groups, and lingering systemic inequities in access to resources.
Those advocating color-blindness look at each individual, one by one, to decide whether that particular individual has been penalized by a race-conscious policy. They argue that race consciousness perpetuates racial divisions and that all people, regardless of background, should be treated equally. [blog #26: Is colorblindness a covert way of protecting racism?]
When I was teaching, I witnessed the confusion of my students about this. On the one hand, they almost unanimously agreed that the statistics about the life chances of today’s African Americans in comparison to Whites were dismal, and they fully understood that these numbers originated in slavery and were perpetuated by Jim Crow laws. The hurdle is that statistics, by definition, are about groups of people.
Yet while agreeing the stats were awful, someone would talk about how their Cousin Joe or Aunt Polly did not get the job they wanted or get into the college they aspired to because of race-conscious policies. “Is this fair?” they would ask. In today’s lingo, it’s called “what-about-me-ism.”
Others were willing to see the benefits of a personal sacrifice for the greater good. A woman I know withdrew her name from a coveted promotion because her contender was a person of color and there were no people of color in the leadership team she aimed for, much less in the higher ranks. I asked her how she was psychologically able to do that. She said, “I can’t claim to value diversity and inclusion and then block diversity and inclusion. Another job will come along that I can take.” I might add, it eventually did – and better than the one she relinquished.
The 2023 Supreme Court decision made it unlawful for colleges to consider race as a factor in college admissions, unless it was tied to a “quality of character or unique ability” as explained in the student’s application. Chief Roberts’ opinion was explicit: “In other words, the student must be treated based on his or her experiences as an individual – not on the basis of race.”
The Court made another exception that has been frequently overlooked in the media. In a friend-of-the-court brief filed in August 2022, 43 top retired military leaders asserted that affirmative action was necessary in military academies because “Growing And Maintaining A Highly Qualified, Diverse Officer Corps Remains A U.S. National Security Imperative.”1
Without affirmative action, they believed they would have a hard time ensuring a racially diverse student body and diverse leadership in the military ranks and would lose legitimacy among some American citizens and in some countries. Those filing the brief included four former Joint Chiefs of Staff and eight former service academy superintendents.
Because they were willing to exempt military academies, the Court obviously understood that eliminating race-conscious behaviors would inhibit the ability of colleges to maintain diverse student populations. Yet for the rest of us, they did it anyway. So what gives?
As a vivid illustration of the differences in opinion within the Court, several commentators have addressed the sharp contrast between the opinions of the two Black justices, even while noting they agreed on the policy’s aim of remedying longstanding discrimination of African Americans. 2
On the one hand, Justice Clarence Thomas castigated Justice Ketanji Brown Jackson’s opinion by overtly claiming that affirmative action equated to perpetual victimhood of African Americans:
So Justice Jackson supplies the link herself: the legacy of slavery and the nature of inherited wealth. This, she claims, locks blacks into a seemingly perpetual inferior caste… Such a view is irrational; it is an insult to individual achievement and cancerous to young minds seeking to push through barriers, rather than consign themselves to permanent victimhood.3 |
As several commentators have pointed out, Thomas attended Yale Law School in 1971 during the early days of affirmative action and claimed it was the “worst experience of my life” because his White classmates thought he was only there because of his race:
You had to prove yourself every day because the presumption was that you were dumb and didn’t deserve to be there on merit.4 |
On the other hand, Justice Kentanji Brown Jackson took an unflinching look at historical inequities, explaining:5
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Gulf-sized race-based gaps exist with respect to the health, wealth, and well-being of American citizens. They were created in the distant past, but have indisputably been passed down to the present day through the generations. Every moment these gaps persist is a moment in which this great country falls short of actualizing one of its foundational principles – the “self-evident” truth that all of us are created equal…. Our country has never been colorblind. Given the lengthy history of state-sponsored race-based preferences in America, to say that anyone is now victimized if a college considers whether that legacy of discrimination has unequally advantaged its applicants fails to acknowledge the well-documented “intergenerational transmission of inequality” that still plagues our citizenry…. With let-them-eat-cake obliviousness, today, the majority pulls the ripcord and announces “colorblindness for all” by legal fiat. But deeming race irrelevant in law does not make it so in life. |
In an opinion in 2007, Justice Roberts famously declared, “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”6
In other words, just stop using race as a factor in your judgments of others.
But can we as a society pull this off?
Bonnie Dilber, a recruitment specialist and internet personality, has a commentary on TikTok7 about similarity bias, the tendency of people to gravitate toward those who are most like them. She illustrated this with a photo of guests at actor Kristen Bell’s dinner party.
