I Dissent: A Statement on Affirmative Action in 2023
I Dissent:
A Statement on Affirmative Action in 2023
Paloma Martinez-Cruz
Program Director, Latinx Studies
On June 29, 2023, the U.S. Supreme Court issued a 6-2 decision on Students for Fair Admissions, Inc. v. President and Fellows of Harvard College 600 U.S. 181 that found race-conscious affirmative action policies used in college admissions programs to be unlawful. Affirmative action practices, which are not limited to college admissions, rose out of civil rights era struggles to address racial and gender discrimination at a crucial point in the educational pipeline, widening doors for students from historically underserved communities to obtain a college education. While many of Ohio’s colleges do not implement affirmative action policies at the admissions level, The Ohio State University, Bowling Green State University, and the University of Cincinnati do.(1) This means that these three universities will be joining many others across the country to review admissions and recruitment policies after decades-long practices of considering race as a factor to diversify student bodies and engage the pursuit of equity, inclusion, and justice in institutions of higher learning.
This will have an impact at OSU and across Ohio. The enrolled student population is over 65,000 across all its campuses, and nearly 26% identify as students of color. The policy went into immediate effect: admissions team members have already removed race and ethnicity from materials provided to admissions reviewers.
This does not mean that OSU’s administrators are eager to accept the new law of the land. On June 29, Dean David Horn of the College of Arts and Sciences offered the following message: “Our college’s commitments have not changed. . . We all know the generative power of our differences: for producing better understandings of the world we inhabit; for solving complex scientific and technical problems; for creating compelling art, literature, and performances; for challenging unspoken assumptions in the classroom; and for enabling more just social relations.” (2)
On a personal level, I’m heartened by the Dean Horn’s stated commitment to seek and implement solutions that allow OSU to sustain diverse and inclusive communities. But I’m also devastated to be back in the position of defending my place – our place – in higher education in a hostile national climate that finds new jusNficaNon for LaNnx and BIPOC exclusion in Students for Fair Admissions v. Harvard.
In 1996, I was a student in my last year at UC Berkeley when ProposiNon 209 ended affirmative action in California’s state colleges and universities, an experience I wrote about in my book Women and Knowledge in Mesoamerica: From East L.A. to Anahuac (2011):
I left L.A. for college in the early 1990s, when the enactment of affirmative action policies led to the increased representation of Latinxs in state colleges and universities. The environment in my residence hall my first year at UC Berkeley was one in which many Anglo students felt comfortable pontificating on their view that most of the Latinos did not truly deserve to be there. We were charity cases who had not earned our place in their class, but rather stole it from those who were more deserving. By the time I concluded my studies, California voters had passed Proposition 187, which restricted access of undocumented immigrants to schools and hospitals, and then continued on to pass Proposition 209, which ended affirmative action in the state’s educational institutions. I had no hemispheric or historical view of intellectual accomplishment with which to shield myself from these debilitating messages about my unwelcome presence as a Latina in California, and about my intellectual aptitude. (3)
As the above excerpt from my writing in 2011 conveys, the sense that California voters and law makers were determined to send me and my community the message that I didn’t belong in a competitive college was part of what motivated me to become a researcher in the area of Latinx Studies: I was hungry to reconquer territory that had been systematically devalued or destroyed. I concentrated on Latin American and Latinx cultural studies, where I could learn about ways of knowing that were seldom valued in the educational institutions I had attended. Today, my professional life in Latinx Studies continues to contend with the problem of institutional exclusion, and the national fear of Latinx bodies that are characterized as intruders.
As to whether I think that race and ethnicity should be a consideration for college admissions, and what kind of impact this will have moving forward, I’ll quote Supreme Court Justice Sonia Sotomayor: “The devastating impact of this decision cannot be overstated.” (4)
The first Latina Supreme Court Justice, Sotomayor is a proponent of affirmative action policies and provided a dissenting opinion to the majority ruling in which she cites both Brown v. Board of Education of Topeka, 347 U.S. 483 (1954) and United States v. Brignoni-Ponce 422 U. S. 873 (1975) (among other cases) to demonstrate that the majority ruling is out of step with the Court’s own precedents.
