Affirmative Action and the Myth of Color-Blindness

Photo by Taras Chernus

As expected on Thursday, June 29, 2023, the nine unelected Supreme Court Justices of the United States banned the narrow use of affirmative action in private and public college and university process. Chief Justice John Roberts, along with Supreme Court Justices Alito and Clarence Thomas, who have long advocated for the demise of race-conscious admissions, were now able to place their oft-repeated slogans, “It’s a zero-sum game,” “The way to stop discriminating on the basis of race is to stop discriminating on the basis of race,” into Constitutional law.

As expected, the vote on Thursday was 6-3 in favor of eliminating affirmative action: six right-wing ideologues happy to strike down one of the last vestiges of the Civil Rights movement’s landmark Supreme Court decisions from 1965.  “The student must be treated based on his or her experiences as an individual – not on the basis of race,” Roberts wrote in the opinion the consenting conservative justices. “Many universities for too long have 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 color of their skin. Our constitutional history does not tolerate that choice.”

In their decision, the Roberts Court dismissed all former rulings and precedents previously set by the Supreme Court and the lower courts regarding affirmative action in college and university admissions. Roberts’ majority opinion did not state if Grutter v. Bollinger, the 2003 Supreme Court opinion that ruled for the narrow use of race-conscious admissions to develop a diverse student body.

Supreme Court Justice Clarence Thomas delivered that blow himself in his written opinion that he read aloud from the bench after Chief Justice Roberts gave the majority opinion. “The Court’s opinion rightly makes clear that Grutter is, for all intents and purposes, overruled. And, it sees universities’ admissions policies for what they are: rudderless, race-based preferences designed to ensure a particular racial mix in their entering classes.”

The Myth of Colorblindness

A fantastical rendering of the “color-blind” Constitution and the demeaning of the 14th Amendment is how the Supreme Court reached its ends last Thursday.

Supreme Court Justice Thomas stated he was making the case for a “color-blind” Constitution – the same arguments that Edward Blum, the legal gadfly behind the gutting the Voting Rights Act in 2013, and the man responsible for bringing these two cases, SFFA v. Harvard v. and SFFA  v. University of North Carolina Chapel Hill v. before the Supreme Court, has repeatedly used.

“I think this is just the beginning of the restoration of really the founding principles of our civil rights movement,” Blum stated shortly after the ruling. “The founding principles were that your race and your ethnicity should not be used to help or harm you in your life’s endeavors. I think the majority of Americans will think of this as a good outcome and then be a steppingstone to other good outcomes, not just in the law but in the way we see each other.”

The 14th Amendment was incorrectly (and obscenely) utilized by Chief Justice Roberts to revoke affirmative action. The 14th Amendment, written after the Civil War to eliminate the racial discrimination practiced by whites against Blacks, has been rethought by the Chief Justice. In the Court’s reading of a “color-blind” society, the 14th Amendment now safeguards the privileges of white society whenever the fear erupts that people of color may be receiving some privilege that white society may not be receiving.

Justice Sonia Sotomayor also spoke directly from the bench last Thursday, a strategy employed by Supreme Court justices to register their dissent from a Supreme Court decision. Justice Sonia Sotomayor’s 69-page written dissent focused on the obvious barriers to achievement for students of color given the country’s history of racial discrimination.

 “Equal educational opportunity is a prerequisite to achieving racial equality in our Nation, today, this Court stands in the way and rolls back decades of precedent and momentous progress. It holds that race can no longer be used in a limited way in college admissions to achieve such critical benefits. In so holding, the Court cements a superficial rule of colorblindness as a constitutional principle in an endemically segregated society where race has always mattered and continues to matter.”

Chief Justice Roberts’ misuse of the 14th Amendment was also addressed by Justice Sotomayor, “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.”

Affirmative Action: Some History

On March 6, 1961, in Executive Order 10925, President John F. Kennedy introduced the term “affirmative action” to introduce the policy that sought to open opportunities for underrepresented groups in government contracting.  Next, President Lyndon Johnson significantly expanded the programs and goals of hiring affirmatively and used the term when he signed Executive Order 10925 in 1965.

The first time “affirmative action” was used in regards to education was in the fall of 1966 by Professor of Law, Leon Letwin, who had just received tenure from the UCLA School of Law.

