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The Path Forward: Alternative Affirmative Action




Racial discrimination was an issue in 1636, upon Harvard College's founding, and it is still the issue today, with the representation of over 4,000 American higher education institutions. Understanding the jurisprudential theory and the interpretation of constitutional law, I see two varying approaches in the SCOTUS decision and dissent in striking down affirmative action in college admission. This interpretation method differs from well-known contextual frameworks of college enrollment and retention in higher education. To understand how this decision landed, we must first understand what is essentially being interpreted and the context in which it is tangential to the Constitution.


The decision and dissent depart on interpreting the Equal Protection Clause within the 14th Amendment, what it says verbatim, and what it means historically. Thus, we find dissonance between the stated intention and the holistic purpose of the 14thAmendment. Throughout the brief, both the decision and dissent's intentions are after the shared goal of equal opportunity for students to pursue life, liberty, and property, which in simple terms, begins with education.


The decision takes particular interest in upholding the clause text verbatim, which denotes "equality of treatment before the law for all persons without regard to race or color.” In the context of the clause's inception, Black-Americans were being discriminated against because of their racial identity. So according to this clause, race being considered in any capacity in admission decisions violates this constitutional law and is deemed discriminatory. In the context of this clause today, SFFA argues discrimination of Asian-American and White-American sub-populations. Thus, it is still considered discrimination according to the constitution. This opinion also inherently believes that the equal protection clause and race consciousness are mutually exclusive. I would argue they are not.

In the context of the clause's inception, Black-Americans were being discriminated against because of their racial identity. So according to this clause, race being considered in any capacity in admission decisions violates this constitutional law and is deemed discriminatory.

The dissent takes particular interest in the equal protection clause’s purpose of restoring historical vestiges and correcting previous exclusion of Black-Americans in any efforts of workforce, literacy, education, and functionality as a citizen beyond emancipation of slavery and de jure segregation. The dissent is adamant that the clause seeks to provide racial equality in opportunity, and in providing racial equality in opportunity, we must acknowledge that there is racial inequality in opportunity. Thus, using race is deemed plausible to correct former societal racial discrimination and is historically supported through legal means such as the Freedmen’s Bureau Act in 1865.


In either perspective, removing discrimination is the looming factor that institutions must consider. As the brief notes, Harvard and UNC have layers of admission committees and practices to reach final decisions. Thus, the question of the use of race comes into play as the class is finalized and, more importantly, diversly stabilized. The solution is to continue the shared mission to improve equality in opportunity while adhering to the stated constitutional precepts. Interpretation is subjective; therefore, we must continue to refine higher education practices with alternative action approaches that do not erode progression in diversity affairs, while also not subjecting sub-populations of students to discriminatory practices: a tall but achievable order.


The dissent is adamant that the clause seeks to provide racial equality in opportunity, and in providing racial equality in opportunity, we must acknowledge that there is racial inequality in opportunity. Thus, using race is deemed plausible to correct former societal racial discrimination and is historically supported through legal means such as the Freedmen’s Bureau Act in 1865.

In the last decade, many institutions have begun looking at Alternative Affirmative Action approaches to achieve diverse cohorts of students. These are considered shared paths forward and research of these practices are fairly new in the last decade. They are progressive and breed common ground among the decision and dissent dichotomy. It is reasonably tempting to be caught in the wave of frustration or celebration around this decision, but this will be short-lived. When the dust settles, we need higher education stakeholders to continue the work. We hear many mainstream media opinions, political commentators, prominent voices on a national level, and institutional statements being made today. I urge anyone who considers themselves an advocate of higher education to look toward shared paths that achieve the original intent of higher education for all student applicants. I'd like to go a step further and say, enrollment in higher education must be coupled with retention success. If anything, we owe it to students to ensure our practices are morally, ethically, and legally sound. As we have seen pledges and commitments to continuity of embracing all walks of life, higher education is still one of the primary vehicles of social mobility. It must operate to the most equitable extent it can offer.


Rebuttals are always welcome,


Jade M. Felder @felderofficial


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