As the Supreme Court’s term comes to a close, we decry three decisions that will harm people of color and LGBTQ people across the United States. Coming on the heels of the anniversary of the Dobbs decision striking down Roe, these recent decisions inspire us to fight harder than ever for equal justice for all as public interest lawyers.
On June 29, 2023, the U.S. Supreme Court effectively ended race-conscious admissions policies at colleges and universities across the country. By a 6-3 vote, the Court invalidated admissions programs at Harvard and the University of North Carolina. Students For Fair Admissions, Inc. v. President and Fellows of Harvard College, No.20-1199, 600 U.S. — (2023). As Justice Ketanji Brown Jackson observed in her dissent, “with let-them-eat-cake obliviousness … the majority pulls the ripcord and announces ‘colorblindness for all’ by legal fiat.” Id. at 25. As we saw in California public universities after the passage of Proposition 209, the SCOTUS decision will have a severe and negative effect on ongoing efforts to increase diversity and fight racism in higher education.
On June 30, 2023, the Court sided with a Colorado website designer who wishes to discriminate against same sex couples. The decision in 303 Creative LLC v. Elenis, No. 21-476, 600 U.S. — (2023) is especially painful in light of our firm’s participation in the case through an amicus brief on behalf of former Democratic California congressmember Tony Coelho, a principal author of the Americans with Disabilities Act, and a coalition of 10 disability rights organizations. The brief, which is available here, argued that endorsing the company’s proposed First Amendment defense to anti-discrimination laws would not only open the floodgates to discrimination against LGBTQ people, it would allow companies that contend they offer expressive goods and services and whose proprietors harbor ableist views—for any reason, not just religious—to refuse to serve people with disabilities. The case poses the same threat to people of color. Unfortunately, in today’s ruling, the Court disregarded this and other arguments and found for 303 Creative. As Justice Sotomayor said in her dissent, which Justices Kagan and Jackson joined, “Today, the Court, for the first time in its history, grants a business open to the public a constitutional right to refuse to serve members of a protected class.” 600 U.S. at 1 (Sotomayor, J., dissenting).
Also on June 30, in Biden v. Nebraska, No. 22-506, 600 U.S. — (2023), the Court held that the Secretary of Education does not have authority under the Higher Education Relief Opportunities for Students Act of 2003 (HEROES Act) to establish a student loan forgiveness program that would have canceled roughly $430 billion in student loan debt. As with the other two decisions, this one will have a disproportionate and negative effect on people of color and communities that have been historically subjected to racism and discrimination in our country.
Those who identify as LGBTQ, and those who seek a fair opportunity for education and advancement in our still racist society, deserve a jurisprudence of respect for precedent and compassion. This week’s shocking disregard of precedent continues to mark a sad retreat from such jurisprudence. We will continue to fight for our vision of a just, diverse and equal society for all while respecting the true and non-theocratic core of First Amendment rights.