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Affirmative Action

Jul 12
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Unveiling the Fallout: Examining the Supreme Court’s Decision to Overturn Affirmative Action

By Affirmative Action, Diversity, Education

Jim Morris Consulting’s  Reaction to the Supreme Court’s

Overturning of Affirmative Action

 

(Students for Fair Admissions, Inc. v. President and Fellows of Harvard College)

Jim Morris Consulting stands in emphatic opposition to the historic decision of the U.S. Supreme Court to reverse Affirmative Action as per their ruling on June 29, 2023. This decades-long precedent allowed colleges and universities — public and private — to consider race as one factor in deciding which of the qualified applicants are to be admitted in order to create more diverse student bodies.

We urge everyone to research and understand the spate of recent decisions made by the Court that call into serious question its legitimacy as the U.S.’ third branch of government whose role is to decide on the constitutionality of federal laws when real disputes arise.

By overturning Affirmative Action and ruling in favor of policies that make discrimination of LGBTQ+ Americans legal, this court is now ruling on cases that are hypothetical vs. “controversial” and should have never been accepted by the Court had it followed its Constitutional mandate.  This is not a political issue, it’s a procedural one that threatens to further divide us. Let’s complain intelligently to expose the court’s disintegration as a legitimate judicial body and note its emergence as a partisan, financially corrupt policymaker influenced by special interests and unwilling to hold its members or itself to account for corrupt behavior.

The Affirmative Action ruling suggested so-called “race-conscious” admission programs at colleges and universities across the country disadvantage white and Asian students. Claiming “a benefit provided to some applicants but not to others necessarily advantages the former group at the expense of the latter.” We believe this logic, cloaked in the Equal Protection clause of the 14th Amendment, fails to take into account the legacy of discrimination that has afflicted people of color and indigenous people in North America since before the very founding of the Nation. 

Our history shows that the U.S. has never been a “color blind” society. This decision sends a message that all students are equally disadvantaged through consideration of race in college admissions and fails to take into account the intergenerational impact of inequality that is the daily burden of marginalized racial groups in our society.   

Equally disturbing is Chief Justice Roberts suggestion that racial minorities are not entitled to admissions concessions based on their race, but they may include in their college applications stories of how their disadvantage has negatively affected their academic standing: “…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 approach replicates a long-standing and inequitable pattern that puts the onus of responsibility on students from underrepresented groups to advocate for equity.  As a counterpoint, when or where have students of the majority group ever had to advocate for their rights or entitlement to receive the advantage of their whiteness?  One of the precepts of our work with students and clients on diversity, equity, and inclusion (DEI) is to expose them to the myriad disproportionate ways members of underrepresented groups have to justify, explain and defend their existence, much less access to equal protection. This opinion is regressive to that dynamic and solidifies the status quo in ways that further disadvantage racial and ethnic minorities in the U.S. 

Within these racial groups, gaps of almost incalculable size exist in the United States with respect to health, access to education, and access to credit and capital. To date and in spite of its shortcomings Affirmative Action has been the only approach that has concretely shifted access to education for black and brown students.

 

Justice Sotomayor has in the past publicly praised the impact Affirmative Action has had on her education and career. In her dissent, she wrote “entrenched racial inequality remains a reality today. Ignoring race will not equalize a society that is racially unequal.”   

 

We are a society composed of individuals and groups. As such, we must learn to acknowledge both individual achievement and the systemic barriers born from racial bias and discrimination that continue to plague groups of people who continue to be unfairly and equitably treated under the law, now and in the past. 

 

We remain committed  to helping leaders work through these complex social paradoxes to arrive at equitable practices, solutions and policies that work for everyone, not just the few. We still believe it is possible to realize the aspiration of E Pluribus Unum: Out of many, one.

Nov 04
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DEI and the 4 Questions Skeptics Ask

By Affirmative Action, DE&I, Diversity, Education, Racism
Students in the Affirmative Action Coalition march from Harvard through Cambridge, chant in support of diversity and affirmative action on college campuses. (Robin Lubbock/WBUR)
Students in the Affirmative Action Coalition march from Harvard through Cambridge, chant in support of diversity and affirmative action on college campuses. (Robin Lubbock/WBUR)

 

Did you know that 25 years ago, Justice Sandra Day O’Connor predicted that the issue of racial discrimination would be something our society would not have to confront today? 

 

In 2003, Justice O’Connor summarized her opinions in a Court case on affirmative action at the time: “We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest [of increasing diversity in colleges and universities] approved today.” Can we agree that optimistic prediction has not come true? From attempts to intimidate and threaten Black and Brown voters in the recent U.S. election to confronting anti- Semitic sentiments and hate speech from public figures, we are still dealing with racism daily in U.S. society. 

