The
end of abortion rights in the United States seems to be a foregone
conclusion. After rejecting
efforts to temporarily halt the Texas abortion law on two separate
occasions, the Supreme Court may validate
the law this term. Undermining Roe
v. Wade,
or overruling
it as the court’s decision on Mississippi’s 15-week
abortion ban portends, begs the question of what other precedents the
Supreme Court will be willing to weaken or abandon.
Affirmative
action in higher education immediately comes to mind.
With
the replacement
of Justice Anthony Kennedy—who famously helped reaffirm
the constitutionality of affirmative action in Fisher
v. University of Texas—upon
his retirement with Justice Brett Kavanaugh and the subsequent
filling of the late Justice Ruth Bader Ginsburg's seat by Justice Amy
Coney Barrett, the days of affirmative action seem as numbered as
those of legalized abortions. Conservatives, skeptical
of the justification for affirmative action, enjoy a majority
on the Supreme Court. A viable challenge to affirmative action that
was only recently shot
down
in federal court may receive a more favorable ruling if it is heard
by a more sympathetic conservative Supreme Court.
As
with abortion rights, it is possible for Congress to enact
legislation that protects affirmative action policies. However, the
current national conversation on critical race theory suggests that
these efforts would face an uphill battle.
The
New Culture War
Conservative
politicians, pundits, activists, and parents united during the summer
of 2021 to face a common enemy. No, that enemy was not the likely
candidate of the coronavirus pandemic, which so far has killed more
than 700,000 Americans
and counting. Nor was it the insurrectionists and anti-democracy
extremists who falsely
claim
that the 2020 election was stolen from former President Donald Trump.
No, these allies banded together to engage in a meaningless culture
war against critical race theory.
The
tragic murder of George Floyd in 2020 was a cultural inflection
point
that has inspired national introspection on the ways in which racism
has permeated every facet of American life. Every day citizens have
incorporated
terms like “white privilege,” “implicit bias,”
and “microaggression” into their vocabularies.
Corporations
are beginning to promote internal diversity and contribute to the
economic development of historically marginalized communities.
Educational
institutions
at all levels are encouraging conversations and offering courses on
institutionalized racism, which is at the core of critical race
theory. But for every positive action, there is an equally opposite
negative reaction.
Local
school board meetings have become battlegrounds.
Parents and conservative activists have accused schools of using
critical race theory to “indoctrinate”
their children and spread “Marxism.”
These accusations may be the least of school districts’
concerns: School board members have received
threats to their safety, while many school boards have become
engulfed
in litigation, complaints, and record requests relating to critical
race theory. Conservatives at all levels have egged on these efforts
from the Fox News Network, which obsessed
over critical race theory to the tune of mentioning it 1,900 times in
under four months, to Trump acolyte and Florida Governor Ron
DeSantis, who blasted
critical race theory as “[t]eaching kids to hate their country
and to hate each other.”
Harmful
rhetoric is now giving way to tangible consequences. States like
South
Carolina
and Idaho
have passed legislation to prevent schools from teaching the
principles of critical race theory. Oklahoma
passed legislation clearly intended to shape the contours of how
discussions of race can occur in the classroom. The debate over the
place of the tenets of critical race theory in the classroom
threatens to tip the scales in the Virginia
governor’s race.
Federal conservative lawmakers have joined the chorus of criticisms,
including Senator Tom Cotton (R-AR) and Representative Dan Bishop
(R-NC), both of whom introduced
the Stop CRT Act.
An
Uncertain Future
The
central irony of this nonsensical hysteria is that critical race
theory is a legal
framework
taught in law and graduate schools, not primary and secondary
schools. Discussions of history, racism, and diversity are not
synonymous with critical race theory, so no children were ever in
so-called danger of being exposed to this pedagogy. But Republicans
are well aware of the provocative
nature
of the term “critical race theory.” The potential to
wield that term like a battle-ax to frighten
suburban white voters and ultimately frustrate progress on racial
justice issues was too tempting for conservatives to ignore. That
this fearmongering political strategy is working, based on the
explosion of interest
in school board affairs, could be the death knell for affirmative
action.
Before
critical race theory, affirmative action was the buzzword deployed by
conservatives to stoke racial
division.
Affirmative action has always been a controversial
policy. But if this level of panic is the reaction to the mere
discussion of racial inequality in schools, one can only imagine how
apoplectic the reaction will be to Congress seeking to preserve or
even expand affirmative action. One thing is for certain: Outrage at
the presence of racial discussions in the classrooms means that there
is already a coalition of opponents mobilized to challenge codifying
affirmative action.
Standing
at the cusp of losing abortion rights has galvanized progressives,
but it is hard to envision affirmative action inspiring that same
level of activism, even among those who might be somewhat
sympathetic. Indeed, protests
against the Texas abortion law began almost immediately after it went
into effect in September. Nationwide
marches
hosted by the Women’s March to vocalize support for abortion
rights totaled at least 600. Whole
Woman’s Health,
which is part of a network of abortion clinics, sued
for an injunction against the Texas abortion law. Spearheaded by
women in Congress, the Women’s Health Protection Act of 2021,
which would maintain a woman’s right to abort her pregnancy,
passed
in the House of Representatives.
Attaining
higher education is still a relative
privilege,
by contrast, so affirmative action is not as energizing a principle
as abortion rights—which directly impact half the
population—theoretically are. An argument, though one with
which I disagree, could also be made that the stakes of affirmative
action are not as high as other racial justice issues, including
voting rights and police brutality. While legislation to address
these focuses stalls, progressives in Congress may be reluctant to
add protecting affirmative action to their list of priorities. As
seen from the example of some conservative lawmakers in Congress who
have been vocal
leaders
in the fight to keep racial history out of the classroom, there is no
guarantee that legislation to preserve affirmative action policies
would be enacted even with the enthusiasm of congressional Democrats.
Furthermore,
public opinion on affirmative action is tepid. Although Gallup
determined
that 62 percent of Americans broadly endorse “affirmative
action programs for racial minorities,” there are indications
that support narrows with respect to affirmative action in the
context of higher education specifically. Shortly before the lawsuit
against Harvard’s affirmative action policy was set to be
heard, WGBH News conducted a poll in which 72
percent
of respondents opposed the Supreme Court jurisprudence allowing a
person’s racial background to factor into admissions decisions.
Perhaps most tellingly, California voters opposed
restoring the state’s capacity to consider race, along with
other identity elements, in admitting students to its public
universities and hiring public employees. An argument could be made
that if affirmative action could not survive in liberal California,
what hope does it have of achieving national protection?
The
anger surrounding teaching children a more expansive (and truthful)
version of American history can largely be understood as a backlash
to the Black Lives Matter era, the victories of which have been
largely symbolic
and localized.
The legislative entrenchment of affirmative action will be spun by
conservatives as “reverse
racism”
that hampers the educational advancement of white children. That
argument will hold traction among conservatives, moderates, and
progressives. As we prepare for the possibility of a post-Roe
future, it might also be time to anticipate a future in which
affirmative action is unavailable as a means of promoting diversity
in and economic mobility through higher education.
This
commentary
was produced by Local
Peace Economy,
a project of the Independent Media Institute.
