Nitesh Ranjan and Aman Upadhyay
Introduction
The United States Supreme Court recently held, in Students for Fair Admissions v. President and Fellows of Harvard College, race-based affirmative action to be unconstitutional in its decision regarding admission policies in the University of Harvard and North Carolina. The judgment has triggered debates and criticism in the US and different parts of the world. The Authors humbly submit that the US Supreme Court has erred in interpreting the fundamental right to equality guaranteed by the US Constitution in the instant judgement vis-à-vis the policy of affirmative action and holding such policies unconstitutional by failing to consider the long history of struggle and discrimination of minority races.
This article questions the interpretation of the term “equality” in the instant judgment. It also highlights the ongoing debates and uncertainties around its impact on society. The Authors in this article analyse these questions with a comparative analysis of the prevailing norms in India and suggest how the US Supreme Court may want to look into the judgments of the Indian courts and reconsider its judgment.
Importance of Implementing Affirmative Action in Educational Institutions
In his book ‘A Theory of Justice’, John Rawls outlines a vision for the fair allocation of societal resources like opportunities, wealth, and rights. His theory focuses on maximizing the marginalized people’s welfare while upholding basic liberties. While allocating resources, it becomes vital for a just society to determine how the injustice done with any segment of the society could be restored because history indicates that social contracts are likely to be broken. Education is one of the most essential tools for improving any individual’s or society’s condition because other resources are directly or indirectly dependent on it. The allocation of seats in educational institutions must thus, be so that the historically deprived people may be given the fair chance to secure esteem in society.
Affirmative action is one of the significant attributes of this view; it is a policy designed to eliminate persisting historical prejudice against minorities by giving equitable representation in educational institutions and other sectors. It tries to make better and mitigate the effects of decades of systematic discrimination while providing a level playing field to marginalised people. Affirmative action also helps in alleviating stereotype threats, which is the fear that individuals have of confirming a negative stereotype about a group with whom they identify themselves. It could help combat this by providing an inclusive environment where these individuals feel more valued and empowered.
Since the 1960’s affirmative action has been used to overcome a legacy of segregation and inequality in higher education. Many American colleges preferred students from underrepresented backgrounds to promote diversity. The recent US Supreme Court decision has the effect of tinkering with the delicate fabric of reasonable preferences. The significance of affirmative action and the repercussions of declaring it unconstitutional by the Supreme Court can also be understood from Justice Brown Jackson’s dissenting opinion, who called the verdict “truly a tragedy for us all.” According to him, results will become clear over time. However, the Court’s own errors are now both excruciating and vividly remembered. Affirmative action not only ascertains the representation of marginalised people but also ensures the mitigation of structural barriers. Thus, affirmative action becomes essential for an inclusive and healthy society.
Untouchables & Blacks: Discrimination in India & US
Most of the instant judgment’s detractors argue that affirmative action is a tool to combat the historical injustice faced by African Americans in the United States. For a proper understanding of the effect of the judgement upon American society, it becomes essential to look at the comparison of African Americans in the USA with the Dalits of India, because the historical injustice faced by them both resembles each other. The Indian Dalits have been subjected to untouchability and forced menial labour in a caste system resembling America’s slave system. Discrimination based on social hierarchy and racial categorisation has significantly influenced marginalised communities in both India and the United States. Dalits have faced discrimination in India due to the practice of untouchability, which originated from the caste system. In contrast, in the United States, the historical legacy of slavery, segregation, and systemic racism has resulted in enduring disparities for Black Americans in education, employment, housing, and the criminal justice system.
In India, the implementation of the reservation policy has resulted in improved representation and opportunities for historically marginalised populations. It paves the path to reducing socio-economic inequalities and empowering people to fight for justice and equal rights. But most importantly, the scope for improvement heavily persists in Indian and American society, as there is still widespread deprivation of opportunities based on caste and race, respectively. It could not be pretended that structural racism no longer exists in American society. American society is not in a situation where the door of affirmative action can be closed based on colour blindness. The Indian Courts have always had a positive attitude while deciding on the issue of reservations in educational institutions. The US Supreme Court may observe the trajectory followed by the Indian Courts on the case according to the need of the hour and should try to incorporate them into their jurisprudence.
The Majority View: Upholding Racial Segregation?
Affirmative action was on precarious ground since DeFunis v. Odegaard, where the constitutionality of racial reservations was first challenged, though it was dismissed. After that, the University of California v. Bakke set a strong precedent allowing racial preference. In the present case, Chief Justice Robert, who has long been a sceptic of affirmative action, wrote the decision for the Court majority, arguing that universities and colleges in America must apply a colour-blind criterion in admissions. The majority view mostly relies upon Brown v. Board of Education. Considering it as precedent, it was held, “Today, this Court stands in the way and rolls back decades of precedent and momentous progress”. It is humbly submitted thar the Court’s interpretation of judgement in the context of just colour blindness is flawed and incomplete. Contrary to the Supreme Court’s interpretation today, the Court’s unanimous 1954 decision in Brown v. Board of Education read with the Fourteenth Amendment prohibits state-sponsored segregation in education, recognising that access to school was required for black children to achieve full citizenship. This led to a system of race-based affirmative action expounding the concept of positive discrimination and intelligible differentia, which are permissible for societal welfare and integration.
The Court has interpreted the judgment only to justify their opinion, but in an ambiguous way. The Brown judgment tried to bring more inclusivity by bringing blacks and whites under the same roof in learning. However, the instant judgment lifts the protection provided by the Brown judgment in a country with still deep-rooted racism. The instant judgement would have made sense had racism been completely obliterated from the US. However, that is not the case presently and it is evident that there is a substantial difference between the objectives sought to be achieved through these judgments. The judgment shall thus, have a long-lasting impact on US society regarding decreased diverseness and increased segregation.
Need for reconsideration of Judgement
Many universities, including Harvard and UNC, believe that including race in the application process is critical for increasing diversity on campus. Despite this increase, however, coloured students remain unrepresented on campuses across USA. President Biden categorically stated in a press conference, “Because the truth is, we all know discrimination still exists in America”. The Supreme Court must have considered that applying the pure doctrine of equality is pernicious to the still white-dominated American society. The recent ban on affirmative action by the US Supreme Court will have a detrimental impact on the inclusivity and egalitarianism of educational opportunities, undermining diversity and equitable access to education. Several major companies in the US which recruit thousands of workers have opined in the Supreme Court that the abolition of affirmative action will lead to undermining the diverse, highly educated employees, which will lead to a detrimental impact on the profit.
An effective reservation serves the purpose of promoting a diverse and inclusive society. The Authors believe that to enhance the effectiveness of any reservation policy and ensure equitable access for all individuals, it is prudent to implement a cap limit on reservations, thus safeguarding the rights of unreserved category individuals. For instance, rather than granting reservation solely based on one aspect of backwardness, a combination of factors such as social and economic status should be taken into account. This approach ensures a more equitable utilization of the reservation policy. Reconsideration of the judgement becomes important considering the potential implications of such a ban on diversity and equal opportunity to access education and, consequently, the deleterious ramifications upon the economy. The Authors believe that the earlier American affirmative action system passed the test of intelligible differentia and reasonable nexus and should not have been tinkered with.
The authors are 3rd year students of National University of Study and Research in Law, Ranchi
Image Credits: Copyright (c) 2020 Michal Urbanek/Shutterstock
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