Concerns grow over the future of affirmative action after controversial Supreme Court rulings

“We're expecting the Supreme Court to take up the constitutionality of affirmative action in higher education and potentially beyond,” Damon Hewitt, president of the Lawyers’ Committee for Civil Rights Under the Law, told theGrio.

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The Supreme Court’s controversial decision to overturn the constitutional right to an abortion, among other recent rulings, has caused great concern that the high court will continue to strike down longstanding legal precedents. Next up on the high court’s docket is affirmative action in higher education. 

A pro-choice activist holds up a sign during a rally in front of the U.S. Supreme Court in response to the leaked Supreme Court draft decision to overturn Roe v. Wade May 3, 2022 in Washington, DC. (Photo by Alex Wong/Getty Images)

Damon Hewitt, president and executive director at the Lawyers’ Committee for Civil Rights Under the Law, noted that during its next session the Supreme Court will take up cases concerning the use of affirmative action in college admissions – a policy that has long benefited African Americans in higher education. The court is expected to hear a pair of cases on the matter this fall coming out of Harvard University and the University of North Carolina.

“We’re expecting the Supreme Court to take up the constitutionality of affirmative action in higher education and potentially beyond,” Hewitt told theGrio. 

Hewitt’s Lawyers’ Committee and other organizations represented Black and Latinx students in defense of Harvard’s diversity admissions program. The legal team won the case and successfully defended its appeal in the First Circuit Court of Appeals before it ended up on the Supreme Court’s docket. He called the high court’s maneuvering on affirmative action in college admissions “aggressive.” 

Hewitt also skeptically noted that the conservative justices on the court “scooped up the UNC case to hear it alongside the Harvard case before the Court of Appeals would ever have a chance to hear. He added, “it’s not unprecedented, but it is highly unusual.” 

Hewitt lamented that there will likely be a similar outcome in the affirmative action cases as the one in the recent Dobbs decision, which is to “not address the question of whether the particular law [or] provisional policy comports with the existing precedent” and “use this as a way to overrule the precedent altogether.”

A student walks through Harvard Yard on the campus of Harvard University on March 12, 2020 in Cambridge, Massachusetts. (Photo by Maddie Meyer/Getty Images)

Public condemnation of the Supreme Court’s most recent rulings – including expanding gun rights and stripping regulatory authority from the Environmental Protection Agency (EPA) – have been loud and forceful. On Friday, before signing an executive order to protect access to reproductive health care services in direct response to the Dobbs case, President Biden called the court “out of control” and accused its conservative judges of “working in conjunction with extremist elements of the Republican Party to take away freedoms and our personal autonomy.”

The sounding of the alarm about the current state of the Supreme Court is especially so for members of Congress. During an interview with theGrio at last week’s Essence Festival in New Orleans, Louisiana, U.S. Rep. Val Demings (D-Fla.), the Democratic nominee for the U.S. Senate in the Sunshine State, told theGrio that the United States is witnessing “the erosion of constitutional rights.” 

The three-term congresswoman vowed to “continue to fight for a woman’s right to choose” in the aftermath of Roe v. Wade being overturned. She similarly hinted that the Supreme Court will only continue to roll back once constitutionally-sound rights. 

Democratic Senate candidate Rep. Val Demings (D-FL) gives a campaign speech in front of her supporters on June 28, 2022 in St Petersburg, Florida. (Photo by Octavio Jones/Getty Images)

“I hope people understand that it doesn’t just end with Roe. If they would come after Roe, I think everything’s on the table. So we have a lot of work to do,” said Demings.

In New Orleans, there were calls to bring the community’s focus to the issue of affirmative action, among others, that could also be placed in jeopardy by the conservative majority on the high court. Currently underway are legal efforts to file friend-of-the-court briefs under the required timing before the court’s next session begins on Oct. 1. It will also be the first session of Associate Justice Ketanji Brown Jackson, who was just sworn in last week

The lawsuits that are challenging affirmative action in higher education are orchestrated by conservative Edward Blum, who helped facilitate the financial backing behind the Shelby County v. Holder case in 2013 that led to the Supreme Court gutting the Voting Rights Act of 1965.

Demings warned, “We’re in trouble. Our nation is in trouble,” in anticipation of pending cases before the court. The former chief of the Orlando Police Department called on “every true patriot” who “really believes that every person, regardless of the color of their skin, where they live, who they are, their gender, their sexual orientation or religion, deserves to have an opportunity to succeed. 

She added, “We’re calling on you to get out and vote for people who think like you think.”

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