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Opinion


OPINION: THE SUPREME COURT’S ULTIMATE ‘JUDICIAL ACTIVISM’: STRIKING DOWN
AFFIRMATIVE ACTION IN COLLEGE ADMISSIONS

Activists outside the Supreme Court supported affirmative action in admissions,
now banned at both public and private universities.
(J. Scott Applewhite / Associated Press)
By Erwin Chemerinsky
June 29, 2023 10:10 AM PT
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For decades, conservatives have railed against judicial activism, but Thursday’s
decision striking down affirmative action by colleges and universities in
admissions was the height of conservative judicial activism. The court rejected
almost half a century of precedents, overturned decisions made by public and
private universities across the country, and ignored the history of the 14th
Amendment of the Constitution.

The experience of California — where affirmative action was eliminated by
Proposition 209 in 1996 — shows that it still will be possible to have diversity
in higher education, but it will take sustained effort and it will be difficult.

In 1978, in University of California vs. Bakke, Justice Lewis Powell wrote the
pivotal opinion and explained that colleges and universities have a compelling
interest in having a diverse student body and may use race as one of many
factors in admissions decisions to benefit minorities and enhance diversity. The
Supreme Court reaffirmed this in 2003 in Grutter vs. Bollinger and again, most
recently, in 2016, in Fisher vs. University of Texas, Austin. For decades,
universities across the country have based their admissions policies on these
holdings.


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OPINION: WHY TODAY’S SUPREME COURT DECISION ON VOTING RIGHTS IS SUCH A SHOCK

The decision in Allen vs. Milligan is most significant for what the court didn’t
do: It did not further weaken the law of voting rights as many expected.

June 8, 2023

What changed in a mere seven years? Donald Trump appointed three justices: Neil
Gorsuch, Brett Kavanaugh and Amy Coney Barrett. They joined the three
conservative dissenters in the Fisher case — John G. Roberts Jr., Clarence
Thomas and Samuel Alito — to overturn 45 years of precedents allowing
affirmative action. As they did last year in overruling Roe vs. Wade, the
conservatives on the court paid no attention to the principle of stare decisis
and following precedent.

Nor did the conservatives on the court pay attention to the judgment of
university educators that diversity in the classroom matters in education. I
have been a law professor for 43 years and have taught classes that are
overwhelmingly white and those with a significant number of minority students.
The discussions in the classrooms are vastly different and the educational
experience for all students is enhanced when there is diversity.



As Justice Sandra Day O’Connor explained in the Grutter decision, preparing
students for our diverse society requires that they experience diversity. But
the six conservative justices have now substituted their views and flatly
rejected decades of experience of those in higher education.

And nor did the conservative justices who profess to be originalists, and are
committed to following the original meaning of the Constitution, pay attention
to the history of the 14th Amendment. The Congress that ratified it in 1868 also
adopted race conscious programs, like the Freedman’s Bureau that today
undoubtedly would be considered affirmative action.

Opinion


OPINION: THE SUPREME COURT SAYS CALIFORNIA CAN REGULATE PORK. THAT’S BIG, EVEN
IF YOU’RE NOT A PIG

The justices rejected the argument that the ‘dormant commerce clause’ principle
prohibits Proposition 12 from affecting how Iowa farmers raise their pigs.

May 11, 2023

Justice Sonia Sotomayor, in a powerful dissent, cuts straight to the status of
race in this country and explains why the Supreme Court itself has affirmed over
and over again that affirmative action is constitutional. She wrote: “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. 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.”

The court’s decision on Thursday will have an enormous impact because it applies
to all colleges and universities, public and private. There were two cases, one
against a public university, University of North Carolina, and one against
Harvard College, a private institution. The majority opinion, written by Chief
Justice Roberts, said that the equal protection clause of the 14th Amendment
outlaws affirmative action for public universities and that Title VI of the
Civil Rights Act of 1964, which prohibits recipients of federal funds from
discriminating based on race, prohibits it in private colleges.

The experience in California shows what could happen at universities all over
this country. Proposition 209 had an immediate and devastating effect on
diversity in the University of California. The number of Black and Latino
first-year students fell by 50% in the years immediately after the ballot
measure was passed. It took UCLA 19 years, until 2015, to reach its
pre-Proposition 209 levels of diversity.

But the UC system — and state institutions in states like Michigan and
Washington that also abolished affirmative action — have found ways to achieve
diversity through concerted efforts. There still can be aggressive outreach and
recruitment of students to form a diverse campus community.

Opinion


EDITORIAL: SUPREME COURT’S AFFIRMATIVE ACTION BAN IS A CATASTROPHIC BLOW TO THE
AMERICAN DREAM

If they truly want a diverse student body, colleges and universities must
eliminate all other preferential admissions policies, especially for legacy
applicants.

June 29, 2023

Also, Roberts explicitly wrote, “Nothing in this opinion should be construed as
prohibiting universities from considering an applicant’s discussion of how race
affected his or her life, be it through discrimination, inspiration, or
otherwise.”

This appears to allow admissions decisions to examine the diversity of
experience, which includes the importance of race, in the applicant’s life. And
as Sotomayor wrote, universities may consider other factors — like socioeconomic
status — that may yield diversity. But the court left unclear whether any
factors used in admissions decisions to achieve diversity are constitutional if
they are done with the purpose and effect of increasing access for minority
applicants.

The immediate impact of Thursday’s decision cannot be overstated. At least in
the short term, there will be a dramatic change in admissions decisions and
students of color will be harmed. It is crucial to remember that this decision
is not about following legal principles as they have stood and been tested over
and over for a generation. It is entirely about the ideology of six
conservatives on the court again moving the law far to the right.

Erwin Chemerinsky is a contributing writer to Opinion and the dean of the UC
Berkeley School of Law. His latest book is “Worse Than Nothing: The Dangerous
Fallacy of Originalism.”

OpinionOp-Ed
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