A rally at Stanford University's White Plaza on July 5 brought together students of many races from seven universities -- Stanford, University of California Berkeley, California State Universities at East Bay, Sacramento, San Francisco, San Jose and San Diego -- who said they have deep concern and outrage over the future of access to higher education for minority students after the Supreme Court's June 29 decision against affirmative action.
Rally attendees from the Asian American community said the plaintiffs, who were Asian American, had pitted their minority group against others, namely Black and brown minorities, even though all have struggled against societal and political discrimination and racism.
Less than a week earlier, a panel at Stanford Law School also analyzed the ruling and its future impact on education for students of color, now that the court has determined race can't be used as criteria for admission in colleges and universities.
Nina Chuang, who organized the July 5 gathering, said many of her friends and fellow students had endured so much to get a college degree.
"Some of them took out loans to get that piece of paper … (and) for their families to overcome these systemic cycles of poverty and dangerous racism," she said. "These rulings directly affect our livelihood, our bank accounts, our futures, our children."
Salma Pacheco, a Sacramento State alumna, said the Supreme Court made a decision that won't impact its members. But she called out Justice Clarence Thomas, who benefited from affirmative action.
"So why is he denying that same privilege to other students?" she asked.
"I am tired. I am tired of having to fight for the same thing as generations before me," she said.
The students also received support from prominent members of the Asian American community.
"It is legalized discrimination," said Connie Young Yu, a Chinese American writer, historian and lecturer. "The majority opinion of the highest court is in the tradition of this discrimination. It keeps us all unsafe and unwell."
The court's decision was "a call to action," said Susan Hayase, a longtime activist and a founder of San Jose Nikkei Resisters, a grassroots organization that mobilizes the Japanese American community in San Jose.
"The Supreme Court's majority has been trying to roll back decades of hard-fought, hard-won progress for justice and equality. But they won't stop us – what we have been doing – in fighting for a multiracial democracy in this country," she said.
Weighing in on the Supreme Court ruling on affirmative action, a panel of Stanford Law School professors said on June 30 that the ruling in favor of the Students for Fair Admissions is a case that comes along once in a generation.
It will have profound impacts on the way admissions will be conducted in higher education.
The Stanford Law panelist, who said their opinions were their own and not associated with the Law School and Stanford University, said the court's ruling could open the door to additional litigation as universities and colleges seek ways to admit a diverse population of students while still not violating the court's decision.
Yet, rather than a death knell, some panelists held out hope that the ruling would create a rethinking of how diversity could be achieved. The ruling could force universities to reconsider their policies on "legacy" admissions of the children of alumni and athletic recruitment, which are inherently racist, and instead make more spaces available to students of color who are better academically qualified and who come from economically and socially disadvantaged backgrounds, they said.
A primer on the case law
Ralph Richard Banks, faculty director of the Stanford Center for Racial Justice, moderated the panel discussion. He outlined the case law that led to the court's recent decision.
The court first issued a ruling on the merits of affirmative action in 1978 in the Bakke decision. Allan Bakke was a white engineer who applied for admission to medical school at the University of California Davis and was rejected twice – in 1973 and 1974. He filed a lawsuit against the university's admissions policy, which had a quota for students of disadvantaged racial groups.
When the case reached the U.S. Supreme Court, the justices were divided. Four justices would have struck down the university's policy and ruled for Bakke based on Title 6, a federal statutory provision or the Civil Rights Act of 1964. A different group of four justices would have upheld the affirmative action policy under the Constitution because it was an effort to undermine the racial hierarchy in society, Banks said.
Justice Lewis Powell Jr., the court's ninth member and tiebreaker, voted with the conservative justices to strike down the UC Davis admissions policy. But the court said race-based affirmative action could be applied more generally if its structure employed a holistic consideration of individual applicants who might demonstrate their experiences of coming from race-based disadvantaged backgrounds or discrimination.
Twenty-five years after Bakke, the court took up two challenges to affirmative action at the University of Michigan's law school and undergraduate school in the landmark Grutter versus Bollinger case. Justice Sandra Day O'Connor was the swing vote in the Michigan cases, which upheld the law school's policy but struck down the undergraduate school's admissions in 2003.
O'Connor questioned the legitimacy of an open-ended affirmative action policy. There must be an end point to the consideration of race, she said.
"It has been 25 years since Justice Powell first approved affirmative action. We expect that 25 years from now the use of racial preferences will no longer be necessary," O'Connor wrote.
