Essay: Equality, Equity or Justice for All?

It has been several months since U.S. Supreme Court ruled that race-conscious admissions programs are unlawful. The 6-3 decision in the case of Students for Fair Admissions Inc. v. President and Fellows of Harvard will undoubtedly shape the future of affirmative action policies and have significant implications for society as a whole.

Background on affirmative action

Top colleges know that their admissions process is a significant force shaping the nation’s governing class. It knows, now more than ever, that the people it admits are likely to exercise real power in the United States. Look at the Supreme Court, Congress, the New York Times, and other organs of American government, both official and unofficial.

In a democracy, representation is an essential principle. If Harvard, Yale and Princeton are curating our elite, then it makes perfect sense — for reasons of political stability and fairness — to make sure that people of all races are well represented in those classes. This is a consideration that is perennial in government and in life — it is why English kings once contemplated giving out peerages to loads of Labour members and Catholics, to balance an overly Tory and Protestant body.

Affirmative action is a policy that aims to address historical and ongoing disparities by providing preferential treatment to individuals from marginalized groups in areas such as employment, education and business contracts.

In the context of higher education admissions, affirmative action seeks to promote diversity and create a level playing field for underrepresented students, particularly those from racial and ethnic minorities. However, this policy has long been a subject of legal challenges, with critics arguing that it amounts to reverse discrimination and violates the principle of equal protection under the law.

Here in New Hampshire, affirmative action is, debatably, already considered illegal because of the Right to Freedom from Discrimination in Public Workplaces and Education Act described in Section 354-A of the New Hampshire Statutes. Debatably because some say this act is at odds with the Article 2 of the New Hampshire Constitution Bill of Rights, which reads, “Equality of rights under the law shall not be denied or abridged by this state on account of race, creed, color, sex or national origin.”

In fact, there is a case currently pending (1:21-cv-01077-PB) in the U.S. District Court of New Hampshire on this very issue. Similar legislation has been passed on other states with similar challenges.

The case: a closer look

The Supreme Court’s majority opinion, which all six conservative justices joined, stated that the court has “permitted race-based admissions only within the confines of narrow restrictions. University programs must comply with strict scrutiny, they may never use race as a stereotype or negative, and — at some point — they must end.”

This accepts the argument that affirmative action policies perpetuate discrimination by providing preferential treatment based on race and that such policies undermine the principles of meritocracy and equal opportunity, potentially disadvantaging qualified applicants who do not belong to underrepresented groups.

Interpretations

The ruling has been met with mixed reactions. Some people outside the Supreme Court believe this is a step forward for the country, a cessation of racial discrimination against white people.

Others believe that it is a step backward, that it ignores the fact that minority students who were being admitted were qualified to be admitted in the first place. They believe it is an endorsement of preferential treatment based on race that will discourage people of color from applying to college, leading to a widening of the wealth gap that already exists with the average wealth of a white family being 10 times that of the average Black family.

NAACP General Counsel Janette McCarthy Wallace said the decision “ignored fundamental civil rights guaranteed by our Constitution and years of judicial precedent to advance a politically partisan agenda.” Many question whether the ruling calls for: equal treatment? Equitable treatment? Justice for some? Justice for all?

Implications and ways forward

The ruling leaves room for interpretation and potentially sets a precedent for future challenges to affirmative action policies. Yet, the court did affirm the constitutionality of race-conscious admissions policies recognizing the role of universities in creating diverse learning environments that benefit all students. In doing so, it reinforced the importance of narrowly tailored approaches that consider alternative race-neutral methods before resorting to race-conscious considerations.

Critics of the Supreme Court decision argue that race should not be a factor in admissions decisions and that alternative approaches — such as socioeconomic factors or geographic diversity — should be prioritized. Following this approach, academic institutions (and all organizations) can implement race-conscious policies that withstand strict scrutiny while addressing historical and ongoing disparities.

Conclusion

But the ruling does raise some interesting questions. Was the ruling inevitable? When should affirmative action stop? Who gets to say when it should stop?  How should it stop? To answer these questions, we need a national discussion of reparations.

Only then will we come to a common understanding of how to navigate the path toward greater equality and inclusivity, finding the delicate balance between diversity and equal opportunity that remains a complex and pressing task.

This article is featured in the winter 2023 issue of 603 Diversity.

603 Diversity’s mission is to educate readers of all backgrounds about the exciting accomplishments and cultural contributions of the state’s diverse communities, as well as the challenges faced and support needed by those communities to continue to grow and thrive in the Granite State.

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