December 3, 2023

As the world waits for the U.S. Supreme Court to rule on the constitutionality of affirmative action, the Mellon Foundation, a nonprofit organization that makes grants related to higher education, among other things, recently convened a panel to discuss how America got to this point and what may come next. after. The participants were not optimistic.

“To be clear, the court is overruling the affirmative action,” said Melissa Murray, the Frederick I and Grace Stokes Professor at New York University Law School. “You can bet money on that.

Stewart Kwoh, co-founder and co-executive director of the Asian American Education ProjectStewart Kwoh, co-founder and co-executive director of the Asian American Education ProjectIt’s a result, the panelists agreed, that calls into question the very nature of America. If minority groups don’t have good access to quality education, “the idea that we’re promoting around the world that we’re a vibrant, multiracial democracy is a farce,” said Stewart Kwoh, co-founder and CEO. executive director of the Asian American Education Project.

The primary motivation for anti-affirmative action sentiment, according to Murray, is a form of anxiety created by white supremacy. It is the fear that some white people have because of the economic decline in the United States that they are moving away from the success they are entitled to. And the panelists said that fear has created conditions in which some Asian Americans have allowed themselves to be exploited to divide the minority population along ethnic lines. They generally agreed that the plaintiffs who are suing Harvard and the University of North Carolina, alleging that their affirmative action policies discriminate against Asian Americans, do not represent the views of the group as a whole.

“Opponents of affirmative action have found a small group of Asian Americans to do the wedge work,” Kwoh said, citing a survey that found 69% of registered voters in Asia support affirmative action.

Kwoh said a better job needs to be done at community organizing to avoid a sense of competition between racial groups and discussed the long history of alliances between African and Asian Americans, noting that Frederick Douglass was one of the first to speak out. rights of Chinese immigrants.

Sherrilyn Ifill, senior fellow at the Ford Foundation and former president and director-counsel of the NAACP Legal Defense FundSherrilyn Ifill, senior fellow at the Ford Foundation and former president and director-counsel of the NAACP Legal Defense FundSherrilyn Ifill, a senior fellow at the Ford Foundation and former president and director-counsel of the NAACP Legal Defense Fund, pointed out that the sense of competition was also a product of white supremacy — that minority people are often left to fight for the few remaining seats. in college classes after athletes and legacies were admitted.

The panelists also discussed what might come after an anti-affirmative action decision. Murray believes such a decision will only be the beginning of battles over how race can play into the school’s operations, in areas such as managing scholarship money and hosting affinity groups.

“We have to be prepared for another 20 years of litigation on these other topics,” she said.

Ifill thought legal action might not even be necessary.

“I don’t think it’s going to take litigation to make the rest of the dominoes fall,” she said. “I think they’re going to start falling over from fear.

Ifill argued that the impacts are unlikely to be limited to higher education, noting that fewer corporations have signed amicus briefs in support of affirmative action than in previous Supreme Court cases on the topic.

The discussion then shifted toward possible ways forward, with Murray drawing on her experience as interim dean of the University of California, Berkeley School of Law. Race-conscious admissions has been banned in California since 1997. Murray said she doesn’t feel the absence of affirmative action will remove any stigma from minority students, as some advocates of ending the practice have said it might. She said minority students are still looked at as if they don’t belong.

Murray also found that the ban on thinking about race made it harder to help minority students.

“We’ve done amazing things at Berkeley, but we’ve done it in a position of total incompetence,” she said. “It would be a lot easier and we could do a lot more if we could think about race consciously and with clear eyes.”

Murray said one possible alternative would be for states to implement programs like Texas’ “Top 10% Act,” which guarantees automatic admission to public schools for students who graduate in the top 10% of their high school grades. Another idea, Murray said, would be for schools to include essays about diversity as students define and experience it as part of applications. But both could be banned under a Supreme Court ruling for being too close to racial profiling.

Ultimately, it remains uncertain what exactly a post-affirmative action world would look like, but panelists believed the impact would be significant.

“I think we’re in uncharted territory,” Ifill said. “This decision will not stand alone.

The Supreme Court is expected to rule on race-conscious confessions by the end of June.

Jon Edelman can be reached at

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