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By Gloria Browne-Marshall, 
AFRO U.S. Supreme Court Correspondent

The courtroom where the U.S. Supreme Court justices recently heard arguments on affirmative action was filled with tension and irony.

The judges heard about opposition to affirmative action programs at Harvard College and the University of North Carolina. 

Justice Ketanji Brown Jackson, a Harvard graduate, ascended to the high Court earlier this year. For the first time in history, there are two Black justices on the Supreme Court. However, Justice Clarence Thomas, a Black man, and beneficiary of affirmative action, is also the Court’s most virulent opponent of the policy. 

Justice Jackson, a member of Harvard Board of Overseers, recused herself from deciding the Harvard case. But Jackson was quite vocal during the North Carolina argument. Edward Blum, a wealthy conservative activist, founded Students for Fair Admissions (SFFA) which sued the University of North Carolina and Harvard University. 

SFFA argued that the use of race as one factor among dozens in college admissions violated the Equal Protection rights of White and Asian applicants. 

In the North Carolina case, attorney Patrick Strawbridge, representing SFFA, used the famous 1954 Brown v. Board of Education public school desegregation case to argue that affirmative action violated the rights of some college applicants. Justice Jackson peppered Strawbridge with questions regarding the fact that race is just one among dozens of factors considered during admissions. Justice Jackson noted that checking the ”race box” on the application is voluntary. She stated that there are no quotas in college admissions and “race is never the only criterion” for admission. 

Justice Sonia Sotomayor, the first Latina on the high Court, and Justice Elena Kagan, the third woman on the Court, questioned Strawbridge as to how leadership in America would be diverse if the pipeline from college was not diverse. 

Strawbridge did not clearly answer these questions or how race, as only one factor in admission, was considered a determinative reason for harm. Justice Sotomayor said there were statistical flaws in the data used by SFFA. When asked about whether an applicant could discuss their life experiences using race in a college admissions essay, Strawbridge responded initially with no. Then he said one could discuss culture in the essay, but not race. 

Justice Kagan responded with “that’s slicing the bologna awfully thin.”     

The Supreme Court is currently controlled by a cohort of six conservatives, three of whom were appointed during the Trump Administration. 

This supermajority welds the power within the Court. Justice Thomas is viewed by many as the most rigid in his conservatism. He somehow aligns affirmative action with Jim Crow. 

In 2013, Justice Thomas wrote “the argument that educational benefits justify racial discrimination was advanced in support of racial segregation in the 1950s, but emphatically rejected by this Court. And just as the alleged educational benefits of segregation were insufficient to justify discrimination then, [in Brown v. Board of Education], the alleged educational benefits of diversity cannot justify racial discrimination today.” 

The Fourteenth Amendment’s Equal Protection clause was ratified in 1868 to give full rights under law to newly freed Africans in America, and later extended to all persons in America. 

Harvard student Kashish Bastola, a Nepali American, and beneficiary of affirmative action, co-founded The Affirmative Action Coalition at Harvard. He was among dozens of students who rallied to defend diversity on Harvard’s campus and among hundreds of students who stood in the rain for hours in front of the Supreme Court while the arguments raged inside. 

In the Harvard case, SFFA argued that affirmative action harmed Asian applicants. However, twenty-five diverse groups supported the amicus or friend of the court brief filed on behalf of Harvard and North Carolina. Asian American alumni associations and Asian American student groups signed onto the brief. SFFA seemed to ignore this, as did Justice Thomas. 

“What is the educational benefit of diversity?” Thomas asked. He directed this question to each attorney arguing on behalf of affirmative action. Solicitor General Elizabeth Prelogar, who represents the nation in Supreme Court cases, provided a seamless explanation for a diverse military from a national security perspective.

Affirmative action has been a controversial topic for decades. During a time of virulent racial discrimination, President John F. Kennedy issued Executive Order 10925, focused on government contractors, which included a provision requesting affirmative action to ensure employment without discrimination regarding race, creed, color, or national origin. In 1965, President Lyndon B. Johnson signed Executive Order 11246 adding protections against sex discrimination. Educational institutions began affirmative action in admissions.  

In 1978, the Supreme Court found in favor of Allen Bakke, a White applicant, who sued the University of California School of Medicine, arguing affirmative action was ‘reverse discrimination’ in violation of the Fourteenth Amendment’s Equal Protection clause. 

Lawsuits by White women in Michigan and Texas resulted in allowing affirmative action policies to stand, only if race is used as a single factor in admissions. The 2003 Grutter v. Michigan Law School case allows race conscious admissions. However, Chief Justice John Roberts asked when such a policy would ever end. Initially, Justice Sandra Day O’Connor gave a twenty-five-year projection. But Justice Kagan raised the effects of present-day racism as a reason for the continued need for affirmative action.

If the Court rules in favor of SFFA, race will no longer be allowed as even a single factor in college admissions. 

Harvard and North Carolina predicted further declines of African American students at predominantly White colleges (PWI) if affirmative action ends. Historically Black Colleges and Universities (HBCU) have seen an increase in applications over the last four years. In Court, David Hinojosa, representing diverse student groups, referred to the 145 years of exclusion suffered by people of color that made affirmative action necessary. The attorneys for Harvard and North Carolina steered clear of saying their affirmative action policies were remedial or part of reparations. 

SFFA argued that Harvard was limiting Asian applicants in ways like that of Jewish applicants in the early 1900s. Seth Waxman, representing Harvard, emphatically stated there was no evidence of prejudice against Asian Americans.

A supermajority of conservatives on the Court has the votes to end affirmative action as we know it. 

Justice Thomas may very well write the opinion on an issue he has revealed the topic for decades. 

Young people, like Bastola, ready themselves for the decision and possible battle over their future.

 “When I was in high school,” Bastola said, “I did not expect myself to be chanting for race-conscious admissions in Harvard Yard. Why are we still having to explain our value, the value of diversity?” 

As a witness to the evolution of civil rights, this may be yet another blow to racial justice under law. Decisions in both cases are expected by June 2023. 


Gloria J. Browne-Marshall is the U.S. Supreme Court correspondent for The AFRO, author, professor at John Jay College, playwright, and currently an IOP Resident Fellow and visiting professor at Harvard Kennedy School.

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