A Call to Counter Repressive Legalism: Addressing the Implications of SFFA v. Harvard

IF 1.6 4区 教育学 Q2 EDUCATION & EDUCATIONAL RESEARCH
Nicole C. Ngaosi, Liliana M. Garces
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After nearly half a century of legal cases endorsing the consideration of race as one of many factors in the admissions process, on June 29, 2023, the U.S. Supreme Court in <em>Students for Fair Admissions, Inc. v. President and Fellows of Harvard College</em> and <em>Students for Fair Admissions, Inc. v. the University of North Carolina-Chapel Hill</em> further restricted how race can be considered in admissions processes. Specifically, the Court concluded that outside of military academies, the constitution and federal law generally prohibit the consideration of race in admissions, except for the individualized review of how race is related to an applicant's lived experience.</p> <p>The implications of the Court's decision are significant for racially minoritized students who often have steeper, uphill climbs in their educational opportunities compared to their white peers. Yet, as saddened as many scholars and practitioners in the higher education community are to have the consideration of race in admissions further restricted, this Court ruling was a possible outcome given the sustained opposition to the practice and the U.S. Supreme Court's new conservative majority.</p> <p>In this commentary, we provide a brief overview of the legal evolution of affirmative action in admissions over the past four decades leading up to the Court's most recent <em>SFFA</em> cases. We outline some of the developments in the aftermath of this most recent decision that seek to further restrict and unnecessarily suppress the consideration of race in educational practice—a dynamic termed <em>repressive legalism</em>. We argue that the <em>SFFA</em> decision can result in further retrenchment, given the sustained attacks and ongoing pressures targeting racial equity. This sociopolitical environment requires higher education administrators and student affairs practitioners to proactively counter repressive legalism by leveraging legal strategies to reassert racial equity in institutional policies and practices.</p> <h2>LEGAL EVOLUTION OF RACE-CONSCIOUS ADMISSIONS</h2> <p>What is now broadly termed race-conscious admissions originated from a broader civil rights agenda—known as affirmative action—and various executive orders in the 1960s requiring nondiscrimination in employment and contracts. These executive orders sought to <strong>[End Page 331]</strong> codify equal opportunity as a means to address the effects of racial discrimination. 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University of Texas I</em> (2013), and <em>Fisher v. University of Texas II</em> (2016)—laid out the blueprint for colleges and universities to consider race as one of many factors in admissions decisions.</p> <p>Undeterred by the Court's 2016 ruling in <em>Fisher II</em> upholding the constitutionality of race-conscious admissions, Ed Blum—the litigant who recruited Abigail Fisher in <em>Fisher I</em> and <em>Fisher II</em> and subsequently founded Students for Fair Admissions (SFFA)—continued his anti-civil rights campaign with a new set of lawsuits against Harvard and the University of North Carolina-Chapel Hill. When these new cases reached the Court in 2022, three Trump-appointed justices (Gorsuch in 2017, Kavanaugh in 2018, Coney-Barrett in 2020) had joined the Court. 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引用次数: 0

Abstract

In lieu of an abstract, here is a brief excerpt of the content:

  • A Call to Counter Repressive Legalism:Addressing the Implications of SFFA v. Harvard
  • Nicole C. Ngaosi (bio) and Liliana M. Garces (bio)

Opponents of race-based affirmative action in higher education have challenged the policy and practice since its inception. The sustained opposition resulted in a series of legal cases that have substantially chipped away at the practice, resulting in what is now termed "race-conscious" admissions (Garces, 2019). After nearly half a century of legal cases endorsing the consideration of race as one of many factors in the admissions process, on June 29, 2023, the U.S. Supreme Court in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College and Students for Fair Admissions, Inc. v. the University of North Carolina-Chapel Hill further restricted how race can be considered in admissions processes. Specifically, the Court concluded that outside of military academies, the constitution and federal law generally prohibit the consideration of race in admissions, except for the individualized review of how race is related to an applicant's lived experience.

The implications of the Court's decision are significant for racially minoritized students who often have steeper, uphill climbs in their educational opportunities compared to their white peers. Yet, as saddened as many scholars and practitioners in the higher education community are to have the consideration of race in admissions further restricted, this Court ruling was a possible outcome given the sustained opposition to the practice and the U.S. Supreme Court's new conservative majority.

In this commentary, we provide a brief overview of the legal evolution of affirmative action in admissions over the past four decades leading up to the Court's most recent SFFA cases. We outline some of the developments in the aftermath of this most recent decision that seek to further restrict and unnecessarily suppress the consideration of race in educational practice—a dynamic termed repressive legalism. We argue that the SFFA decision can result in further retrenchment, given the sustained attacks and ongoing pressures targeting racial equity. This sociopolitical environment requires higher education administrators and student affairs practitioners to proactively counter repressive legalism by leveraging legal strategies to reassert racial equity in institutional policies and practices.

LEGAL EVOLUTION OF RACE-CONSCIOUS ADMISSIONS

What is now broadly termed race-conscious admissions originated from a broader civil rights agenda—known as affirmative action—and various executive orders in the 1960s requiring nondiscrimination in employment and contracts. These executive orders sought to [End Page 331] codify equal opportunity as a means to address the effects of racial discrimination. While these executive orders did not address college enrollment demographics, many higher education institutions modeled this civil rights agenda by instituting admissions processes that guaranteed a certain number of spots to students from disadvantaged populations (Stulberg & Chen, 2013).