The justices' reasonings
Whether that was a rhetorical flourish or a doctrinal line in the sand remains open to debate, but Chief Justice John Roberts, in the recent Students for Fair Admissions case, saw it as a doctrinal line in the sand; the universities hadn't been able to articulate an end point, Easha Anand, assistant professor and co-director of the law school's Supreme Court Litigation Clinic, said.
Earlier landmark cases found there can be no "separate but equal" because treating the races differently inherently means inequality, she said.
"The core of (the landmark) Brown versus the Board of Education, the seminal Supreme Court case, says eliminating racial discrimination means eliminating all of it," she said.
In his Students for Fair Admissions case opinion, Justice Neil Gorsuch said the dictionary meaning of words as the public knows them rather than what Congress intended is how statutes should be interpreted, and it's clear that Title VI of the Civil Rights Act of 1964 prohibits any use of race, said Richard Thompson Ford, professor of law.
"Affirmative action is the consideration of race" in Gorsuch's view, Ford noted.
Similarly, Gorsuch's opinion in a sexual discrimination case, Bostock versus Clayton County, found that same language in Title VII, which says that discrimination based on sex is unlawful.
"There's no way of considering the sexual orientation or the gender identity of an individual without also considering their sex," Ford said that Gorsuch wrote.
Considering race in admissions, under Title VI, which has nearly identical language, would therefore also be unlawful.
But Ford said that opinion didn't take into account systemic bias, which is hard to identify.
Anand said that Justice Roberts also cited case law that states cannot use race as a "stereotype" or a "negative." College admissions is a zero-sum; college admissions is a plus for some and a minus for another, and race is being used as a negative here, she said the court found.
But Roberts did leave an opening – of sorts.
"So he says, nothing in this opinion would be construed as prohibiting universities from considering an applicant's discussion of race or how it affected his or her life, through discrimination, inspiration or otherwise," she said. "But he also makes clear that the (college admissions) essay can sort of play what he calls a 'stealth' role in undermining the opinion. That is, it can't just be about telegraphing race in another way."
Anand said that opinion creates a conundrum for admissions offices.
"What does that mean? What does that allow universities to do? And how much does it require universities to change the framework they've been adhering to since the days of Grutter and Bakke?
"What makes me nervous is the next frontier on this slate of challenges, which seem to suggest that any consideration of increasing diversity, even if you find a race-neutral way to do it, will be the subject of litigation," she said.
Anand said that the ruling will end up making a class that is far whiter by eliminating a critical tool from the admissions offices' arsenals. The line between giving special consideration to an application because of the race of the applicant and giving special consideration to an applicant because the applicant faced hardship is inextricably intertwined with race, and it will lead to more litigation as plaintiffs argue it violates the court's decision.
But Michael McConnell, director of the Constitutional Law Center, said he didn't think that the plaintiffs in those cases would to succeed.
"There's no hint in the majority opinion that the motive of diversity is an illegal motive," he said.
Universities "should look to see whether the school that the applicant is coming from is one of these catastrophically underperforming public schools, and any student who excels and is coming from those schools, I think, should get a very significant boost," he said.
Forcing universities' self-examination
Universities must also look at their own racist policies that have led to limited admission slots for students of color.
Banks said that legacy admissions practices or the athletic recruitment practices were clearly developed out of racial animus as an effort to keep Jews out of elite universities about a century ago.
In her dissenting opinion, Justice Sonia Sotomayor seemed to say that what the majority is doing is eliminating affirmative action for Black and brown people but leaving it in place for white people, Banks said. But there might also be challenges to those long-standing policies.
Anand agreed. It is a theme that Justice Thomas brought up, and it has played out in his prior opinions.
"I just think for some of the justices in the majority there's this idea like, 'Look, this is a problem of your own making. You universities claim to want to admit a diverse class, but then you have to admit all the students who are white and wealthy because you care about athletes and legacies. And then you're reduced to doing this kind of racial balancing on the back end, to make up for the fact that you've just given away half the class slots to students who wouldn't be deserving but (who) further whiteness. And well, we're not going to let you use this racial balancing on the back end to make up for your racism on the front end,'" she said.
"So I think that this kind of backdrop of legacies and athletes is doing a lot of work for both the majority and the dissent. But they draw starkly different conclusions from the fact that university admissions policies do prioritize," she said.
The full panel discussion can be found at YouTube.com.