Once again, there are many candidates for the worst legal decision of the year. There are, in fact, too many to provide a comprehensive list.
To list just a few, I would point to Louisiana’s shenanigans with its capital clemency process, the Fifth Circuit’s decision last August imposing significant restrictions on patients’ access to the abortion pill mifepristone and on the federal regulatory process, and this month’s Eighth Circuit decision invalidating private enforcement of the Voting Rights. Other candidates for this year’s most infamous uses of law include the Supreme Court’s tortured decision in 303 Creative allowing discrimination against gays and lesbians, its refusal to hear a challenge to Illinois’s cruel use of solitary confinement, and the continued use of lethal force by police in jurisdictions across the country, resulting in the deaths of a disproportionately large number of people of color.
In still another special group must go almost anything the Florida legislature passed and Gov. Ron DeSantis signed into law.
Amid so many missteps and missed opportunities, the worst of all was the Supreme Court’s June 29 decision in Students for Fair Admissions v. Harvard ending affirmative action in higher education. It was a huge setback for efforts to dismantle the ongoing privilege of whiteness in the United States and is symptomatic of resistance among movement conservatives on and off the Court to efforts to build a more inclusive society.
In both respects, Students for Fair Admissions is a deeply undemocratic decision. At a time when American democracy needs all the shoring up it can get, the Court turned its back on that effort.
Will this country be better served by lessening the racial diversity in the student bodies of America’s colleges and universities? The answer, I believe, is clearly no.
Forbes Magazine’s Jeff Raikes got it right when he wrote that “Ending affirmative action will only compound the many lingering and systemic racial inequities that people of color still face today. It will also accelerate a national trend toward widening inequality that already endangers our democratic way of life.”
Of course, long before the Roberts Court decided Students for Fair Admissions, critics of affirmative action had branded it with the catchy phrase “affirmative discrimination.” They argued repeatedly that the supposed beneficiaries of affirmative action were stigmatized by it, and suggested that those people had to live with the constant suspicion that they were not good enough to succeed without a race-based quota.
Critics argued that affirmative action benefited only the most privileged members of minority racial groups and that effort would be better spent addressing the disabling problems of schools in America’s inner cities. As Stephen Carter put it in 2008, “those who suffer most from the legacy of racial oppression are not competing for spaces in the entering classes of the nation’s most selective colleges.”
These criticisms have gained traction among the American people.
In the spring of this year, more than half of the respondents to a national survey disapproved of the use of race and ethnicity by colleges and universities to “increase racial and ethnic diversity…. A third of adults approved of this, while 16% were not sure.” Unlike last year’s abortion decision, the affirmative action ruling has not put the Court at odds with the American people.
One poll found that 61% of its respondents approved of the Supreme Court’s decision in Students for Fair Admissions and “only a small chunk of the electorate believes admissions in higher education will become more unfair or harmful to diversity efforts as a result.”
I am among that small chunk.
Last summer, I joined a large number of faculty at Amherst College in expressing our view that, “Diversity is thus more than just a ‘commendable goal’ that a college or university may or may not decide to strive for. It is a core principle of all genuine higher learning. It is a nonnegotiable precondition for any real pursuit of truth. It is central to the profession to which we’ve dedicated our lives.”
“Diversity,” we wrote, “is indispensable for the vitality and vibrancy of our classrooms. It helps everyone when students use their varied life experiences to challenge taken-for-granted assumptions, offer fresh and often unexpected perspectives on course materials, and resist ‘group think.’ The talents that students from all walks of life and from traditionally marginalized racial groups bring to the academic work we ask them to do are extraordinary.”
And, as Amherst College noted in the brief it submitted to the Court in support of affirmative action, “Diversity—including racial diversity—meaningfully improves learning experiences, complex thinking, and non-cognitive abilities. … [E]ncounters with others holding different views and possessing different backgrounds train and sharpen students’ minds to a greater degree.… These benefits are shared by all students, regardless of race.”
Chief Justice John Roberts’s majority opinion in Students for Fair Admissions didn’t quarrel with those claims. Instead, Roberts insisted that “the interests that respondents view as compelling cannot be subjected to meaningful judicial review.”
Among the interests that the Chief Justice thought fell into that category were “training future leaders, acquiring new knowledge based on diverse outlooks, promoting a robust marketplace of ideas, and preparing engaged and productive citizens.” While Roberts lauded them as “commendable goals,” he said that “they are not sufficiently coherent for purposes of strict scrutiny. It is unclear how courts are supposed to measure any of these goals, or if they could, to know when they have been reached so that racial preferences can end.”
The question “whether a particular mix of minority students produces ‘engaged and productive citizens’ or effectively ‘train[s] future leaders,’” Roberts concluded, “is standardless.”
“Not sufficiently coherent,” “standardless”—these terms struck me then, and even more so now, as judicial double-speak. Indeed those interests were sufficiently coherent and recognizable that the Court had used them repeatedly to uphold affirmative action in a series of prior cases that Roberts chose to toss aside.
As Justice Sonia Sotomayor noted in her dissent in last June’s case, “Since Bakke, the Court has reaffirmed numerous times the constitutionality of limited race-conscious college admissions.” Those decisions, she observed, recognized that “Racially integrated schools improve cross-racial understanding, ‘break down racial stereotypes,’ and ensure that students obtain ‘the skills needed in today’s increasingly global marketplace’ . . . through exposure to widely diverse people, cultures, ideas, and viewpoints….”
That is particularly true, Sotomayor wrote, “in the context of higher education, where colleges and universities play a critical role in ‘maintaining the fabric of society’ and serve as ‘the training ground for a large number of our Nation’s leaders.’… It is thus an objective of the highest order, a ‘compelling interest’ indeed, that universities pursue the benefits of racial diversity and ensure that ‘the diffusion of knowledge and opportunity’ is available to students of all races.”
Students for Fair Admissions qualifies as the worst legal decision of 2023 because of the damage it does to the as-yet unrealized aspiration of our democracy to be genuinely inclusive and egalitarian. It moves us backward and ensures that racial inequities will worsen.
As Raikes puts it, the end of affirmative action in colleges and universities will erode the fabric of democratic life as more students of color “get closed out of the pathways to power and prosperity that higher education brings.”
