The Center for Africana Studies at the University of Pennsylvania is disgusted by the recent Supreme Court ruling that bans the consideration of race in college admissions effectively overturns over four decades of established precedent set by the Bakke decision. Instead of supporting Affirmative Action policies and their benefits in higher education, the Court chose to evaluate admissions policies from the perspective of a race-neutral America that does not exist. This outcome is not surprising given the composition of the Court and exemplifies the ongoing backlash against the progress made since the Civil Rights Acts of 1964 and Voting Rights Act of 1965.
Justices Sotomayor and Jackson present strong and persuasive arguments against this decision, highlighting the flawed interpretation of the law and history. Even a casual observer cannot disregard the significant role that race has played in shaping past and current realities in the United States. The majority opinion reflects the partisan divides in the country and reveals the ideological nature of judicial review.
The majority opinion takes a narrow view, assuming that students come from educational backgrounds where racism has no impact on their educational achievements. However, even the most optimistic individuals cannot ignore the disparities in health, wealth, and educational attainment highlighted in the dissents of Justices Sotomayor and Jackson. Sotomayor correctly points out that the Brown v. Board of Education decision was a race-conscious ruling that emphasized the importance of education in society. We agree with Justice Sotomayor's assertion that “the Court's re-characterization of Brown is a form of revisionist history and an insult to the legacy of Justice Thurgood Marshall.”
In reality, as both the majority opinion and Justice Thomas's concurring opinion fail to acknowledge, Black and Latino students disproportionately attend segregated schools with all the accompanying disadvantages resulting from generations of racism, discrimination, and neglect. Justice Jackson appropriately begins her dissent by noting that there are substantial “race-based disparities in the health, wealth, and well-being of American citizens.” These disparities cannot be ameliorated by robotic declarations of a nonexistent "colorblind" America.
It is worth reflecting on the timing of this decision, coinciding with the nation's celebration of its independence. In his seminal speech, "What to the Slave Is the Fourth of July?" Frederick Douglass reminds us that this celebration belongs primarily to one group, not to all. We are also reminded of the Court's previous decision in the Civil Rights Cases of 1883, which declared the Civil Rights Act of 1875 unconstitutional. As then, the majority opinion revolved around the 14th Amendment. Justice Harlan's dissent in the 1883 decision, in which he asserts that the essence and spirit of recent constitutional amendments were undermined by the Court’s clever semantic arguments, is eerily relevant today. The majority opinion in the Civil Rights Cases of 1883 effectively perpetuated the Jim Crow era until the 1964 Civil Rights Act was passed. Let us learn from history and have the foresight to prevent a new era of racial regression that could endure for another century.