In a memo written to Assistant Dean James Malone of the UCLA School of Law, Professor Letwin stated, “If, as I believe, it is highly desirable to boost sharply the enrollment of minority group students in higher education generally, and in the legal education in particular, it will not suffice to merely forbear from discrimination, affirmative action programs must be initiated.”

Thus, Professor Letwin introduced his plan for special admissions at the UCLA Law School.

In 2018, Miguel Espinoza, an attorney and judge who graduated of the UCLA School of Law,  published a compelling nonfiction narrative on the success of the affirmative action program at the UCLA Law School, The Integration of the UCLA School of Law, 1966-1978 Architects of Affirmative Action, described how Professor Letwin and his fellow law school professors organized and instituted affirmative action at UCLA in the fall of1967.

“But when Letwin used the phrase in the fall of 1966, it was nothing less than revolutionary in the field of education. And although still contemplating the details, his vision was both aggressive and far-reaching, and there were few examples to draw upon for guidance,”

As Professor Letwin and his colleagues, most notably UCLA Law Professor Richard Wasserstrom, began working on organizing the special admissions program for the UCLA School of Law, several significant decisions were made. Admissions standards for potential law students were made more flexible. “I see nothing objectionable about this in principle. It is, in fact, a logical extension of the present-day effort to mitigate and counteract the consequences of poverty and discrimination,” explained Letwin.

Professor Letwin recognized that UCLA, as one of the most prominent public institutions in California and in the country, needed to recruit potential law students from the California colleges. “And, because it served a demographically diverse community, UCLA should not only recruit Blacks, but also Mexican-Americans, Indians, and any other similar minorities,” Letwin stated as the special admissions program planning began to evolve.

Professor Letwin had a mentor in Harvard Law Professor Frank Sander. For the past few summers, Letwin had taught at the Harvard Law School’s Summer Program: a program designed to introduce minority students during their junior and senior years, to a career in law.

Letwin had corresponded with Professor Sander about the controversy regarding special admissions with a few colleagues: the whine of “reverse discrimination” began to appear.  Professor Sander conveyed the arguments used by Harvard Law School as Harvard began to recruit minority students. The “reverse discrimination” argument would often be followed by the demand to include all economically disadvantaged students.

And answers would be given by Professor Letwin and his colleagues on the need to integrate by race. Professor Letwin was convinced that a special admissions program that did not focus on race would “cast too wide a net, thereby failing to address the effects of centuries of racial discrimination. The impact of discrimination,” Letwin emphasized, “is not merely in the poverty it produces, though it does that in abundant measure, it creates a variety of problems unique to minority groups, as well as compounding those problems its members share with other disadvantaged groups. This, in my judgment, warrants the suggested focus on minority groups. It also warrants treating as relatively unimportant the fact that some minority group members may be of comfortable means.”

For the next eleven years, until 1978 when the UCLA School of Law was awaiting the judgment of the Supreme Court in the Bakke decision, the UCLA School of Law special admissions program was a success. The UCLA program evolved in its recruitment of potential law students: women of color and women were law students. UCLA Law School’s program became a model and a template around the country. The special admissions law students graduated and made extraordinary contributions in public service as prosecutors and public defenders, as academics and administrators of non-profits.

After the 1978 Bakke decision, elements of the UCLA Law School special admissions program were dismantled. In 2009, the California voters approved prohibiting affirmative action in their public universities and college. Enrollment amongst students of color in college and universities plummeted.

The explanation behind these decisions to gut programs that prove to make a far more equitable society remains the same then as today: white society does not want to live in a country where a Black person receives something and they don’t.

For the last five years, as Blum’s Harvard case clawed its way up the ladder to the Supreme Court, the academics and law profession, students and activists have been aware of the coming of the end of affirmative action as we know it. As Justice Sonia Sotomayor wrote in her dissent, the effects of this monumental decision will be felt for years to come.

Recruiting students of color and ensuring that the significant gains established by those students at the elite Ivy League campuses need to be protected and expanded.

“As demonstrated by the hundreds of pioneering men and women who graduated from UCLA’s revolutionary program in the 1960s and 1970s, America’s students of color are capable of success-and deserving of the opportunity,” is how Miguel Espinoza concluded his book on the integration process at UCLA Law School.

And, it is how we begin the next phase of challenging and eliminating every Supreme Court decision that seeks to disempower all of us.