Last week, the United States Supreme Court released a series of critical decisions on ending affirmative action in higher education programs—other than military academies—, blocked student loan forgiveness, and expanded a business owner’s right to refuse services to same-sex couples.
The City University of New York Law Review (“CUNY Law Review”) is committed to centering historically and presently marginalized perspectives. We prioritize a lens that highlights the realities and consequences of structural oppression and collaborates with those seeking to upend these structures. As such, we are deeply disappointed, but unfortunately not surprised, by the Supreme Court’s decision in these cases.
In Students for Fair Admissions, Inc.v. President & Fellows of Harvard College and Students for Fair Admissions, Inc. v. University of North Carolina, a 6-3 majority ruled that race-conscious admissions programs at both universities are unconstitutional, effectively overturning nearly 50 years of affirmative action precedent in the United States. This decision by the Court’s conservative supermajority will have sweeping effects for colleges and universities across the country, and for the many students of color looking to pursue higher education at these institutions.
The majority opinion lacks a basic understanding of the very processes it has deemed as violating the Fourteenth Amendment—arguably enacted as one of the most race-conscious amendments—and it attempts a rewriting of law and history. Most significantly, it brazenly ignores the United States’ long history of anti-Blackness and racial discrimination in education and ignores the fact that students of color face persistent systemic barriers to educational access. This blow to affirmative action is only the beginning. These reverberations of ignorance will increase pay disparity and underrepresentation in leadership positions, homogenize workplace composition, and exclude talented individuals with diverse perspectives that add to a richer, more inclusive society.
Thus, we believe in and will continue to highlight the work of those committed to creative solutions for what we can do, despite the decision. We are inspired by the powerful dissents of Justices Sotomayor, Jackson, and Kagan, as well as the many organizations who have clarified just how wrong and ahistorical this decision truly is. Most importantly, we are in solidarity with all students of color who have been historically and presently excluded from and marginalized in educational institutions. Our collective future depends on centering these voices. It depends on a creative resolve to develop and use all possible tools to expand access and opportunity to counter the detrimental impact of the decision; to soar beyond it, to reaffirm that we are here, we will not be erased, and we will continue to thrive.
We also believe it is crucial to not lose sight of the disingenuous efforts of the organizations behind these lawsuits. SFFA’s founder has initiated and supported litigation to challenge racial justice accomplishments across all areas of life, from voting to education. The initial complaint in these cases sought to address the disparate treatment of Asian American students in Harvard’s admission scheme compared to white students, not other students of color. There was ample evidence of potential discrimination against Asian American students as compared to white students. Nevertheless, SFFA eventually framed the conflict between Asian American students versus other students of color and weaponized the model minority myth to attack race-conscious measures aimed at combating institutional racism. In the end, this decision gutted affirmative action for all but white students. This was by design.
As many allies across these organizations have acknowledged, SFFA’s efforts are part of a multi-faceted and powerful attack on gains in equality and rights for Black, Indigenous, and all people of color. They are an effort to keep our communities out of institutions of learning and seats of influence, and to deny the full and dynamic reality of our communities, past and present. They are connected to whitewashing and exclusion of Black presence in history lessons for students at all levels. They are connected to Executive Orders banning diversity training and positing a false and incomplete history of the United States. They are intertwined with the suppression of voting rights for Black people and all communities of color. They are linked to banning books by authors who are people of color and LGBTQ+.
These efforts are also linked to the Court’s attempts in Biden v. Nebraska to overstep its own limited power, take policymaking into its own hands, and ignore the racialized impact of the student loan debt crisis. And, they are enmeshed with the Court’s harmful decision in 303 Creative LLC v. Eleni to further legalize discrimination against queer people, restrict expression, and undermine dignity for all in the public marketplace. This decision encourages the legitimacy and expansion of “Don’t Say Gay” bills and other explicitly anti-LGBTQ+ legislation that perpetuate bigotry and stigma in and out of the classroom.
There is a clear throughline in all of these rulings: diminishing the rights of marginalized communities and undoing decades of collective progress, organizing, and activism. Yet, this Court’s decisions need not be deemed final nor go unchallenged. The communities we align with, who are most impacted, will not be silenced.
At CUNY Law Review, we remain vigilant as ever in our mission to uplift marginalized voices and call out systems of oppression. We denounce these attempts to use law, culture, and institutions to deny—rather than expand—space, voice, and political power to an increasingly diverse and multiracial country. We will continue to fight alongside all communities seeking to dismantle systems that embolden these antidemocratic decisions.