Yet, since its inception amid the civil rights movement in the 1960s, affirmative action has been the target of reoccurring legal challenges that have diluted its original intent (Fernandez & Garces, 2023). Starting in 1978, the Court's decision in Regents of the University of California v. Bakke (1978) prohibited the consideration of race in admissions via racial quotas as a way to remedy racial discrimination, permitting instead the consideration of race as one of many factors in a holistic process to achieve the educational benefits of a diverse student body. Four legal cases since—Grutter v. Bollinger (2003), Gratz v. Bollinger (2003), Fisher v. University of Texas I (2013), and Fisher v. University of Texas II (2016)—laid out the blueprint for colleges and universities to consider race as one of many factors in admissions decisions.

Undeterred by the Court's 2016 ruling in Fisher II upholding the constitutionality of race-conscious admissions, Ed Blum—the litigant who recruited Abigail Fisher in Fisher I and Fisher II and subsequently founded Students for Fair Admissions (SFFA)—continued his anti-civil rights campaign with a new set of lawsuits against Harvard and the University of North Carolina-Chapel Hill. When these new cases reached the Court in 2022, three Trump-appointed justices (Gorsuch in 2017, Kavanaugh in 2018, Coney-Barrett in 2020) had joined the Court. Their votes joined those of Roberts, Alito, and Thomas (all of whom...

呼吁反对压制性法律主义:应对 SFFA 诉哈佛案的影响
以下是内容的简要摘录,以代替摘要: A Call to Counter Repressive Legalism:Addressing the Implications of SFFA v. Harvard Nicole C. Ngaosi (bio) and Liliana M. Garces (bio) 高等教育中以种族为基础的平权法案的反对者自该法案诞生以来就一直对其政策和实践提出质疑。持续的反对导致了一系列法律案件的发生,大大削弱了这一做法,形成了现在所谓的 "种族意识 "招生(Garces, 2019)。在近半个世纪的法律案件中,种族因素被视为招生过程中的诸多因素之一。2023 年 6 月 29 日,美国最高法院在 "学生促进公平招生公司诉哈佛大学校长和研究员案 "和 "学生促进公平招生公司诉北卡罗来纳大学教堂山分校案 "中进一步限制了在招生过程中考虑种族因素的方式。具体而言,法院得出结论,除军事院校外,宪法和联邦法律一般禁止在招生中考虑种族因素,但对种族与申请人生活经历的关系进行个性化审查除外。与白人同龄人相比,少数种族学生的受教育机会往往更陡峭、更艰难。然而,尽管高等教育界的许多学者和从业者对招生中的种族考虑受到进一步限制感到难过,但鉴于对这一做法的持续反对以及美国最高法院新的保守派多数,法院的这一裁决是一个可能的结果。在这篇评论中,我们简要概述了过去四十年来招生中的平权法案的法律演变,直至法院最近的 SFFA 案件。我们概述了最近的判决之后的一些发展,这些发展试图进一步限制和不必要地压制在教育实践中对种族问题的考虑--这种动态被称为压制性法律主义。我们认为,鉴于针对种族公平的持续攻击和不断施压,南部非洲教育论坛的裁决可能会导致进一步的紧缩。在这种社会政治环境下,高等教育管理者和学生事务从业者需要积极主动地反击压制性法律主义,利用法律策略在机构政策和实践中重申种族平等。种族意识招生的法律演变 现在广义上的种族意识招生源于更广泛的民权议程--即平权行动--以及 20 世纪 60 年代要求在就业和合同中不歧视的各种行政命令。这些行政命令旨在将平等机会编纂成法律,作为消除种族歧视影响的一种手段。虽然这些行政命令并未涉及大学招生的人口统计问题,但许多高等教育机构都效仿了这一民权议程,制定了招生程序,保证为来自弱势群体的学生提供一定数量的名额(Stulberg & Chen, 2013)。然而,自 20 世纪 60 年代在民权运动中诞生以来,平权法案就不断受到法律挑战,削弱了其初衷(Fernandez & Garces, 2023)。从 1978 年开始,法院在 "加州大学执政官诉巴克案"(Regents of the University of California v. Bakke,1978 年)中做出判决,禁止在招生中通过种族配额来考虑种族因素,以此来纠正种族歧视,而是允许将种族因素作为一个整体过程中的众多因素之一来考虑,以实现多元化学生群体带来的教育益处。此后的四起法律案件--格拉特诉博林格案(2003 年)、格拉茨诉博林格案(2003 年)、费舍尔诉德克萨斯大学案一(2013 年)和费舍尔诉德克萨斯大学案二(2016 年)--为高校在招生决策中将种族作为诸多因素之一进行考虑绘制了蓝图。2016 年,法院在费舍尔二号案中裁定维持种族意识招生的合宪性,埃德-布卢姆(Ed Blum)--在费舍尔一号案和费舍尔二号案中招募了阿比盖尔-费舍尔并随后成立了学生公平入学协会(SFFA)的诉讼人--并没有因此而气馁,而是继续他的反民权运动,对哈佛大学和北卡罗来纳大学教堂山分校提起了一系列新的诉讼。当这些新案件于 2022 年送达法院时,特朗普任命的三位大法官(2017 年任命戈萨奇,2018 年任命卡瓦诺,2020 年任命科尼-巴雷特)已加入法院。他们的投票与罗伯茨、阿利托和托马斯(他们都...
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来源期刊
CiteScore
2.90
自引率
14.30%
发文量
24
期刊介绍: Published six times per year for the American College Personnel Association.Founded in 1959, the Journal of College Student Development has been the leading source of research about college students and the field of student affairs for over four decades. JCSD is the largest empirical research journal in the field of student affairs and higher education, and is the official journal of the American College Personnel Association.
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