Bell is a lead on The Good Place, a television show with a diverse cast. She believes in diversity. So do probably all the guests, many of whom are also on shows featuring diverse casts. Yet at this dinner party, their similarity is striking. They look very much alike, with no diversity in evidence.
Dilber explains:
This picture has a lot to do with workplace culture in your job search. So let's talk about it… Who gets to be in the cool club that gets invited to the country club or to the golf game with the CEO, and what does that represent? What opportunities does that tend to unlock for those people? There are a lot of influential people at that table. And the people they're choosing to socialize with are the ones that look like them. And I'm sure if you ask them, it was not intentional. However, those are the first things that came to mind when they decided who they wanted to invite. And the same thing happens when it comes to who am I going to refer for a job. We tend to think about the people we're closest to and those are often going to be the people that are most like us in an interview. We're going to feel like we click with the people who are most similar to us. And it's on us to be observant and aware. |
A comment posted on this video agreed with her:
It's interesting that there's an argument that these are all just friends. They all know each other through work, but it's interesting because just think about Kristen Bell's cast on The Good Place and how diverse that was. And yet, we’re not seeing that diversity invited to this social event. And this is exactly what happens in so many other workplaces, right, like lots of people get to work there, but who has a real seat at the table who gets access to the people with the most power and influence? |
Here’s the takeaway: The Supreme Court may declare that we should stop “discriminating” by ignoring race, yet ignoring race is exactly what might have produced Bell’s dinner party. Those who participated were friends, people who worked together and were comfortable with each other. People flock together according to their similarities.
The NAACP immediately launched a “diversity no matter what” pledge for colleges and universities.8 Most of their suggestions would help despite the SCOTUS ruling. Three are especially noteworthy:
David Brooks, the conservative New York Times columnist, shared his possible solution in an opinion article, Affirmative action is dead. Campus diversity doesn’t have to be.9
[Condensed] The decision opens the door to rethinking the entire college admissions process, which has historically favored students from wealthy backgrounds. I’m probably sad that affirmative action is going away, but I’m hopeful that we can take advantage of this moment…to think in a much bigger way about who should get into what schools. We’ve wound up with a system where rich kids dominate elite schools. We’ve created a caste society based on who gets into what exclusive colleges. I think colleges should select students holistically. They should look at their grades, they should look at their test scores, but they should also look at their resilience. They should look for examples of kindness and generosity in their lives. …We live in a class-divided society, and so we should have a system that’s biased a bit toward kids who grew up in poorer homes and didn’t have the resources growing up that the richer kids had. The remaining legal way to make diverse campuses is to do it by class. And it just seems to me that this moment when the Supreme Court has shaken up the admissions process, this is the time to do it. |
Because I specialize in leading multicultural organizations, I am placing my personal bets on the many DEI consultants, allies, and adherents out there who are doing what they can to create diverse organizations, diverse classrooms, and a truly diverse, multicultural society.
My hope is that DEI (diversity, inclusion, and equity) is too far ingrained in so many arenas in this society to be undone by SCOTUS.
The value of diversity in spawning creativity and improving organizational performance is firmly established in the research.10 People solving problems in diverse groups outperform those in homogenous groups because they pay attention more, listen intently, and consider multiple viewpoints. It’s hard to take what you already know for granted when someone sitting in the same meeting with you is coming from a vastly different perspective. Simply put, diversity makes teams smarter.
A study found that indeed a “racial attention deficit” does occur, so that minority members tend to be ignored compared to their White peers in meetings. Providing information about the accomplishments of their Black peers reduced this tendency to assume they weren’t as competent. But the racial attention deficit substantially subsided when the White peers were provided with the opportunity to witness their Black peers’ accomplishments rather than just being told about them.
But what about Clarence Thomas’s dreadful experience at Yale in 1971? Won’t race conscious policies predict similar experiences for other students? Not necessarily. Thomas was thrown in a sink-or-swim situation with no recourse for his peers to understand who he was. In today’s more sophisticated diversity climate, this no longer has to happen.
The SCOTUS decision is a call to action for all of us. Look around you. Are you surrounded by an analog to Kristen Bell’s dinner party? Or are you reaching out beyond your comfort zone to enrich your life and your environment by including others different from yourself? It’s your choice.
For anyone willing to wade through the entire Supreme Court ruling,11 it is offered below. So is the dissenting opinion of Justice Brown.12
Questions to ask yourself
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