The US Supreme Court’s decision on Thursday to overturn almost 50 years of precedent and strike down the ability of colleges and universities to employ race-conscious admissions policies was not unanticipated. Right-wingers with influence in Congress and with the courts have long advocated for overturning what educators know to be a valid and necessary form of affirmative action. However, the inequities that required the development of affirmative action programs decades ago have yet to be eliminated, as Justice Ketanji Brown Jackson noted in a scathing dissent from the court’s 6-3 ruling in the case of Students for Fair Admissions v. University of North Carolina, where she wrote: “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.”
Justice Sonia Sotomayor echoed that view in her dissent from the court’s 6-2 ruling in the case of Students for Fair Admissions v. President and Fellows of Harvard College, where she explained that the decision “subverts the constitutional guarantee of equal protection by further entrenching racial inequality in education, the very foundation of our democratic government and pluralistic society.” Ignoring race, Sotomayor argued, “will not equalize a society that is racially unequal. What was true in the 1860s, and again in 1954, is true today: Equality requires acknowledgment of inequality.”
President Biden acknowledged that truth Thursday, stating, “We cannot let this decision be the last word,” and reminding people that, “while the court can render a decision, it cannot change what America stands for.”
Now, progressives have to figure out how to develop a political consensus for reversing the court’s destructive assault on race-based admissions policies—judicially and legislatively. To win this fight, it’s vital to put things in perspective—not with vague or apologetic assertions but with arguments that are as dynamic as those made by Justices Jackson and Sotomayor.
US Representative Jamaal Bowman, a New York Democrat who also happens to be one of the most experienced educators on Capitol Hill, knows exactly how to do that—as he illustrated with a comprehensive response to Thursday’s decision.
Bowman, a former public school teacher and principal who has a doctorate in educational leadership, argued that race-conscious admissions policies “are critical to ensuring that our Black and brown students, who have already experienced redlining and systemic underinvestment in their schools and communities, have an equitable shot at higher education to pursue their dreams.”
The congressman, Capitol Hill’s most serious and effective communicator on education issues, put the broader discussion of affirmative action in perspective when he said:
We all benefit from diversity in our schools. It is the key to learning from and understanding each other. Our education system is already plagued with inequities, from racially biased standardized testing to legacy and donor-based admissions that favor generational wealth. Affirmative action is essential to racial and economic justice in education. We must commit to fighting back against this devastating decision and to promoting equitable access to higher education for our Black and brown students. This means canceling student debt, ensuring everyone has access to free public college, and passing my Fair College Admissions for Students Act, which would end the legacy and donor-based admissions practices that favor the white and wealthy. Our democracy depends on equity in education from preschool to college to vocational school and beyond so that every young person in our country has access to the tools they need to unlock their brilliance and reach their full potential.
The Fair College Admissions for Students Act, which Bowman proposed with US Senator Jeff Merkley (D-Ore.) in the 117th Congress, and which they plan to reintroduce in this Congress, focuses on a frequently neglected form of affirmative action that primarily benefits wealthy white people—and that the court has permitted to stand. Specifically, it would end colleges’ and universities’ practice of giving legacy admissions preferences to the children of alumni and donors. As Bowman and Merkley note, “Legacy admissions can take up between 10 and 25 percent of available slots at top universities. Some estimates indicate that applying as a legacy student can double to quadruple one’s chances of getting into a highly selective university. In using legacy and donor status in admissions decisions, institutions give preference to students whose families attended or donated to the university, reducing the opportunities for the descendants of enslaved African Americans who built and maintained many of these institutions and other underrepresented students.”
Backed by the American Civil Liberties Union, which says, “The Fair College Admissions for Students Act would help address our country’s long history of race discrimination and inequities in education,” and by the group Education Reform Now, which says, “The legacy preference undermines diversity, fails to reward true achievement, and is profoundly un-American,” the act attracted support from Congressional Progressive Caucus chair Pramila Jayapal (D-Wash.) and US Representative Jan Schakowsky, an Illinois Democrat who is a senior member of the House Democratic Caucus with close ties to congressional leadership and the White House.
Bowman was highlighting the legislation after the high-court ruling came down Thursday, declaring, “All students deserve an equitable opportunity to gain admission to institutions of higher education, but students whose parents didn’t attend or donate to a university are often overlooked in the admissions process due to the historically classist and racist legacy and donor admissions practices at many schools across the country. ” As usual, his timing could not have been better, because this fight is going to need clear messages like that of the veteran educator and congressman:
“To build a future in which the unlimited potential of our communities are untapped, historical policy harm is addressed, and opportunities for economic, educational, and social advancement are within reach, we have to ensure our policies reflect equity and inclusion—including at our institutions of higher education. The legacy admissions practice which disproportionately benefits rich, white, and connected students, and has antisemitic and anti-immigrant roots, creates another systemic barrier to accessing higher education for low-income students, students of color, and first-generation students. Senator Merkley and I say exclusionary practices must end and Congress must prohibit these unfair and inequitable practices. Our legislation helps students of all backgrounds receive equitable and fair consideration during the admissions process and helps us manifest a future in which every student regardless of who they are or where they come from has a fair shot.”
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