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Civil rights lawyer and scholar Sherrilyn Ifill and Harvard Radcliffe Institute Dean Tomiko Brown-Nagin discussed the Supreme Court’s decision to effectively strike down affirmative action at a Wednesday talk at the Knafel Center.
Brown-Nagin and Ifill — a recipient of the 2022 Radcliffe Medal who previously led the NAACP Legal Defense Fund — discussed the immediate aftermath of the Students for Fair Admissions’ suit against Harvard as well as the broader history of affirmative action at the Court. Roughly 50 students, faculty, and other affiliates attended the event.
Brown-Nagin — an award-winning legal historian — opened the conversation through the lens of history.
“I’m just tickled that so many justices want to play in our league,” she said. “In this Supreme Court’s decision, what we found were starkly different understandings of the meaning of history.”
According to Brown-Nagin, the majority opinion in the Supreme Court ruling came to a different interpretation of the Equal Protection Clause of the 14th Amendment than historical precedent. In a June decision, the majority found that Harvard violated the Equal Protection Clause by considering race in its undergraduate admissions process.
Ifill is currently teaching a class at Harvard Law School about the 14th Amendment, which is a central focus of her current scholarship. As the inaugural endowed chair in civil rights at Howard University School of Law, Ifill is opening the 14th Amendment Center for Law & Democracy in spring 2024.
She described the 14th Amendment as “maybe the most important provision of our Constitution.”
“I think we’re being called down to more vigorously engage the 14th Amendment, which, after all, was created for the purpose of resetting American democracy to potentially be, for the first time, a true multiracial democracy, which is a very ambitious thing and a very difficult thing,” she said.
In a concurring opinion on SFFA v. Harvard, Justice Clarence Thomas argued that the Constitution is “color-blind, and neither knows nor tolerates classes among citizens.”
But Ifill pushed back on this interpretation, pointing to Constitutional amendments borne out of the Civil War — like the 13th Amendment — that explicitly took race into consideration to move toward racial equity.
“Why were they ending slavery if it didn’t exist, and who were the people who were enslaved? Black people,” Ifill said.
Ifill also discussed the Supreme Court’s 1954 decision in Brown v. Board of Education, which ruled that racially segregating schools was unconstitutional under the Equal Protection Clause. According to Ifill, the case — which struck down Plessy v. Ferguson’s “separate but equal” doctrine — has been used to justify overturning long-held legal precedent.
“Brown has conveniently become that kind of symbol that allows people to say, ‘Yes, there was a time when it was bad, but then this wonderful thing happened and it all got better,’” Ifill said.
Ifill said she is uncertain about what policies will be acceptable under the Supreme Court’s decision, and she said she believes its broader impact can only be learned with time.
Specifically, she pointed to whether or not the Supreme Court opts to hear a case surrounding Thomas Jefferson High School for Science and Technology, a Virginia magnet school with race-conscious admissions policies. These policies have increased the enrollment of Black, Latinx, and low-income students, but they have led to a roughly 20 percentage point decrease in the proportion of Asian students in the class.
Despite lingering uncertainty about the Supreme Court decision, Ifill said she believes institutions should be open to new strategies for ensuring diverse future classes while complying with the ruling.
According to Ifill, these strategies could include ending legacy admissions, recruiting based on socio-economically disadvantaged zip codes, and versions of Texas’ top 10 percent plan — a policy that guarantees public university admissions to high school students in the top 10 percent of their class.
“You have to comply with Supreme Court decisions, but I don’t think you have to overcorrect,” Ifill said.
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