The cases before the Court now were brought by the organization, Students for Fair Admissions (SFFA), who are seeking the elimination of all “race-conscious” admissions practices in universities and colleges. The Supreme Court has rejected the organization’s arguments twice already, and ruled that universities can consider race in admissions to promote diversity on campus and enrich students’ learning experience.

What’s going on? Why can’t we do as Justice O’Connor predicted and overcome and evolve past the stain of racism, racial bias, and discrimination?   

I don’t have an answer to that question, but here is an observation about the patterns of misunderstanding that seem stall true progress. 

In our work with clients around the world, some of my colleagues and I have noticed there are four questions that are repeatedly asked in arguments like this that take us down the problem- solving rabbit hole. 

It seems to me that these questions are motivated by a desire to intentionally stall progress. In other instances, the questions stem from a constructive intention, but the people asking these questions lack the ability to actually hear the words or see the lived experience of our colleagues, friends, and neighbors who have to deal with racial discrimination on a daily basis. 

The four questions are:

  1. The “What about…?” equivocation question: People ask this question based on the assumption that all forms of discrimination are solved with the same solution. Ask anyone who deals with the intersectional issues of, say, accessibility along with racism, and they’ll tell you the remedy for one is very different than the remedy for the other. The issue before the Supreme Court has to do with banning preference based on race. Though the cases being argued today are about diversity and recruitment/acceptance policies in universities, the point being argued has its origins in the 14th Amendment.  The language of the amendment was intended to address the racial backlash in the South following the end of the Civil War to provide formerly enslaved citizens with the same protections as all U.S. citizens, making their lynching, murder and assault unlawful (ACLU).
  2. The “Where’s the data” question: My colleagues who are men and women of color say this is the most frustrating question of all. For them, the “data” happens every day in the regular course of living their lives. It includes the ways they are looked at or treated in public spaces or asked to speak for their whole group, as in, “You’re Black; what do your people think about this?” They live and have to confront the data in ways that people like me have never experienced. Justice Sotomayor courageously offered up her own educational experience as data that affirmative action worked. Her grades, she said, would not have normally allowed her to get into Yale Law School, even though she excelled as a student once she was admitted. Her life story – like millions of other U.S. citizens – is the data.
  3. The definition question: It’s hard for me to believe that this question, when asked,  is genuine. It sounds like a passive-aggressive way to stall looking at root causes or finding solutions. For example, Justice Thomas, in the oral arguments, asked, “What is the definition of diversity?” and then answered his own question by saying it seems to mean “giving everything to everyone.” It would have been more direct to say, “I don’t subscribe to diversity as a valid concept for the Court to consider.”  Taking the bait and providing definitions of terms like “diversity” or “equity” or” inclusion” divert the conversation from actual problem-solving to an exercise in semantics. 
  4. The “When will we be done?” question: “When will we know anti-discrimination practices have gone far enough?” Does it strike you as odd that we are asking when we will be done working on eliminating discrimination when we have yet to be successful holding people accountable for doing it? It’s like saying “When are we going to stop funding cancer research?” knowing that there are still so many incurable or hard-to-treat forms of cancer. How about we solve more of the problem and THEN talk about when enough is enough?

A mentor once told me that, “Affirmative action is a clunky, inelegant, but necessary engineered solution to a human dynamic, and a problem that defies simple solutions. You can’t engineer mindsets.” They warned me, and that’s what was most disturbing when I listened to the Court proceedings. Some justices just sound like their minds are made up, and they are unable or unwilling to look past the literal interpretation of the 14th Amendment to consider the context of our society, then and now. 

It is astonishing to hear some of the justices ask the same basic questions our clients who have never had the opportunity to delve deeply into diversity and inclusion ask. The difference is that the Justices are supposed to be among the most learned and informed among us. It was heartbreaking to listen to some of the Justices go down the rabbit hole of these four questions. Is that they don’t understand the real issue or do they not believe it’s really worth considering? 

Ways to Deal with the Four Questions:

Do your best not to take the bait. No answer you can provide and no dialogue about them will actually move the needle toward a more equitable society. Instead, start with listening to their story—all of it. 

Say something like, “What really bothers you about working towards a society with no racial discrimination? Or “What are you afraid of if the Court upholds affirmative action—as imperfect as it is—to help rebalance the scales of justice?” Asking a question like this creates connection with the person asking the question, rather than taking a stance of debate. It also gets more to the heart of the issue, which is their resistance – not the legitimacy of DE&I work or, in this case, affirmative action.

A decision to completely overturn the Grutter v. Bollinger case, which was basically a blueprint for race-conscious college admissions, could have devastating outcomes when it comes to college admissions. According to a brief filed by Harvard, more than 40 percent of universities in the U.S. consider race during the admissions process. Let’s hope the Supreme Court will not vote to end the use of racial classifications in college admissions. 

Whatever the outcome, we can assume the next few years are going to be trying when it comes to the Court and their current stance on Affirmative Action.  Here’s to working together to protect it.