Update (6/29/23): The morning after publication, The Supreme Court announced a 6-3 decision ruling that the affirmative action programs at Harvard University and the University of North Carolina were in violation of the Fourteenth Amendment. In her dissent, Justice Sotomayor wrote:

“In so holding, the Court cements a superficial rule of colorblindness as a constitutional principle in an endemically segregated society where race has always mattered and continues to matter. The Court subverts the constitutional guarantee of equal protection by further entrenching racial inequality in education, the very foundation of our democratic government and pluralistic society. Because the Court’s opinion is not grounded in law or fact and contravenes the vision of equality embodied in the Fourteenth Amendment, I dissent.”

Over the past three years, a coalition of anti-critical race theory activists, so-called “parents’ rights” groups, and long-time opponents of civil rights precedent have worked the media to normalize the conservative justices’ possible decision to gut the Fourteenth Amendment as the Supreme Court ends its term this week.

By demonizing long-standing efforts to redress systemic racism in education and beyond — whether by fomenting panic around “critical race theory,” racial equity, or “systemic racism” itself, or by campaigning against “wokeness,” “divisive concepts,” and even trainings for “social emotional learning” and diversity policies — this coalition has helped to lay the groundwork in the media to minimize the negative impact of the Supreme Court’s expected split decision to strike down affirmative action in higher education in the name of so-called colorblindness. 

The Students for Fair Admissions Cases

The two cases before the court with the potential to rewrite Fourteenth Amendment law are Students for Fair Admissions, Inc. v. President and Fellows of Harvard College and Students for Fair Admissions, Inc. v. University of North Carolina. The legal strategist behind these cases is Students for Fair Admissions president and long-time anti-civil rights zealot Edward Blum, who has spent decades attacking the legitimacy of race-conscious law and policy in an attempt to roll back decades of civil rights precedent. Thus far, he and similar challengers to civil rights have consistently run into the hard truth that both the text and history of the Fourteenth Amendment make clear that the supposed colorblind constitution does not exist. Now, after years of right-wing media and groups like Blum’s demonizing racial justice, Blum’s cases have finally appeared before a conservative Supreme Court that may be willing to overturn “40 years of a twice reaffirmed precedent.” 

If these challenges are to succeed in the worst case scenario on the ahistorical premise that race-consciousness (and therefore affirmative action) is unconstitutional, it will be one of the most anti-originalist decisions in constitutional history. Race-consciousness lies at the very heart of the Reconstruction amendments drafted in the wake of the Civil War. Worse, the consequences of conservative justices rejecting this intent in ruling race-conscious law and policy impermissible in higher education will likely not be limited to higher education. Rather, it could represent nothing less than the gutting of the Fourteenth Amendment and its corresponding canon of civil rights law. 

With the support of right-wing media, this anti-civil rights coalition will tout this rejection of the Constitution as another win against “wokeness” — folding in discussion of the case with the insistence that race-conscious law and policy is just another “divisive concept.” 

Right-wing media have demonized race-conscious efforts to achieve justice

Right-wing media have been effective and crucial partners in this campaign against race-consciousness. Attacks on critical race theory on Fox News, for example, became prevalent in the second half of 2020 and skyrocketed in the first six months of 2021. With mentions on Fox News doubling each month over a period of 3.5 months in 2021, the cable network managed to reference the theory almost 2,000 times.

This campaign against any acknowledgement of systemic racism, or efforts to ameliorate it, such as through affirmative action, were not limited to Fox News. The right-wing media ecosystem has also spread related attacks on critical race theory, diversity policies, and “wokeism” across Facebook:

• Facebook pages that regularly post about U.S. news and politics posted about these topics nearly 207,000 times between June 1, 2020 and June 20, 2023, earning nearly 331 million total interactions on these posts. 
• Right-leaning Facebook pages posted over 121,000 times, accounting for nearly 59% of these posts. They earned over 256 million total interactions, accounting for over 77% of total interactions. 
• Of the top 10 pages to earn the most total interactions on their posts, nine were right-leaning.