First, Brown v. Board of Education was a landmark U.S. Supreme Court decision that held that U.S. laws contributing to racial segregation in public schools were unconstitutional. The three dissenters in Students for Fair Admissions v. Harvard (Justices Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson – the first Black woman to be appointed to the Supreme Court of the United States) sustain that affirmative action is a crucial tool in upholding the 1954 ruling that made school segregation illegal, interpreting the consideration of race at the point of public school admissions a constitutional responsibility in order to avoid segregated student bodies.
Next, in United States v. Brignoni-Ponce, Sotomayor’s dissent notes: “The Court held that it is unconstitutional for border patrol agents to rely on a person’s skin color as “a single factor” to justify a traffic stop based on reasonable suspicion, but it remarked that “Mexican appearance” could be “a relevant factor” out of many to justify such a stop “at the border and its functional equivalents.” (5) In other words, the Court facilitated racial profiling of Latinxs when this was defined as a law enforcement tool, with “Mexican appearance” an allowable justification for suspicion under the law.
Taking into account the 1954 and 1975 rulings, Sotomayor’s dissent states: “The result of today’s decision is that a person’s skin color may play a role in assessing individualized suspicion, but it cannot play a role in assessing that person’s individualized contributions to a diverse learning environment.” In other words, by making affirmative action illegal, it subverts both the Brown v. Board of Education decisions that makes desegregation illegal, while allowing skin color to “play a role in assessing individualized suspicion” in the eyes of the law.
SCOTUS dissenters also point out that the Court majority carves out an exception for U.S. military service academies, who may continue to take race into account in making admissions decisions. In Jackson’s dissenting opinion, she writes:
The court has come to rest on the bottom-line conclusion that racial diversity in higher education is only worth potentially preserving insofar as it might be needed to prepare Black Americans and other underrepresented minorities for success in the bunker, not the boardroom (a particularly awkward place to land, in light of the history the majority opts to ignore). (6)
While disappointed and angered by the Supreme Court’s decision to strike down affirmative action in college admissions, I continue to be proud to serve as Program Director of Latinx Studies in the Center for Ethnic Studies at OSU. Yes, we have a fight ahead of us if we want to continue to resist policies that exclude people of color, but this fight has been an enduring legacy of our struggle for inclusion and representation that is ever at odds with a dominant culture that only tolerates BIPOC folks in work that is dirty, dangerous, and underpaid. I am pleased to join Sotomayor and Jackson in voicing my unequivocal dissent.
(1) George Shillcock, “Ohio colleges grapple with US Supreme Court’s decision striking down affirma=ve ac=on,” WOSU 89.7 NPR News, June 29, 2023, accessed October 27, 2023, hGps://news.wosu.org/poli=cs- government/2023-06-29/ohio-colleges-grapple-with-us-supreme-courts-decision-striking-down-affirma=ve-ac=on.
(2) David Horn, email message to College of Arts and Sciences faculty, June 29, 2023.
(3) Paloma Mar=nez-Cruz, Women and Knowledge in Mesoamerica: From East L.A. to Anahuac (Tucson: University of Arizona Press, 2019), 8-9.
(4) Olivia B. Waxman, “Read Jus=ce Sotomayor and Jackson’s Dissents in the Affirma=ve Ac=on Case,” Time.com, June 29, 2023, accessed October 27, 2023, hGps://=me.com/6291230/affirma=ve-ac=on-dissent-jackson- sotomayor/.
(5) Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, 600 U.S. 181, (2023), (S. Sotomayor, dissen=ng), 30.
(6) Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, 600 U.S. 181 (2023), (J. Jackson, dissen=ng), 29.