(Photo by iStock/Douglas Rissing)
A majority on the US Supreme Court unraveled decades of case law on affirmative action this June when they found that Harvard University and the University of North Carolina’s use of race as a factor in a holistic admissions process was an unconstitutional violation of the 14th Amendment’s equal protection clause. As Justice Sonia Sotomayor noted in 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.”
In her own scathing dissent, Justice Ketanji Brown Jackson lifted up the initial promise and purpose of the 14th Amendment and gave voice to the still urgent need to address the “gulf-sized race-based gaps” in “the health, wealth, and well-being of American citizens” that persist today “Every moment these gaps persist is a moment in which this great country falls short of actualizing one of its foundational principles—the ‘self-evident’ truth that all of us are created equal.”
We can heed that call because, despite the disconcerting outcome and reasoning of this case, there is a way forward. As Justice Brett Kavanaugh’s concurrence noted, institutions “can, of course, act to undo the effects of past discrimination in many permissible ways that do not involve classification by race.” Citing the late Justice Antonin Scalia, even Justice Clarence Thomas, who has shown himself to be in every way an enemy of racial justice and progress, conceded that there have been legally permissible measures “’undo[ing] the effects of past discrimination in [a way] that do[es] not involve classification by race,’ even though they had ‘a racially disproportionate impact.’”
Indeed, the work to deepen racial equity is already underway across the country fully within the constraints of this noxious Supreme Court decision. Local government is a prime example. The Government Alliance on Race and Equity (GARE), with over 450 local and state government entities as members, employs an approach that is informed by the reality of racial equity gaps and strives to close them without using what the court describes as “racial classifications.” President Biden’s 2021 executive order on racial equity has also brought that approach across the federal government.
The GARE approach is community-driven and data-informed. Relying on insights offered by racially disaggregated data, it focuses on a set of questions that directly confront the issue of race. Questions such as “Who benefits from and who is burdened by particular policies and practices?” It also draws from an understanding of history and the experience of communities impacted negatively by the racial equity gaps Justice Jackson noted to discern why these disparities exist and what the root causes may be. With this knowledge, solutions are crafted that close racial equity gaps while improving outcomes and systems for all groups. This race-informed and race-explicit approach to policy and practice improves systems for everyone in this country because it turns out that what is harmful to Black and Latino communities is harmful to the rest of the country as well. And when we transform our institutions—especially our public institutions—into places that produce racial equity, everyone can benefit.
Examples include:
- When librarians took up the question of why children of color were not accessing our libraries at the same levels white children were, they discovered that a major obstacle was late fines. When libraries began to eliminate those fines, we closed racial equity gaps while all children benefited—including many white children from families with modest incomes who were similarly deterred.
- When local governments sought to understand why procurement contracts were not equitably accessible to businesses owned by people of color, they discovered that typical government contracts were so large only a few big companies that were overwhelmingly white-owned could effectively bid for them. When those larger contracts were unbundled and divided into smaller contracts, smaller businesses could compete. Governments still accomplished the same overall scope of work but with separate components. This opened the door for businesses of color, as well as all small businesses.
- When local governments sought to better diversify their ranks without using traditional affirmative action programs, they learned that if they gave more weight to experience rather than exclusively looking at formal education, they could form a seasoned workforce that represented the communities they served. This created opportunity for white applicants with direct experience but less formal education as well.
These approaches are deeply relevant to university admissions, where we know admissions preferences for legacy and donor families are blatant and unjust root causes that distort representation in our institutions of higher learning. Our higher learning sector is well-advised to wrestle with those issues of justice more deeply. Indeed, universities, philanthropy, K-12 schools, businesses, government agencies, and all other local and national institutions should take up explicit race-informed approaches and double down on their commitment to a country of genuine equality, where neither race, migration, gender, sexuality, nor class determines your life outcomes. As a broader society we must reject a zero-sum approach where a few prized slots are the only pathway to a better life and shared political power. Truly democratizing our country would reduce the weight of the musical chairs games of admission to elite spaces by ensuring there were enough seats and tables for all of us to play an important role.
While we fight forward and continue the long struggle for racial equity and justice by all the means available to us, we must also fight back. Our judicial institutions are important, and confidence in the Supreme Court has sunk to historic lows. Advocates for justice must demand reform of the court as a matter of the greatest urgency and reclaim a vision of a Supreme Court embodied by Justice Jackson and Justice Sotomayor dissenting opinions. Their dissents represent the future of a legitimate court that can represent all Americans and inspire us to take action in all the ways we can.
Read more stories by Cathy Albisa & Julie Nelson.