‘This is a time for concern’ says law professor with Trump poised to alter the court’s balance after Anthony Kennedy’s resignation

This article is more than 2 years old

This article is more than 2 years old

Advocates of affirmative action have expressed concern over Donald Trump’s potential pick for a new supreme court justice, warning that his choice could threaten 40 years of legal precedent advancing diversity in schools, colleges and the workplace.

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Following the resignation of Justice Anthony Kennedy last week, the president is set to announce his conservative nominee for the vacant seat on Monday – a move that could alter the balance of the court for generations to come.

“This is a time for concern,” said Deborah Archer, professor at NYU Law and former staff attorney at the NAACP’s Legal Defense Fund.

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Earlier this week, the Trump administration rolled back Obama-era guidance encouraging schools and colleges to take a student’s race into account to promote diversity in admissions. Though the rollback does not change the law, Archer says it sends the message that this administration does not think diversity and inclusion are important.”

This message will not only be heard by schools and colleges; but also by Trump’s nominee for the supreme court.

On the issue of affirmative action, Justice Kennedy is most widely known for his majority opinion Fisher v University of Texas, and he has always, even in dissent, agreed that race is an allowable factor for consideration. The six cases about affirmative action heard by the supreme court since 1978 have echoed that sentiment, creating precedent.

Art Coleman, managing partner at EducationCounsel and former deputy assistant for civil rights at the Department of Education, said though he could not say what impact Trump’s choice for the supreme court would have on affirmative action, “it’s certainly a moment for pause”. The Trump administration has presented the “brewing actions of a perfect storm, perhaps by coincidence”, he said.

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With Kennedy’s “swing vote” gone, Archer and Coleman say the most pivotal case for affirmative action that could come before the supreme court involves Harvard.

Last year, an organization called Students for Fair Admission, funded by Edward Blum, a serial lawsuit filer, revived a case that had been dismissed under the Obama administration, saying newly released documents showed that admissions officials had discriminated against Asian Americans. The DoJ is now investigating Harvard’s admissions practices, even calling on Harvard College to unseal its admissions data.

Judge Amy Coney Barrett, who is among those on Trump’s shortlist for the supreme court nomination, has openly questioned the role of “stare decisis” – or legal principle – to rationalize the deciding factors of a case.

For affirmative action advocates, who have relied on 40 years of legal precedent to support their cause, Judge Barrett may not be someone to count on.

Coleman said “stare decisis is there for a reason”, saying it offered a stable set of rules to follow.

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Judge Raymond Kethledge from the sixth circuit, another of Trump’s potential picks, recused himself from a vote on the constitutionality of Michigan’s ban on affirmative action programs at state higher education institutions.

Trump’s nominee, whoever it may be, will have a chorus of support on the court to undo nearly four decades of precedent. Chief Justice John Roberts, who has voted against affirmative action cases consistently in the past has said, “it’s a sordid business this divvying us up by race”.

Justice Clarence Thomas believed that in Fisher, the University of Texas’s affirmative action policies “echoed the hollow justifications advanced by the segregationists”. And in his dissent from Fisher, Justice Samuel Alito said: “this is affirmative action gone berserk.”

With Kennedy gone, a justice department bent on probing colleges’ admissions policies and programs, an administration recommending “race-blind admissions standards”, and the potential for a supreme court with solidly anti-affirmative action justices, the future of affirmative action looks increasingly uncertain.