Right-wing media have helped train their audiences to believe that it is consciousness or consideration of race which is itself racism — a complete reversal of civil rights law and history. Such “colorblind” logic has led to countless absurdities, such as the idea that the mere acknowledgement of anti-Black systemic racism can be tantamount to supposed anti-white racism. As part of this relentless attack on race-conscious law and policy, right-wing media have:

• Attacked efforts both by companies and the federal government to be more inclusive, including in hiring practices. For example, right-wing media figures have baselessly claimed that affirmative action is “what the nazis did,” diversity is “an anti-white conspiracy,” equity is “reminiscent of apartheid South Africa,” and inclusive language options are “a mechanism of mind control.”
• Bemoaned that “the culture hates” or is racially biased against white people, decrying multiple instances of diverse representation in movies and television and claiming that “wokeness” is “racism in and of itself,” and is “every bit as racist as white nationalism.” 
• Stoked panic around so-called leftist indoctrination in schools to advance longstanding efforts to “eliminate the Department of Education,” defund public education, and encourage audiences to consider Christian schools instead. Newsmax's Eric Bolling said schoolchildren are being “indoctrinated by actual devil worshippers” to build a “dark army,” and Tucker Carlson claimed that Democrats support “anti-white” school lessons that teach children that racial minorities are “superior” to white people.
• Insisted that Black history after the 1950s (i.e. the Civil Rights Movement) or courses on African American history should not be taught, denounced Black History Month, the Black national anthem, and Juneteenth. Right-wing media have further engaged in ludicrous efforts to rewrite the United States’ ongoing legacy of anti-black racism by mocking and minimizing the destructiveness of slavery and white supremacy. The Daily Wire’s Matt Walsh claimed that “All of us today would be in a worse spot if slavery never existed at all across the entire globe,” in addition to claiming that “white men” are “indispensable to our civilization” and are being “erased.” Mark Levin called critical race theory “anti-white racism,” adding that “Hitler himself would agree with that kind of thinking process.”

So-called “parents’ rights” activists acted in parallel with right-wing media’s attacks on race-conscious law and policy

Right-wing media didn’t act alone. Over the past three years in particular, right-wing media’s messages attacking race-conscious law and policy have been reinforced on the ground, in the statehouses, and in the courts. 

On September 16, 2020, right-wing propagandist Christopher Rufo wrote an article titled “Against Wokeness” for City Journal, the in-house publication of the Manhattan Institute. In the article, the former Heritage Foundation fellow took credit for former President Trump’s 2020 anti-critical race theory executive order (allegedly inspired by a Rufo appearance on Fox News), arguing “The racial narrative that underlies these [critical race theory] initiatives poses a grave threat to the ideal of colorblind justice under the law enshrined in the American constitutional system.”

Less than two months later, on November 12, 2020, a federal court of appeals rejected yet another attempt to enforce “colorblind justice” in a case challenging affirmative action in higher education, because Rufo’s premise is historically and constitutionally wrong. The Fourteenth Amendment was created to fulfill race-conscious goals, not prohibit them. 

Rufo continued his nascent campaign against “critical race theory,” a self-admitted proxy for his increasingly organized campaign against all types of race-conscious law and policy, alongside Christian Nationalism defender and founder of the Center for Renewing America, Russ Vought. In December, 2020, mentions of critical race theory on Fox News began to rise dramatically, beginning a steep climb that would continue over the next four months. Anti-civil rights groups like Moms for Liberty, under the pretense of protecting “parental rights,” began to organize on the local level, intimidating school officials into abandoning not only discussions of supposed “critical race theory,” but any pedagogical reference to America’s history of white supremacy and the persisting effects of systemic racism.

As these groups began targeting local, state, and federal political races, political opportunists and Republican power brokers began leveraging the attack, and in March of 2021, alumni of the Koch networks entered the field with the creation of Parents Defending Education (PDE) — another so-called “parental rights” group, but one that was transparently astroturfed pursuant to the Koch playbook. On the day of its launch, PDE outlined its principles in a Twitter thread clearly reminiscent of Rufo’s escalating rhetoric. Rufo shortly thereafter announced that he was a proud member of its advisory board.

PDE’s opening day messaging also echoed another familiar refrain in its now standard anti-CRT, anti-“wokeism” attacks, charging that “Equity … demands aggressive (and illegal) racial discrimination against Asians and whites.” The reference to Blum’s affirmative action lawsuits was unmistakable and unsurprising given later revelations of his own ties to the group: according to leaked tax documents, Blum was a PDE director. 

Hope for the best, prepare for the worst

Right-wing figures’ consistent and incessant crusade against attempts to ameliorate systemic oppression through race-conscious policy will culminate in their framing the likely overturning of modern civil rights law as yet another victory against the “woke” values of social justice and critical race theory. But this reductionist nonsense will not be enough to hide the ugly truth. The consequences could be profound — barriers to elite universities and colleges would once again be the norm for communities of color, and could quickly jump to other sectors of society as a prohibition on race-conscious policy is applied outside of education.

If and when the conservative justices overturn affirmative action this term, it is the Fourteenth Amendment itself that could be gutted, its original intent rejected in service of a “colorblind” Constitution that does not exist. And in the media coverage, we will learn if right-wing agitators successfully primed us to believe that a radical decision is anything but.