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Guest Essay

If the Supreme Court Abolishes Affirmative Action, Here’s What Women Need to Do June 11, 2023 A protester, seen from behind, holds a cardboard sign reading “Protect Affirmative Action.” Credit…Christopher Lee for The New York Times A protester, seen from behind, holds a cardboard sign reading “Protect Affirmative Action.”

By Shira A. Scheindlin

Judge Scheindlin served on the United States District Court for the Southern District of New York from 1994 to 2016.

Any day now the Supreme Court will decide two cases that will determine the future of affirmative action — one involving race-conscious admissions at the University of North Carolina and a companion case involving Harvard.

Although debates around affirmative action have typically focused on people of color, the policy has also applied to gender, and women have been among affirmative action’s greatest beneficiaries. Now, after decades of allowing these programs in college admissions, the Supreme Court appears poised to weaken or dismantle efforts to make higher education more available to members of historically underrepresented minority groups. Listen to ‘Matter of Opinion’ Four Opinion writers on the scandal-prone justice and the Supreme Court. Opinion | Michelle Cottle, Ross Douthat, Carlos Lozada, Lydia Polgreen and Phoebe Lett ‘Matter of Opinion’: What if We Just Paid Clarence Thomas $1 Million? May 11, 2023

As a successful white woman who served for many years as a judge for the U.S. District Court for the Southern District of New York, I feel it is incumbent upon me and other white women in my generation to reaffirm the policies that helped us secure our positions in political institutions, academia, business, medicine and law. If the Supreme Court overturns or neuters this well-settled law, every one of us who proudly bore the title “the first woman” must work to ensure underrepresented communities maintain access to elite educational institutions.

Opponents of affirmative action suggest that it is no longer needed because the United States has reached the stage where everyone is treated equally. This is simply, and unfortunately, not the case. People of color are woefully underrepresented in many classrooms and careers. As only one example, Black lawyers make up only 2.2 percent of law firm partners, according to a 2021 National Association of Law Placement report, with Black and Latino women at less than 1 percent.

Opponents also falsely claim that students of color are being admitted to fill racial quotas, depriving white students of the chance to obtain a coveted spot. But affirmative action, as practiced today, does not discriminate against one group in favor of another.

Rather it considers race as one factor among many to put the applicant’s experiences in context. Courts have repeatedly held that a holistic admissions process — which includes letters of recommendation, guidance counselor reviews, extracurricular activities, alumni interviewer impressions, essays and academic performance — ensures that all of an applicant’s experiences and characteristics are considered.

Affirmative action policies, whether legally mandated or voluntary, have proven overwhelmingly effective in helping historically marginalized groups gain a higher education, and thus achieve the success that flowed from that education. For example, because colleges and universities (including those that were formerly all-male) made a concerted effort to recruit women, today women are now much more likely than men to graduate from college. By 2019, women outnumbered men in the college-educated labor force. People of color are entitled to these same opportunities, based at least in part on their historical exclusion.

Last August, more than 60 major American companies, including Apple, Google, Starbucks and United Airlines, filed a legal brief with the Supreme Court urging it to protect affirmative action. Those companies said the policy was a critical tool for creating a pipeline to diverse workforces and boardrooms. Similarly, an alliance of over 300 law firms filed a brief underscoring the importance of developing diverse leaders equipped with the skills to thrive in the global marketplace. Thirty-five retired military leaders, including four former chairmen of the Joint Chiefs of Staff, submitted a brief stating that eliminating affirmative action programs would “impede our military’s ability to acquire essential entry-level leadership attributes and training essential to cohesion.”

When filling judicial law clerkships, a highly sought-after post, I made a concerted effort to find diverse applicants, but an overwhelming number of clerks chosen by federal judges are white. For the Supreme Court term that began last October, of the 38 clerks, 25 were men and 13 were women, the least balanced in terms of gender in the last five years, according to the newsletter Original Jurisdiction. The court doesn’t release data on race, but the newsletter’s author, David Lat, said that, based on his research, two were Black, two were Hispanic and two were Asian.

It takes substantial, deliberate efforts to ensure that well-qualified people of color have the same opportunities in education and the work force that once were the exclusive preserve of white men. This is imperative for our democracy to thrive. As Justice Sandra Day O’Connor’s majority opinion upholding affirmative action in Grutter v. Bollinger recognized in 2003, paths to leadership must be “visibly open to talented and qualified individuals” of all backgrounds so that these leaders will have “legitimacy in the eyes of the citizenry.”

Moreover, exposing future leaders to diverse perspectives and experiences produces benefits that are fundamental to a functioning democracy, ranging from better problem-solving to reduced prejudice and increased empathy.

We rightly celebrate the achievements of women and people of color on the bench. The federal judiciary, for example, now has the first Black female Supreme Court justice, the first Black female judge on the United States Court of Appeals for the 11th Circuit, and the first Latino judge on the Court of Appeals for the District of Columbia Circuit. And the nomination of the first Latina judge to sit on the Court of Appeals for the Fifth Circuit is pending in the Senate.

But there is still more progress to be made, in the courts and beyond, especially for women of color who face unique barriers because of sexism and racism. White women must leverage the privilege and positions they have achieved and stand alongside communities of color.

We have an obligation to recommend, hire, promote, nominate and honor not only those who look like us but those who do not. If we all do that only twice in our careers we will have gone beyond merely talking about diversity to achieving the goal of creating a country in which opportunity and advancement are open to all.

The social fabric of universities, and consequently our greater society and our democracy, depends on it.

Shira A. Scheindlin is a former federal judge in the Southern District of New York and was a co-chair of the board of the Lawyers’ Committee for Civil Rights Under Law.

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