The U.S. Supreme Court upended decades of precedent again when it gutted the use of affirmative action in college admissions. In a lengthy dissent, Justice Sonia Sotomayor provided an essential history of slavery, Reconstruction, racial discrimination, and the centuries of progress in the fight for equality in education.
“Today, this Court stands in the way and rolls back decades of precedent and momentous progress,” Sotomayor wrote. “In so holding, the Court cements a superficial rule of colorblindness as a constitutional principle in an endemically segregated society where race has always mattered and continues to matter,” Sotomayor continued in her 69-page dissent.
“The Court subverts the constitutional guarantee of equal protection by further entrenching racial inequality in education, the very foundation of our democratic government and pluralistic society,” she wrote. Sotomayor pointed out that this same conservative-packed court that won’t allow race-conscious admissions but is happy to sanction racial profiling by the police. “The result of today’s decision is that a person’s skin color may play a role in assessing individualized suspicion, but it cannot play a role in assessing that person’s individualized contributions to a diverse learning environment,” she wrote.
“Entrenched racial inequality remains a reality today,” Sotomayor said. “That is true for society writ large and, more specifically, for Harvard and the University of North Carolina (UNC), two institutions with a long history of racial exclusion.”
“Ignoring race will not equalize a society that is racially unequal,” Sotomayor continued. “What was true in the 1860s, and again in 1954, is true today: Equality requires acknowledgment of inequality.”
Justice Ketanji Brown Jackson was even more biting in her dissent.
With let-them-eat-cake obliviousness, today, the majority pulls the ripcord and announces “colorblindness for all” by legal fiat. But deeming race irrelevant in law does not make it so in life …
No one benefits from ignorance. Although formal racelinked legal barriers are gone, race still matters to the lived experiences of all Americans in innumerable ways, and today’s ruling makes things worse, not better. The best that can be said of the majority’s perspective is that it proceeds (ostrich-like) from the hope that preventing consideration of race will end racism. But if that is its motivation, the majority proceeds in vain.
Jackson also took particular aim at Justice Clarence Thomas, using a two-part footnote to blast him for not bothering to carefully read her or Sotomayor’s dissents before deciding to mock them in his concurring opinion. His “prolonged attack,” she wrote, “responds to a dissent I did not write in order to assail an admissions program that is not the one UNC has crafted.”
”He does not dispute any historical or present fact about the origins and continued existence of race-based disparity (nor could he), yet is somehow persuaded that these realities have no bearing on a fair assessment of ‘individual achievement.’. JUSTICE THOMAS’s opinion also demonstrates an obsession with race consciousness that far outstrips my or UNC’s holistic understanding that race can be a factor that affects applicants’ unique life experiences ...
JUSTICE THOMAS ignites too many more straw men to list, or fully extinguish, here. The takeaway is that those who demand that no one think about race (a classic pink-elephant paradox) refuse to see, much less solve for, the elephant in the room—the race-linked disparities that continue to impede achievement of our great Nation’s full potential. Worse still, by insisting that obvious truths be ignored, they prevent our problem-solving institutions from directly addressing the real import and impact of ‘social racism’ and ‘government-imposed racism,’ … thereby deterring our collective progression toward becoming a society where race no longer matters.
Both note a carve-out Chief Justice John Roberts wrote for military academies, which can still use race-based criteria for admissions. Jackson interprets that as the majority concluding “racial diversity in higher education is only worth potentially preserving insofar as it might be needed to prepare Black Americans and other underrepresented minorities for success in the bunker, not the boardroom.”
Sotomayor attempts, and only partially succeeds, to conclude her dissent on a note of optimism. “Notwithstanding this Court’s actions, however, society’s progress toward equality cannot be permanently halted. Diversity is now a fundamental American value, housed in our varied and multicultural American community that only continues to grow,” she wrote. “The pursuit of racial diversity will go on.”
”Although the Court has stripped out almost all uses of race in college admissions, universities can and should continue to use all available tools to meet society’s needs for diversity in education. Despite the Court’s unjustified exercise of power, the opinion today will serve only to highlight the Court’s own impotence in the face of an America whose cries for equality resound. As has been the case before in the history of American democracy, ‘the arc of the moral universe’ will bend toward racial justice despite the Court’s efforts today to impede its progress. Martin Luther King ‘Our God is Marching On!’ Speech (Mar. 25, 1965).”