Now that Affirmative Action is Dead, Look Back for the Way Forward | NASW Member Voices

Aug 2, 2023

United States Supreme Court building

By Chad Dion Lassiter, MSW

When the Supreme Court finally declared the Civil Rights Act of 1875 unconstitutional, Frederick Douglass, amid an outpouring of outrage, advised that we must first take a collective deep breath.  

The Supreme Court had killed the law that guaranteed African Americans access to public accommodations and stopped barring them from serving on a jury on the grounds it didn’t control actions of individuals.

It appeared this reviled 1883 decision would grind African American progress to a halt.

“We may be better prepared to speak calmly and wisely than is possible now. We have been grievously wounded in the house of our friends, and the wound is too fresh, too deep, and too painful for the measured speech of ordinary occasions,” Douglass said at the time.

Taking a collective deep breath was good advice then and it is a good first step now.

In June, the Supreme Court ruled on behalf of Students for Fair Admissions (SFFA) that the constitution doesn’t allow public or private higher education institutions to consider race as a part of the admission process because it violates the Civil Rights Act of 1964 and the Equal Protection Clause of the Fourteenth Amendment.

With that, more than 60 years of work to diversify schools and provide opportunities for minorities was undone.

The Supreme Court has a history of devastating decisions.  

  • Cases like the 1857 Dred Scott v Sandford, where an African American slave sued for his freedom, and the court decided Blacks were not citizens. Chief Justice Roger Taney uttered his infamous racist line that African Americans, “had no rights which the white man was bound to respect.” 
  • And the 1896 Plessy v Ferguson case, which enshrined the country’s separate but equal doctrine, giving legal cover to the creation of the Jim Crow system until Brown v Board of Education in 1954 declared state-sanctioned school segregation unconstitutional.

In June, Chief Justice John Roberts’s majority opinion eradicating affirmative action referred to Brown when he said, “Eliminating racial discrimination means eliminating all of it.”

  • Roberts’s words eerily echoed Supreme Court Justice Joseph Bradly who in 1883 questioned whether the Civil Rights Act of 1875 was even necessary. “When a man has emerged from slavery … there must be some stage in the progress of his elevation when he takes the rank of a mere citizen and ceases to be the special favorite of the laws …”

For us this means the highest court in the land is too fickle to stake our survival on.

As early as 1830, Richard Allen, who founded African Methodist Episcopal Church (AME), the first independent Black denomination in the United States, presided over the First Convention of Free Persons of Color to debate whether the legal process could lead to racial justice.

Judge A. Leon Higginbotham, Jr., a prominent federal appeals court judge and legal scholar answered the same question in 1974 when he said, “we must make major efforts in other forums without exclusive reliance on the federal legal process.”

Each legal setback is a renewed call for action.

This most recent decision should encourage all of us to invest in the educational institutions we have built to overcome oppression. Research shows that historically Black colleges and universities (HBCUs) and not majority white institutions, created the African American middle class and are still the drivers of socioeconomic mobility for low-income African American students. Their mission has not changed.

This most recent decision should also remind us that African Americans have always had to fight for justice while surviving in the midst of injustice.  The Supreme Court didn’t kill our progress in 1883. It won’t destroy our progress in 2023.

About The Author

Chad Dion Lassiter, MSW, is a nationally recognized expert in race relations. He has worked on race, peace, and poverty-related issues in the United States, Africa, Canada, Haiti, Israel, and Norway, and is frequently featured in the media providing commentary and solutions to racial issues. Lassiter is currently executive director of the Pennsylvania Human Relations Commission, where he has legislatively delegated authority to investigate filed complaints alleging the occurrence of unlawful discrimination in the areas of employment, housing and commercial property, education, and/or regarding public accommodations.