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“The intensity and duration of the attack on affirmative action is sad confirmation that many Americans remain unwilling to reckon with the barbarity of our racial history.”
One year ago this week, I posted about the United States Supreme Court’s Dobbs’ decision which overturned Roe v. Wade, and here I am again, writing about the Court’s disastrous decision to strike down affirmative action in education by ruling that colleges and universities can no longer take the race of the applicant into consideration when making admission decisions. The decision, which overturns decades of precedent, held that admissions policies that consider the race of the applicant violate the Equal Protection Clause because they “failed to offer measurable objectives to justify the use of race”. I’m hoping this kind of post is not an annual occurrence going forward…
The case before the court was actually a combination of two cases: Fair Admissions v. President and Fellows of Harvard College and Students for Fair Admissions v. University of North Carolina. As you can see, the plaintiffs were different manifestations of the same organization, Students for Fair Admissions (SFFA), which secured individual plaintiffs and pursued both lawsuits.
Students for Fair Admissions has been active for almost 20 years and has filed over 20,000 lawsuits attacking affirmative action. One of their strongest supporters is the long-time affirmative action foe, Justice Clarence Thomas, who, along with the other 5 conservative members of the court, determined that race no longer impacted student performance. The irony here is palpable: Thomas is the second African American to serve on the Supreme Court and he replaced the first — Thurgood Marshall, an attorney and judge who spent his career fighting for rights that Thomas benefited from, but now attacks. Indeed, Thomas is open about the fact that he made it into Yale because of affirmative action! But, as he says in his memoirs, the stigma of preferential treatment made it difficult for him to find a job after college. Poor fellow. I’m sure if he could do it all over, he’d turn down that Yale acceptance that eventually led him to his current lofty position.
Let me do a quick review here. The term affirmative action was first used by John F. Kennedy in 1961 when he stated that we need to take ‘affirmative action’ to ensure that people have access to employment and education regardless of their racial group membership. His ideas and programs were expanded in future administrations (with a big boost from the Civil Rights Act of 1964) but faced immediate and consistent opposition. The notion of racial quotas was struck down in the Bakke case in 1978 and since then, the prevailing notion has been that race can be used as one of many factors, but not the primary factor, in determining who gets into college, in the effort to diversify campuses. And for good reason: studies consistently show that diversity enhances critical thinking, collaboration, creativity, productivity, profitability, and performance.
The main problem with this decision is that it presumes the U.S. has become post-racial, no longer in need of ameliorative programs to redress past injustices. In a 2003 decision upholding affirmative action, Justice Sandra Day O’Connor famously stated, “the Court expects that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today”. Not only was this a ridiculous notion, that the end of hundreds of years of racial inequality was on the near horizon, but the Court decided yesterday that 20 years, not 25, was enough to get the job done.
The six Justices in the majority (3 of whom were appointed by Donald Trump, an impeached president who lost the popular vote TWICE), and many others on the right, endorse ‘color blind’ policies, a euphemism for the principle of race neutrality that in practice serves to defend a racially unequal status quo. Will these ‘color blind’ policies put an end to institutional practices that now favor whites? For example, Harvard admits 40% of applicants who are children of alumni — what color do you reckon most of them are?
Contrary to the notion of color blindness, our racial history and heritage is exactly what’s at the root of this decision. Affirmative action policies have unequivocally opened doors to college classrooms for people of color; the policies work! And they are still needed. But our inability to deal with race in this country continues to sabotage sanative efforts. One step forward, two steps back. Here is an example:
Admission to the University of Michigan, one of the top public universities in the country, is extremely competitive. Like most schools, the university uses a point scale to determine admission, broken down as follows:
For academics, up to 110 points are possible:
-applicants are scored on grades, standardized test scores, academic rigor of their high school, difficulty of the curriculum, etc.
For especially desired qualities, 40 points are possible, broken down this way:
-Geographical distribution (Michigan residents are given more points, and even more if the student is from an underrepresented Michigan county)
-Legacy (being a direct relative of someone who attended Michigan)
-Quality of their submitted essay
-Leadership and service
-coming from a socioeconomically disadvantaged family
-being an underrepresented racial or ethnic minority
-men declaring nursing as a major (after all, men need more help!?)
-being a scholarship athlete; or
-at the provost’s discretion (usually the child of large financial donor/politician)
This is just one school, and not one specifically involved in the Supreme Court case at hand, but it represents a very common process used at almost all universities in the U.S. As you see, candidates are given points for all sorts of things outside their control or merits — where their parents sent them to high school, what part of the country or state they live in, whether or not their parents went to Michigan (and if they did, they are significantly more likely to be white), whether their family is advantaged or disadvantaged, their race, and whether their parents rub elbows with the provost (the provost is typically the highest academic officer at an institution of higher learning). How many of these factors have been the basis for SFFA lawsuits? One. Race.
Next. In the arguments before the court, the SSFA argued that the University of North Carolina and Harvard policies violated Title VI of the 1964 Civil Rights Act that prohibits schools receiving federal funds from discriminating based on race. Chief Justice John Roberts agreed, holding that “eliminating racial discrimination means eliminating all of it”— similar to his equally glib comment in 2007 that “the way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”
There are at least 2 problems I see with this. First is the implication that all discrimination is the same, of equal moral justification. To equate affirmative action attempts to increase the life chances of historically disadvantaged peoples with restaurant owners who refused to serve people of color in the South, for example is both lazy and pernicious.
The second issue is that discrimination is defined as the arbitrary unequal treatment of various categories of people and affirmative action policies are not arbitrary. We treat people unequally all the time in this society, but that doesn’t make it discrimination. If there is an accepted reason to treat people differently, then it’s not discriminatory.
For example, is it discriminatory that able-bodied people can’t park up front at Target since they don’t have a handicapped tag? Or for 16-year-olds to be able to drive a vehicle by themselves, but not 15-year-olds? Or 21-year-olds being able to drink alcohol, but not 20-year-olds? The last two seem kind of arbitrary to me, but there is probably some research out there to suggest the physiological and mental development of people at different ages impacts their abilities to do or not do certain things, so we do not consider this kind of differential treatment discriminatory.
On the contrary, affirmative action programs intend to address legitimate differences, not arbitrary ones. The majority (if not all) of the extant social science data shows that most racial minority groups lag behind whites in education, employment, income and wealth. Affirmative action programs are therefore trying to close a significant, legitimate gap, and by definition are not violational of the 1964 Civil Rights Act.
Let me close with an analogy I use with my students when we discuss the topic- the Runner Analogy. Imagine 2 runners starting a race; Runner A has weights on their feet and Runner B is unbound. The race begins, and, predictably, Runner B gets far head. At some point, race officials realize the inequality and remove the weights from Runner A. The race resumes. Down the road a bit, Runner B is still well ahead. When you look at each runner in isolation, there is no reason why Runner A is so far behind. Maybe they just aren’t trying hard enough? Maybe they should learn English better and pull up their pants? Maybe Runner B is simply superior?
So the goal of affirmative action is to rectify the period when Runner B pulled so far ahead of Runner A, who is behind in the race through no fault of their own. If you believe people of color have achieved racial equality in the U.S., then you see Runner B being pulled back, instead of Runner A being pushed forward. And… you ignore history.