NCLEJ Responds to SCOTUS Affirmative Action Ruling 

Today, in decisions that were as damaging as they were predictable, the United States Supreme Court struck down admission polices at Harvard University and The University of North Carolina that were created to benefit all of their students by creating more diverse and inclusive student bodies. These decisions extend far beyond these two universities, and upend forty-five years of Supreme Court jurisprudence. Affirmative action has created opportunities in higher education for students who were previously excluded, and whose presence has enriched not only themselves, but also the educational communities of which they were a part. Although these decisions left open some limited instances in which schools can consider the race of applying students, they ultimately reshape the analysis of considerations of race in college admissions to one which comes dangerously close to what former Justice Sandra Day O’Connor once described as ‘strict in theory but fatal in fact.’ 

It is particularly disturbing that the decisions are based upon a theory of color-blindness which ignores any consideration of the reality of persistent racial inequality and discrimination. The decisions add insult to injury by using the Fourteenth Amendment, enacted to assure that the privileges of citizenship and equal opportunity were available to newly-emancipated Black people following the Civil War, to limit and prevent their descendants from escaping continuing inequality. The Supreme Court has potentially dangerously narrowed a vital pathway to equity at a time when vicious efforts are underway throughout the Country to erase and halt teaching the history of Black people in America in our schools, and in the face of repeated, violent unequal treatment by law enforcement. 

The National Center for Law and Economic Justice has fought for more than six decades to end economic and racial injustice. From the beginning, our work securing access to public benefits, fighting for the rights of low-wage workers, challenging repressive law enforcement practices, and protecting accessibility for disabled people has frequently been done on behalf of Black and Brown individuals and communities harmed by policies and practices which were implicitly or explicitly discriminatory. Today’s decisions affect one of the most significant drivers of systemic discrimination, the lack of equal opportunity in education. Education serves as both a vehicle for the realization of each person’s human potential and represents a significant gateway to employment and income, that in turn provides access to better housing, food security and a safe environment. Today’s decisions erect barriers rather than deconstruct them. 

In her extraordinary dissent, Justice Ketanji Brown Jackson dismantles the reasoning of the majority opinion and calls for a clear-eyed view of the problems the country faces: 

“The only way out of this morass—for all of us—is to stare at racial disparity unblinkingly, and then do what evidence and experts tell us is required to level the playing field and march forward together, collectively striving to achieve true equality for all Americans.”  

NCLEJ has resolved to stare unblinkingly at all of the disparities, race prominently among them, that hobble the efforts of people to participate fully and fairly in American society, notwithstanding the constraints placed by the Supreme Court. We call on everyone to join us in this ongoing struggle.