Backlash: How Racial Justice in Higher Education Is Being Trumped by Politics

Abstract

This article discusses contemporary social and political backlash to racial justice and how it has overshadowed and flouted higher education antidiscrimination law and principles of racial justice. The first three parts chart the evolution of U.S. Supreme Court precedent in higher education affirmative action cases. Part I interrogates the Court’s fallacious detachment of affirmative action from its racial justice origins in Defunis and Bakke. Part II discusses how the Grutter majority tacitly departed from Bakke, using the vague concept of critical mass to seemingly empower schools to engage in affirmative action as a racial justice tool. Part III explains how Students for Fair Admissions (SFFA) gave shine to a less extreme, but nonetheless specious, cousin of colorblindness that I term color-neutrality. This posture, while a clear victory for affirmative action antagonists, nonetheless preserved a narrow path for schools to consider applicant race, even with racial justice intentions. The concluding parts of the article address the societal hostilities to racial justice and their impacts on higher education. Part IV explains how increasingly dim attitudes towards the Black Lives Matter movement and the normalizing of caustic rhetoric by first-time candidate Donald Trump seeded contemporary malcontent. Part V details how political elites have instigated and validated the resulting backlash through messaging that relies heavily on willful mischaracterizations of SFFA and policymaking that relies heavily on suppressing certain speech and aspersing certain ideas. Lastly, Part VI uses law school enrollment data to illustrate how the backlash is narrowing pathways of opportunity, particularly for Black aspiring lawyers