Historically, the Supreme Court of the United States (SCOTUS) has taken a very interventionist role that touches virtually every aspect of social welfare policy. Because many policy disputes become legal questions, the Court has a crucial role in making social policy, from which it has not shied away. If, as Martin Luther King said, “The arc of the moral universe is long but it bends toward justice”, in the US, it needed the firm intervention of SCOTUS. From the 1950s era of civil rights struggle of the minority African-American, their landmark “Brown vs Board of Education (1954) outlawed segregation based on race in schools. SCOTUS stood as a beacon to ensure that justice in delivering education – a foundation of progress – was served. But in a decision issued last Thursday, some claim that the arc has reached an inflection point away from justice.
After Brown, governmental policy moved towards instituting affirmative action – which was introduced under the Civil Rights Act of 1964 in several areas of government hiring. Several universities, especially the elite ones, introduced race as one of the criteria for selecting students for admission into competitive programmes, to supposedly compensate for historical unfair disadvantages based on race. For instance, the University of California, Davis School of Medicine, established a programme to designate 16 of the 100 spots in each class for minority students. There was an immediate backlash at this “reverse discrimination”, and recourse was taken to the courts by one White individual, Bakke, on the ground that the constitution guaranteed equal protection under the law.
In the landmark 1978 case, Regents of the University of California vs Bakke, SCOTUS ruled that the fatal flaw in …[UC’s] preferential program is its disregard of individual rights, as guaranteed by the Fourteenth Amendment.” More explicitly, the Court struck down the imposed racial quota as unfair, since, they pointed out, while minorities were vying for 100 places, whites were vying for only 84. Critically, however, the Court asserted the legality of a program for admission that considered race as one of the factors for admission. In this formulation, no one group was specifically excluded. And this remained the law for 45 years – until Thursday.
In a 6-3 decision, SCOTUS ruled that race-based affirmative action in college admissions is no longer legal. As Chief Justice John G. Roberts Jr. wrote in the majority opinion, “The student must be treated based on his or her experiences as an individual — not on the basis of race. Many universities have for too long done just the opposite. And in doing so, they have concluded, wrongly, that the touchstone of an individual’s identity is not challenges bested, skills built, or lessons learned, but the colour of their skin. Our constitutional history does not tolerate that choice.” He was joined by five other Justices, including Justice Clarence Thomas, who is Black. An applicant can still mention race as part of his/her personal experience, but does not get an automatic pass by ticking a “race” box.
Dissenting Justice Sonia Sotomayor, the court’s first Latina, and a proponent of affirmative action, read parts of her opinion from the bench. She was joined by Justices Elena Kagan and Ketanji Brown Jackson, the latter being Black. She stated: “The devastating impact of this decision cannot be overstated. The majority’s vision of race neutrality will entrench racial segregation in higher education, because racial inequality will persist so long as it is ignored.” The elite colleges have already stated that their proportion of Blacks and Latinos will decrease, while Whites and Asians will increase, and decrease the diversity of the student population.
In Guyana, there have been calls for affirmative action based on race in several areas of our national life, and the American experience should be reviewed by both proponents and opponents. In the meantime, US President Biden disagreed vehemently with the decision because he feels that affirmative action by the schools helps to deal with “discrimination” that he feels still exists in America.
