Opinion | The Supreme Court replaces affirmative action with a lie

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Today’s Supreme Court decisions that say affirmative action admissions programs at the University of North Carolina, the flagship university of my state, and Harvard College “cannot be reconciled with the guarantees of the Equal Protection Clause“ represent a perjury by the court’s majority concerning America’s past, present, and future. The decisions claim that the injustice of the past has not resulted in any injustices today and that getting rid of programs to address past and present injustices won’t have a devastating impact on our future.

For me, as a person of faith, affirmative action is central to the work of God. It is a tool of justice. Overcoming lies and the sin of discrimination by employing affirmative action is at the heart of the biblical call for love, truth, mercy and grace. However, the Supreme Court’s decision Thursday that upends affirmative action in college admissions violates the moral vision of not just the Bible but also the U.S. Constitution.

Today, six members of the court turned back what so many of my ancestors and Thomas’ ancestors fought for and won.

The 14th Amendment, put in place after slavery to guarantee all people equal protection under the law, was just abused by the majority of the court. Edward Blum, who brought this case before the court, previously used a white student named Abigail Fisher to challenge affirmative action in college admissions. He lost that case in 2016. But in this case, Blum, who leads an anti-affirmative action group called Students for Fair Admissions, decided to pit minority groups against each other: Asian Americans versus African Americans and other people of color.

Fisher complained that she didn’t get into the University of Texas because of Black people. In this case, Asian students complained they did not get into Harvard and UNC because Black students and Latinos are shown favoritism.

Though we cannot make this merely a Black and white issue, America’s history of race is crucial to understanding the issue. The 14th Amendment, which was added to the Constitution to counter the harms of slavery, has been used to expand protections for minorities in the United States since the Warren Court, but those days appear to be over.

If Chief Justice John Roberts, the white man who wrote the majority opinion, and Justice Clarence Thomas, the Black man who wrote a concurring opinion, believe that no further action is needed to undo all the damage of 400 years of slavery and Jim Crow, then they can just as easily justify rolling back protections for women, the disabled and others who’ve found protection under the 14th amendment.

Abigail Fisher

Thomas called the programs in question “rudderless, race-based preferences designed to ensure a particular racial mix in the entering classes” and wrote that they “fly in the face of our colorblind Constitution and our nation’s equality ideal.”

Thomas’s acknowledgement that he was the beneficiary of affirmative action, but he felt bad being such a beneficiary, is an insidious form of self-hatred for which there is no cure but a divine change of heart.

A recent study published by the Brookings Institution found that a significant gap in college admissions persists between white students and their Black and Latino peers, even when they have had the same academic preparation. In light of this reality, today’s ruling is an outrage.

Today’s decision promotes the lie that success is the result only of individual choices and the lie that social structures have no bearing on success.

Today, six members of the court turned back what so many of my ancestors and Thomas’ ancestors fought for and won. I can hear, in the spirit, the groans of our ancestors. They aren’t asking us to fight; they expect it of us. African Americans and all justice-loving people must mobilize a massive fusion coalition that can impact every race in the country, from the presidency to state legislatures. We can and must put extremists out of office. And when our votes create a new slate of leaders, Congress must act immediately to fix voting rights and affirmative action, living wages and a woman’s right to choose.

Racism is not over. In my state, the legislature recently has been caught passing discriminatory policies with racist intent. This Supreme Court now says affirmative action is no longer needed in admissions, but only six years ago the Supreme Court upheld a lower court’s decision which found that my state’s legislature targeted African Americans with voter suppression legislation with “almost surgical precision.”

Today’s decision promotes the lie that success is the result only of individual choices and the lie that social structures have no bearing on success. Affirmative action does not admit unqualified students; it makes sure qualified students are not wrongly denied, and it says you cannot have an institution that benefits from the tax dollars of all people and use those resources to perpetuate the social advantage caused by past discrimination.

Contrary to what Blum’s advocacy suggests, decisions regarding affirmative action should not be made based on how students feel or how students felt. Affirmative action is about the right to belong, the right to not to be denied access to public goods. Racism is not about feelings; it’s about hard facts and the structures that reproduce unequal outcomes. It’s irrelevant that some students made it without affirmative action. Justice insists that the system should not perpetuate disadvantage and that all Americans should have equal opportunity.

But this is not our reality. Students from the top 1% of families by income are 77 times more likely to get into an Ivy League college than those from the bottom 20%. Affirmative action proponents don’t argue someone should automatically get in because they come from a disadvantaged position. The argument is that a history of disadvantage could be considered during admissions decisions to give consideration to those who would have otherwise been overlooked. Today’s decision takes away that possibility. It is a gross miscarriage of justice.

This decision will have an immediate impact on Black and Latino students and families, but it will also have devastating long term effects on the nation. These extreme justices and their Federalist Society backers either don’t see or don’t care that they are undermining the nation’s possibilities. But such an extreme decision may serve to further reveal to the majority of Americans that justice-loving people cannot give up. While these justices may have a majority, they cannot override God’s truth and the higher law of love. We must, like those before us, keep standing, keep speaking truth, and keep mobilizing. Bad decisions of the past were eventually overturned, and this decision, too, shall be overcome.

The Rev. Dr. William Barber

The Rev. Dr. William J. Barber II is founding director of the Center for Public Theology and Public Policy at Yale Divinity School.

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