In just over one year, the U.S. Supreme Court — reshaped by three justices nominated by President Donald Trump — has ignored decades of precedents and removed federal protection for abortion rights, weakened environmental regulations and struck down gun safety laws. In just the past week, the right-wing extremist super majority ruled that a Colorado nondiscrimination law that made it illegal for businesses to discriminate against LGBTQ customers was unconstitutional, blocked President Biden’s plan for student debt relief and effectively ended affirmative action in college admissions.
In their affirmative action decision, the six right-wing justices insisted their ruling was a step toward a more colorblind society, where students will be measured by their accomplishments, not their race. But in her scathing dissent, Justice Ketanji Brown Jackson, condemned the majority view saying “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.”
Between The Lines’ Scott Harris spoke with Risa Lieberwitz, general counsel with the American Association of University Professors and professor of labor and employment law at Cornell University’s School of Industrial and Labor Relations. Here she assesses the flawed rationale the high court cited to end affirmative action and how colleges and universities across the country can respond to honor their commitment to racial diversity.
RISA LIEBERWITZ: What we see here is a pattern of and a very extreme conservative right-wing position by this so-called super majority of six justices who are relentlessly — through their decisions — undermining the progress that has been made for civil rights, for expanding the rights of women, for expanding the rights of people of color, gay and lesbian rights.
What we can see here with this decision dealing with Harvard and University of North Carolina is part of that pattern of rolling back the clock through these judicial decisions and undermining the progress that’s been made to expand civil rights in multiple sorts of institutions. And so the two dissents, one authored by Justice Sotomayor, the other by Justice Jackson, point this out and they talk about the progress that affirmative action is made in public and private universities, and the ways in which the court majority ignores the reality of the continuing need for race-conscious affirmative action programs for admissions.
And the dissent also point out the way in which the court is ignoring the reality of continued racial inequality, as well as the ways in which the 14th Amendment and the decisions in particular by the court since Brown v Board of Education in 1954 have recognized that to create racial equality requires that we have affirmative measures taken to make the vision of the 14th Amendment, the vision of Brown v Board a reality by actually eliminating racial inequality and moving towards true racial equality.
SCOTT HARRIS: Thank you for that, Professor Lieberwitz. I did want to ask you, what did the court do and what did it not do regarding a college or university’s ability to ensure they have the ability to enroll a diverse student body? And note here that Supreme Court Chief Justice John Roberts did something that a lot of legal scholars found interesting — or hypocritical. There was a footnote that exempted military academies from their decision, which indicates a bit of hypocrisy possibly in how they reached their conclusion for the rest of the population of America.
RISA LIEBERWITZ: Well, I think you asked the question just right, that is what did the majority do in this decision and what did the majority not do, which is very important as well. Well, what the majority opinion did was to say, well, these interests are commendable goals in diversity and what benefits flowing from a diverse student body that’s commendable, but it’s no longer considered a compelling interest and that the use of race as any factor the court said was no longer permissible in what they viewed as the race-blind approach of the 14th Amendment. Now, of course, the dissenting opinions point out that there is no such thing as race blindness in the United States. We have continued racial inequality and to carry out that vision of racially equality, we have to also be race conscious. But the majority opinion says the explicit use of race is no longer permitted.
Now, that rolls back the clock again on settled law. But there was this statement as you pointed out that Justice Roberts and the majority said that universities may consider an applicant’s discussion of how race affected that applicant’s life, as Robert said, be it through discrimination, inspiration or otherwise. But that this should not be viewed as a way of considering race. Instead, the individualized evaluation of the student’s application needs to be one that’s individual for that student, how that student’s abilities can contribute to the university, but not based on race.
Now, Justice Sotomayor says this is really a disingenuous approach. As she said, it’s like putting lipstick on a pig by undercutting the real value of diversity, but at least it does provide that opening. But just to note about the hypocrisy and the contradictory approach to exempting the military academies from this decision, it is ironic and the dissenting opinions point that out.
I guess ironic at best to exempt the military to say, well diversity is important with regard to who can join the military and potentially be killed. But it’s not a compelling interest when it comes to education, which is really the foundation of a democratic society.
Listen to Scott Harris’ in-depth interview with Risa Lieberwitz (17:52) and see more articles and opinion pieces in the Related Links section of this page.
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