The end of abortion rights in the United States seems to be a foregone conclusion. After rejecting efforts to temporarily halt the Texas abortion law on two separate occasions, the Supreme Court may validate the law this term. Undermining Roe v. Wade, or overruling it as the court’s decision on Mississippi’s 15-week abortion ban portends, begs the question of what other precedents the Supreme Court will be willing to weaken or abandon.

Affirmative action in higher education immediately comes to mind.

With the replacement of Justice Anthony Kennedy—who famously helped reaffirm the constitutionality of affirmative action in Fisher v. University of Texas—upon his retirement with Justice Brett Kavanaugh and the subsequent filling of the late Justice Ruth Bader Ginsburg's seat by Justice Amy Coney Barrett, the days of affirmative action seem as numbered as those of legalized abortions. Conservatives, skeptical of the justification for affirmative action, enjoy a majority on the Supreme Court. A viable challenge to affirmative action that was only recently shot down in federal court may receive a more favorable ruling if it is heard by a more sympathetic conservative Supreme Court.

As with abortion rights, it is possible for Congress to enact legislation that protects affirmative action policies. However, the current national conversation on critical race theory suggests that these efforts would face an uphill battle.

The New Culture War

Conservative politicians, pundits, activists, and parents united during the summer of 2021 to face a common enemy. No, that enemy was not the likely candidate of the coronavirus pandemic, which so far has killed more than 700,000 Americans and counting. Nor was it the insurrectionists and anti-democracy extremists who falsely claim that the 2020 election was stolen from former President Donald Trump. No, these allies banded together to engage in a meaningless culture war against critical race theory.

The tragic murder of George Floyd in 2020 was a cultural inflection point that has inspired national introspection on the ways in which racism has permeated every facet of American life. Every day citizens have incorporated terms like “white privilege,” “implicit bias,” and “microaggression” into their vocabularies. Corporations are beginning to promote internal diversity and contribute to the economic development of historically marginalized communities. Educational institutions at all levels are encouraging conversations and offering courses on institutionalized racism, which is at the core of critical race theory. But for every positive action, there is an equally opposite negative reaction.

Local school board meetings have become battlegrounds. Parents and conservative activists have accused schools of using critical race theory to “indoctrinate” their children and spread “Marxism.” These accusations may be the least of school districts’ concerns: School board members have received threats to their safety, while many school boards have become engulfed in litigation, complaints, and record requests relating to critical race theory. Conservatives at all levels have egged on these efforts from the Fox News Network, which obsessed over critical race theory to the tune of mentioning it 1,900 times in under four months, to Trump acolyte and Florida Governor Ron DeSantis, who blasted critical race theory as “[t]eaching kids to hate their country and to hate each other.”

Harmful rhetoric is now giving way to tangible consequences. States like South Carolina and Idaho have passed legislation to prevent schools from teaching the principles of critical race theory. Oklahoma passed legislation clearly intended to shape the contours of how discussions of race can occur in the classroom. The debate over the place of the tenets of critical race theory in the classroom threatens to tip the scales in the Virginia governor’s race. Federal conservative lawmakers have joined the chorus of criticisms, including Senator Tom Cotton (R-AR) and Representative Dan Bishop (R-NC), both of whom introduced the Stop CRT Act.

An Uncertain Future

The central irony of this nonsensical hysteria is that critical race theory is a legal framework taught in law and graduate schools, not primary and secondary schools. Discussions of history, racism, and diversity are not synonymous with critical race theory, so no children were ever in so-called danger of being exposed to this pedagogy. But Republicans are well aware of the provocative nature of the term “critical race theory.” The potential to wield that term like a battle-ax to frighten suburban white voters and ultimately frustrate progress on racial justice issues was too tempting for conservatives to ignore. That this fearmongering political strategy is working, based on the explosion of interest in school board affairs, could be the death knell for affirmative action.

Before critical race theory, affirmative action was the buzzword deployed by conservatives to stoke racial division. Affirmative action has always been a controversial policy. But if this level of panic is the reaction to the mere discussion of racial inequality in schools, one can only imagine how apoplectic the reaction will be to Congress seeking to preserve or even expand affirmative action. One thing is for certain: Outrage at the presence of racial discussions in the classrooms means that there is already a coalition of opponents mobilized to challenge codifying affirmative action.

Standing at the cusp of losing abortion rights has galvanized progressives, but it is hard to envision affirmative action inspiring that same level of activism, even among those who might be somewhat sympathetic. Indeed, protests against the Texas abortion law began almost immediately after it went into effect in September. Nationwide marches hosted by the Women’s March to vocalize support for abortion rights totaled at least 600. Whole Woman’s Health, which is part of a network of abortion clinics, sued for an injunction against the Texas abortion law. Spearheaded by women in Congress, the Women’s Health Protection Act of 2021, which would maintain a woman’s right to abort her pregnancy, passed in the House of Representatives.

Attaining higher education is still a relative privilege, by contrast, so affirmative action is not as energizing a principle as abortion rights—which directly impact half the population—theoretically are. An argument, though one with which I disagree, could also be made that the stakes of affirmative action are not as high as other racial justice issues, including voting rights and police brutality. While legislation to address these focuses stalls, progressives in Congress may be reluctant to add protecting affirmative action to their list of priorities. As seen from the example of some conservative lawmakers in Congress who have been vocal leaders in the fight to keep racial history out of the classroom, there is no guarantee that legislation to preserve affirmative action policies would be enacted even with the enthusiasm of congressional Democrats.

Furthermore, public opinion on affirmative action is tepid. Although Gallup determined that 62 percent of Americans broadly endorse “affirmative action programs for racial minorities,” there are indications that support narrows with respect to affirmative action in the context of higher education specifically. Shortly before the lawsuit against Harvard’s affirmative action policy was set to be heard, WGBH News conducted a poll in which 72 percent of respondents opposed the Supreme Court jurisprudence allowing a person’s racial background to factor into admissions decisions. Perhaps most tellingly, California voters opposed restoring the state’s capacity to consider race, along with other identity elements, in admitting students to its public universities and hiring public employees. An argument could be made that if affirmative action could not survive in liberal California, what hope does it have of achieving national protection?

The anger surrounding teaching children a more expansive (and truthful) version of American history can largely be understood as a backlash to the Black Lives Matter era, the victories of which have been largely symbolic and localized. The legislative entrenchment of affirmative action will be spun by conservatives as “reverse racism” that hampers the educational advancement of white children. That argument will hold traction among conservatives, moderates, and progressives. As we prepare for the possibility of a post-Roe future, it might also be time to anticipate a future in which affirmative action is unavailable as a means of promoting diversity in and economic mobility through higher education.

This commentary was produced by Local Peace Economy, a project of the Independent Media Institute.

BC Guest Commentator Ebony Slaughter-Johnson, JD, is a freelance writer and a writing fellow for Local Peace Economy, a project of the Independent Media Institute. Her work has appeared on AlterNet, U.S. News & World Report, Equal Voice News and Common Dreams.

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