Op-Ed: The Supreme Court will end affirmative action. What happens next?
When the Republican Party is in control of the White House and Congress, the question that arises in policy discussions is not “should we have an affirmative action policy?” but rather, “how many affirmative action programs should we have?”
The answer to those questions depends on the particular circumstances of the institution where an affirmative action policy is being considered. The Supreme Court has not yet considered a case that involves affirmative action—but it will, and it will not answer any question “how many affirmative action programs should we have?”
What will the Supreme Court do in the future? I expect that the majority’s decision—that there is no constitutional right to an education, only a “congruent and logical” one—will be affirmed.
So, what happens now? After the U.S. Supreme Court rules in the affirmative action case, the policy-making process shifts.
That shift could not come at a more awkward time. Since Trump and his appointees have taken office, the Trump administration has eliminated four key programs that supported affirmative action or even existed as recently as 2001.
The current administration has taken an unprecedented step and eliminated from federal law the requirement that federal agencies consider race and ethnicity in making employment decisions. Now, they can use criteria that they consider to be “more efficient, effective, and timely.”
The Trump administration has also taken an extraordinary step. The White House has reversed course and instructed the Justice Department to defend the constitutionality of the 1965 Voting Rights Act of 1964.
The Supreme Court will affirm the judgment.
The Voting Rights Act is a keystone in our country’s history of racial discrimination and discrimination against the poor and the vulnerable. Its implementation in 1965 was instrumental in driving the first civil rights movement in the South.
It is not a question of whether Congress has the authority to regulate voting and elections in the states, but rather, whether the Constitution requires it. The question in the affirmative: the Voting Rights Act does not violate the Constitution’s right to vote.
The ruling in the affirmative action case will not be the end of affirmative action.