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Reflection on the SCOTUS Decision on Affirmative Action

It has certainly been a busy season for SCOTUS. On Thursday, Jun 29, 2023, the Supreme Court of the United States of America (SCOTUS) banned the use of race in admissions in higher education. It is important to note that this ban does NOT apply to military academies; they can still use race-conscious recruitment and admissions tactics. This is not the first time that a case has been made for the removal of affirmative action, and the supreme court has historically sided with affirmative action on the grounds that universities had a “compelling interest” in having a diverse student body. So, what has changed? Don’t universities still have a compelling interest in diverse student bodies?

Additionally, on Friday of that same week, SCOTUS struck down the Biden administration’s loan forgiveness program as unconstitutional and sided with a Colorado-based graphic designer that compelling them to treat same-sex couples equally is in violation of their right to free speech. This decision opens the door wide for anyone to discriminate and refuse service to a person based on their sexuality. It’s important to remember that discrimination and oppression does not happen in a vacuum; one could easily imagine a business owner refusing to serve anyone because a customer’s race, religion, gender identity, or disability doesn’t align with their idealized identity. It feels like we have stepped 75 years back in time.

What Is Affirmative Action?

Affirmative action, which grew out of the civil rights movement, are policies and practices within a government or organization that seeks to include women and people of color in education or employment that were historically discriminated against and excluded based on their gender, race, sexuality, creed, or nationality. I’d like to think of affirmative action as a restorative practice, the act of repairing relationships (or social contracts) between people and communities. The result is healthy communities, increased social capital, decreased crime and antisocial behavior, and repaired harm.

The term ‘affirmative action’ first appeared in 1961 by President John F. Kennedy Jr. during his Executive Order that instructed federal contractors to take “affirmative action to ensure that applicants are treated equally without regard to race, color, religion, sex, or national origin,” Thus, the Committee on Equal Employment Opportunity was established. The Civil Rights Act was signed into law in 1964, prohibiting employment discrimination by large employers (over 15 employees), whether or not they have government contracts. From this, the Equal Employment Opportunity Commission (EEOC) was established.

A timeline of Affirmative Action policies can be found here, which includes the amendment for the affirmative action executive order to include women in 1967, the legislation of the Americans with Disabilities Act, and the many times affirmative action was challenged and upheld by presidents and supreme court justices on both sides of the political aisle.

Why Was Affirmative Action Targeted?

Some groups began to question and challenge the fairness of affirmative action and started to label its effect as “reverse discrimination” against White and, more recently, Asian students. Some see the dismantling of affirmative action as a more sinister response to the changing demographics in this country. While 75% of Baby Boomers and older generations are White, 45% of Millenials, 50% of Gen Z, and an absolute majority of kids born since 2012 are non-White. While the diversification of the population cannot be contained, the consolidation and restriction of access to education, income, and power certainly can. This ruling to ban affirmative action in higher ed institutions threatens to widen the wealth and health gap that we already see in our society by exacerbating segregation and diminishing inclusivity.

How Will This Impact Us?

Since 1998, California public higher ed institutions have not been able to use race, ethnicity, nationality, or sex in its admissions or hiring decision at public universities thanks to Proposition (Prop) 209. The UC and Cal State systems experienced a 50% drop in its enrollment of underrepresented minority (URM) students. While some measures have improved since then, many institutions in the UC system have not returned to pre-Prop 209 levels and have seen the disparity between the number of high school graduates and the number of those admitted to college continue to grow in URM students. Many institutions have had to use extensive measures, including a combination of “proxy” measures and holistic interview techniques, to increase racial and ethnic diversity commensurate with the overall youth population. A measure to repeal Prop 209, Prop 16, was on the ballot in 2020, and was rejected by voters, keeping the ban on affirmative action in place in California.

As healthcare providers, we have vested interest in not only the diversity of our student body but also in our future workforce. Studies have and continue to show that patients do better (better adherence to treatment strategies, better follow up, and better health outcomes) when there is provider-patient concordance (shared identity, background, and/or language). Studies have also shown that URM doctors are more likely to practice in low-income and underserved areas (urban and rural settings). While SCOTUS may be failing to understand the full grasp of their decision, we must not lose sight of the needs of our patients and fellow community members.

Next Steps

No one wins when we allow racism, bigotry, xenophobia, homophobia, transphobia, misogny, sexism, and all other discriminatory sentiment to take a foothold and thrive. We will continue to value diversity. We will continue to promote inclusion and belonging. We will continue to partner with our community. We will continue to understand and provide our patients with the best care. We will continue to question the barriers that continue to plague our education and health care systems and remove those barriers one by one. We will continue to acknowledge, call out and reject racist, homophobic, xenophobic, and sexist policies, practices, and sentiments that threaten the integrity of our society and promote freedom and justice, for all.

Hear Dr. Shoge discuss the SCOTUS decision with other panelists in the webinar – Race in Optometry Part 6: Exploring Emerging Barriers to Success, which took place one day before the SCOTUS ruling. 

Race in Optometry Webinar Series