DIVERSITY CORNER
DIVERSITY CORNER
2023 Diversity Summit – Navigating the End of Affirmative Action
BRYAN ANDERSON
In 2023 , the United States Supreme Court ended affirmative action in university admissions . Relatedly , the recent Florida “ Stop WOKE Act ” law prohibits teachers and instructors from advocating for affirmative action among other racial equity positions , while not restricting advocacy against affirmative action .
In December 2023 , the Palm Beach County Bar Association and the F . Malcolm Cunningham Bar Association convened a summit to explore these matters .
Attendees included the first African American Florida Bar President , the first African American woman president-elect designate of the Florida Bar , a distinguished lifetime scholar and advocate for racial justice from the University of Miami , as well as the current Palm Beach County Bar Association President , two past county bar presidents , and current and retired trial and appellate judges . What did we hear and learn ?
The Supreme Court ’ s 2023 Abolition of Affirmative Action in College Admissions
University of Miami Law School Professor Donald M . Jones explained the history behind the United States Supreme Court ’ s recent decision in Students for Fair Admissions v . Harvard abolishing affirmative action based on race in college admissions .
Professor Jones said there was no single majority opinion in the 1978 Regents of the University of California v . Bakke case which approved affirmative action .
A Bakke solo concurring opinion supported affirmative action , with the opinion stating that “[ t ] he interest of diversity is compelling in the context of a university ’ s admissions program .”
Professor Jones pointed out a road not taken in the Bakke case . Justice Thurgood Marshall wrote that the legacy of unequal treatment of African
Americans and the remedial purpose of the Fourteenth Amendment after the Civil War in protecting African Americans ’ rights justifies affirmative action as a remedy for the effects of past racial discrimination .
Professor Jones said that in 2003 the U . S . Supreme Court accepted the Bakke “ diversity ” rationale in Grutter v . Bollinger , upholding affirmative action for a limited time . Justice O ' Connor wrote in Grutter that the " Court expects that 25 years from now , the use of racial preferences will no longer be necessary to further the interest approved today ."
Just less than 25 years later , Chief Justice John Roberts wrote the majority opinion in Students for Fair Admissions v . Harvard (“ SFFA ”), holding that race-based affirmative action programs in college admissions violate the equal protection clause of the Fourteenth Amendment . The Supreme Court held that the use of race was not a compelling interest and that the programs of the universities before the Court bore little or no relation to values of viewpoint and intellectual diversity .
Professor Jones explained that the 2023 SFFA decision ignored the racial discrimination remediation purposes of the Fourteenth Amendment . In a dissenting SFFA opinion , Justice Sonia Sotomayor wrote that “ ignoring race will not equalize a society that is racially unequal . What was true in the 1860s , and again in 1954 , is true today . Equality requires acknowledgment of inequality .”
The Florida Stop WOKE Act and Affirmative Action
In 2022 , Florida enacted the “ Individual Freedom Act ,” colloquially referred to as the Stop WOKE Act .
The law prohibits mandatory training or instruction on eight concepts involving race and racial equity , including the concept of affirmative action as a remedy for racial discrimination . It is not , however , illegal to advocate against the racial equity concepts .
Panelists at the Palm Beach County Bar Association ’ s December summit included attorneys litigating Pernell v . Florida Board of Governors , in which the U . S . District Court for the Northern District of Florida enjoined enforcement of parts of the Stop WOKE Act .
( Continued on next page )
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