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Written by: Bryan Anderson
Published: February 2024

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.

Summit panelists noted that African Americans have lower life expectancy, worse health, higher infant mortality, higher maternal mortality, higher exposure to environmental toxins, and overall worse health outcomes compared to white people.  Similar inequities show a deep racial wealth and income divide. Research shows that inequities in health and wealth are in significant part a legacy of structural, institutional and individual racism that predated the country’s founding and that persists to the present day.

In the SFFA decision Justice Roberts wrote that “Eliminating racial discrimination means eliminating all of it.”  It is difficult to see how eliminating affirmative action in university admissions eliminates stark health and wealth inequities.

Discussing these data and potential federal and state policy remedies exposes Florida professors and instructors to being fired.  A chilling effect remains while the injunction against enforcement of the Stop WOKE Act is pending because the results of the state’s appeal of the injunction are not known.

One panelist noted a Florida medical school professor who observed that not being able to teach about the causes of and possible cures for health inequity risked students concluding that racial inequity is caused by eugenic racial differences, not the ongoing self-replicating legacy of racism.

Past Florida Bar President and keynote speaker Eugene Pettis reminded summit participants that the summit could take place in a hotel conference room only because attorneys who came before us knew that segregation is wrong and had the courage to act for change.  Progress is possible.