Illustration by Michael Burmesch
Supreme Court
After destroying nearly 50 years of constitutional protection for reproductive freedom allowing women to make decisions about their own lives, the next item on the agenda of former President Trump’s radical, rightwing Supreme Court is to roll back 45 years of decisions allowing colleges and universities to take race into account to create racially diverse institutions of higher learning.
Despite voters’ widespread rejection of extreme Republicans in the midterms, Trump created a rightwing supermajority eager to restore white male supremacy as if the last half century of progress toward guaranteeing equal rights for all Americans never happened. Trump appointed half of the new 6-3 majority hellbent on overturning laws protecting racial and gender equality most Americans have taken for granted for decades.
The other members of the wrecking crew were appointed by previous Republican presidents—Chief Justice John Roberts and Samuel Alito by George W. Bush and Clarence Thomas by Bush’s father in one of the most cynical court appointments in history. Thomas, the second African American justice ever appointed, replaced civil rights icon Thurgood Marshall and immediately began voting with the most extreme rightwing justices to dismantle civil rights laws.
Against Equal Rights
The sudden shock of the court abruptly ending abortion rights most women thought were permanently protected should have shattered the myth that Chief Justice Roberts was a political moderate. Roberts has never supported equal rights for either women or for racial minorities. Two of his personal goals on the court were ending abortion rights and racial remedies for decades of denying equal educational opportunities for Black and brown Americans.
Many Americans don’t realize that. Roberts has always tried to carefully protect his own reputation with the Washington media. Even though two-thirds of Americans were appalled by the court destroying abortion rights, many still think Roberts dissented from that decision. He didn’t. Roberts wrote a concurring opinion suggesting the other justices could have just modified Roe v. Wade instead of overturning it. Then Roberts joined them in the 6-3 vote throwing out the whole thing.
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Roberts prefers slowly chipping away at women’s rights and minority rights so most Americans don’t realize what they’re losing. He failed when destroying Roe created a voter backlash in the midterms.
Roberts used a rhetorical trick in 2007 to permanently end court-ordered school desegregation. Roberts wrote a decision turning upside down the meaning of 1954’s landmark Brown v. Board of Education decision declaring racially segregated schools unconstitutional. He falsely claimed Brown made it illegal for officials to assign students to schools based on the color of their skin even if they were doing it to integrate schools instead of segregating them.
Affirmative Action is Next
The most extreme version of the Roberts Court yet is now clearly ready to prevent universities and colleges from using race as one factor among others in deciding which qualified students to admit. Since 1978, the court has considered race an important factor in creating the educational benefits of a racially diverse student population.
In the opening hearing on the case, the justices, all with elite educations, had learned very different lessons. With his voice rising in disbelief, Roberts (Harvard) asked the Harvard attorney defending affirmative action: “So we’re talking about race as a determining factor in admission to Harvard?”
Justice Ketanji Brown Jackson (Harvard) considered it absurd if “a university can take into account and value all the other background and personal characteristics of other applicants, but they can’t value race” in admissions. She didn’t say so, but we all remember all the ugliness she still faced in America to gain admission to the court despite her stellar legal qualifications.
Justice Sonia Sotomayor (Princeton, Yale) said colleges weren’t giving special advantages to minority students simply by considering whether they had overcome obstacles in their lives. “What the schools are doing is looking at all the factors to try to put the students at the start as equals.”
The reaction of Justice Clarence Thomas (Yale) was typically bizarre. “I’ve heard the word diversity quite a few times and I don’t have a clue what it means.” You could imagine the cheers going up from white supremacists still fighting the racial diversity of America.
As an Indiana kid from a racially isolated small town of about 3,000, I know how profoundly it shaped my life to work and socialize with bright students of different races and cultural backgrounds at Indiana University. Creating racially diverse, multicultural universities benefits all students.
The majority justices repeatedly asked university officials how soon affirmative action would end. It was an insincere question. Those justices fully intend to end it.
But the real answer is America should never stop creating racially diverse colleges and universities to provide educational opportunities for all Americans. That should be the definition of American education and it should be affordable.
