Harvard Black Law Student Association Response to Students for Fair Admissions v. Harvard College

Originally published July 11 2023

The Harvard Black Law Students Association expresses its condemnation for the recent Supreme Court ruling on race-conscious affirmative action.

In Students for Fair Admissions v. Harvard College and its concurrences, several references are made to the word “equality.” The Court claims to have unleashed a dormant meritocracy that was obstructed by the admissions policies of Harvard University, the University of North Carolina, and other universities with race-conscious admissions programs. Now, they contend, students will not be judged by the “color of their skin” and instead only by their “unique ability to contribute to the University.” As is consistent with conservative rhetoric surrounding race and history, this decision divorces policy from the reality of American society. Affirmative action programs were enacted by various institutions in response to the pervasive racial animus that systematically excluded Black people and other minorities from gaining admission to them. Any notion that there are similarities between flagrantly racist policies and those that seek to mitigate the harms done by de jure racial segregation blatantly ignores the implicit mandates of the Civil War Amendments (13th, 14th, and 15th) and diminishes the significance of segregation itself. As stated in Justice Stevens’ dissent in Adarand Constructors v. Pena (1995),

“There is no moral or constitutional equivalence between a policy that is designed to perpetuate a caste system and one that seeks to eradicate racial subordination.”

The equality put forth by the Court is an emaciated one, starved of any real material meaning. It places the same expectations on the wounded as it does their assailants. Underlying this theory is a hostility to all racially-conscious policies as unfair discrimination, and a desire to remove discussion of distributive justice from the political conversation. The role of such justice had already been reduced significantly, as the ruling in Regents of the Univ. of Cal. v. Bakke (1978) prohibited affirmative action from remedying past racial inequality. The Supreme Court reaffirmed the restriction that schools could only use race-conscious affirmative action to promote diversity to create a more complete educational setting in the 2003 case Grutter v. Bollinger. These rulings precluded the development of an intersectional affirmative action, and instead relegated race-conscious admissions to the realm of aesthetic curation. This largely explains why the greatest beneficiaries of affirmative action in general have been white women, who have largely caught up to their male counterparts in academic representation. See “Reverse Discrimination Complaints Rare, Labor Study Shows” by the Associated Press (1995). Meanwhile, minority groups are still less likely to attend or complete college than white people. Affirmative action was a policy that could only inadvertently help minorities in order to create a dynamic scholastic product, and yet it was still mercilessly attacked by reactionary forces.

Black people have experienced the consequences of “colorblind” policymaking in the past. Without race-consciousness, a country whose history is so deeply intertwined with white supremacy will continue to harm those who have been historically disadvantaged. Much of Jim Crow discrimination was hidden behind the pretext of inherent Black ineptitude. Black people simply lacked the talent to make anything of themselves, so they said, and thus it made sense that they never received loans, could not get rid of their debt, should not participate in elections, and so on. This same logic underpins current claims that Black people who cannot get into schools without race-consciousness are simply without merit.

Rather than acknowledging the enormity of the racial wealth gap, mass incarceration, relegation of minority students to under- resourced schools, and other phenomena proven by studies of systemic racism, this ruling returns to the tired narrative that Black people are underrepresented in higher education due only to their own inherent ineptitude.

With the recent ruling, the Court destroys one of the only major race-conscious policies that existed in a country still resisting any meaningful reckoning with the magnitude of its history. As Justice Marshall pointed out in his concurrence in Bakke,

[I]t is not necessary “to have individual Negroes demonstrate that they have been victims of racial discrimination; the racism of our society has been so pervasive that none, regardless of wealth or position, has managed to escape its impact.”

The Justices knew this, and faced the moment with a childish impatience; lamenting that there was “no end in sight” for affirmative action policies, they decided that the day America would finally live up to its promises simply took too long to arrive. Rather than enabling universities to continue their duty to rectify historical wrongs, the Court decided that it was best to abandon the pursuit altogether. In doing so, they have given a platform to conservative resentment towards radical literature, gender theory, and race-conscious schooling in the highest court in the country.

The decision was made by individuals who had every chance to issue a ruling that lived up to the American value of equality in opportunity. Forty-eight collective years of higher education lies between the six justices who struck down affirmative action. Among them is several decades of experience in the legal system. Among them is a Black jurist who grew up in the height of the Jim Crow South. Among them is more than enough time and knowledge to understand the depths of American racism. The gravity of what racial minorities, especially Black Americans, must overcome in order to even apply to colleges and universities is no secret. Oftentimes, we as a society criticize regressive decisions by those in power as errors or mistakes, but these descriptors are only apt for choices made in haste or with a lack of information. The ruling in Students for Fair Admissions was made under no such conditions. Instead of granting these highly educated judges the benefit of the doubt, what they have done today must be designated as an unmitigated wrong.

Setbacks such as this remind us of the eternal importance of producing race-conscious legal minds. Without a culture of solidarity that challenges institutional oppression in all available channels, this is the future of our law. Legal rulings and policies that reify fundamental unfairness and paint all pathways of enrichment as zero-sum competitions will define our society. However, every day is a new opportunity to combat systemic inequity. Our community is vibrant with future leaders and changemakers who will not tolerate these outcomes. The Harvard Black Law Students Association commits to being at the forefront of the struggle for a brighter, more equitable future. We plan to launch mentorship initiatives to support fellow law students in their efforts, reach out to undergraduates to encourage admissions, and continue fostering a culture of involvement within the Cambridge community and beyond in order to build a better law of tomorrow.

In the recent complaint filed by the Chica Project, the African Community Economic Development of New England (ACEDONE), and the Greater Boston Latino Network (GBLN), we receive a glimpse into the potential power of interracial solidarity as a force to dismantle inequity. Shining a light on the hypocrisy of conservative attacks on race-conscious admissions, the lawsuit targets Harvard’s legacy preference policy which flags applicants who are related to wealthy Harvard donors or Harvard alumni for “special solicitude” and “extra ‘tips’” throughout their application process. The result: “donor-related applicants were nearly 7 times more likely to be admitted” than non-donors over a period from 2014-2019 and legacy applicants were “nearly 6 times more likely to be admitted.” Nearly 70% of donor and legacy applicants are white respectively. This complaint lays bare the systemic benefits enjoyed by white wealthy people that necessitated affirmative action programs in the country. In order to even marginally improve the likelihood of non-white individuals accessing the resources of higher education, some remedial action was required. Hopefully, this lawsuit and others filed by activist lawyers throughout the country in the future can help reduce the structural hostility towards marginalized communities in schooling and beyond.

The task ahead is much greater than the legal field. It is up to all of us to fight against the systems that hold us in place and pit us against one another. It is up to all of us to stand together for what is right, and redefine justice for our communities in a country that has repeatedly failed us. We must organize in our communities, we must challenge leaders to do better and replace them when they fail, and we must strive to learn from and educate those around us about the struggles we face. Most of all, we must care for each other. The only way through these times is together.