Affirmative Action - Do We Understand What’s At Stake?

At the end of October, the Supreme Court heard arguments – yet again – for and against the constitutionality of affirmative action in higher education.

The plaintiff in the original cases, Students for Fair Admissions (SFFA), alleges that both Harvard and the University of North Carolina (UNC) have “discriminated” on the basis of race in their admissions processes (against white and Asian-American students, specifically).

In Harvard’s case, SFFA argues that Asian-Americans are being discriminated against, because they are (allegedly) less likely to be admitted than similarly qualified white, Black, or Latinx applicants. In the UNC case, they’ve argued that the university violates the 14th Amendment (the “equal protection under the law” amendment passed after the Civil War) by considering race in their admissions process at all.

Justice Ketanji Brown Jackson recused herself from the case, which left six conservative-leaning justices to question the defendants with various criticisms of affirmative action, definitions of diversity, and college admissions processes.

Part of this criticism required attacking the theoretical value of affirmative action. At one point, Justice Clarence Thomas proclaimed: “I don’t have a clue what diversity means.” He asked another lawyer speaking for the defendants: “What academic benefits stem from diversity?” 

Justices Alito, Coney Barrett, and Kavanaugh leveled similar criticisms about the practical benefits of affirmative action policies. In particular, the Court grilled the defense about viable alternatives: why not invest in financial aid and outreach programs to improve educational outcomes for lower income and first-generation students?

The defense quickly countered that outreach and aid programs are insufficient to achieve desirable levels of diversity on campus. The U.S. Solicitor General, Elizabeth Prelogar, argued passionately in defense of affirmative action along with a slew of other lawyers. All of them noted that while affirmative action policies are not theoretically perfect, they are the best solution currently on offer.

The Court will most likely rule in June of next year, before their term ends. The outcome remains unclear for now, but the case has stirred up all kinds of emotions and questions around affirmative action – which has been part of American policy to varying degrees since FDR’s presidency.

Fundamental to this iteration of the debate is the idea that affirmative action is at odds with American ideals of meritocracy. In other words, this is no longer just about the predominance of white, male students and faculty that existed in the middle of the last century, when the Supreme Court first defended an institution’s right to consider race in admissions processes. 

Instead, the debate has evolved between two sides that have fundamentally opposed views about what constitutes a fair and equal meritocracy. One side sees a strict definition of equality as fundamental to the promise of American meritocracy, and another believes that equitable policies are the only way to achieve equality in the first place. (More on that distinction in a second.)

Students and families on the side of strict meritocracy protested this year outside the Supreme Court, insisting that race should not be considered a factor in admissions processes. Their viewpoint is that if colleges were making truly meritocratic decisions, only a student’s qualifications – and in particular, academic performance – would be considered.

(source: NYTimes)

On the other side of the proverbial picket line, however, were students, families, and college reps from all backgrounds defending the benefits and necessity of affirmative action. Their argument is not simply that larger proportions of students of color deserve to be represented in higher education. They argue with equal passion that diverse student bodies, particularly at elite institutions like Harvard, directly contribute to better college experiences for all. Lindsey Batteast, a 24-year-old, Black alumna of Harvard told the New York Times:

“‘People of color bring cultural capital…[W]e bring cultural differences that contribute in innovation and thinking and pushing the needle forward.’”

Students in this ideological camp – which includes students of all races – also argue that race is a critical contextualizing factor of their applications. It is both impractical and unethical not to “consider race” when evaluating their applications, they say, because like every other aspect of a student’s history and identity, race has important implications for who they are, how they think, and what they’ve achieved.

(source: NY Times)

For my part, I know that my family and I would not have had the same opportunities we did without affirmative action. My father certainly benefited early on in his career, when he was admitted to Rutgers’ Law School through an affirmative action initiative. Getting his JD eventually allowed him to become a state judge, after working for a publicly traded utility company as General Counsel for many years.

And when I was at Yale, I saw the extent to which people valued diversity in school. There’s more to attending an intellectually rigorous university than good grades. The cultural and international exchange, the diversity of viewpoints in class, the representation of community interests outside the classroom – these are all factors that made Yale a top-tier experience for me and every other student in my class.

To me, the resistance to affirmative action comes from a fundamental misunderstanding of the difference between equality and equity.

This misunderstanding is wrapped up in – and complicated by – centuries of American ideology. We live in the country of equal opportunity, where class and the advantages (or disadvantages) of birth are never supposed to limit a citizen’s potential for success. American meritocracy is deeply rooted in the narrative of American exceptionalism, which dictates that, unlike Old World European countries, Americans work hard for their own success, money, social position, and personal fulfillment.

While this is a powerful and meaningful ideal in our country, our actual history tells a different story. It is a story of the systematic economic, political, and social disenfranchisement of people of color (as well as immigrants, more generally). These groups were marginalized, attacked, and purposefully barred from enjoying the same access to “equal” opportunity until the 1960s. In our nation’s 250-year-old history, we’ve only considered offering everyone an equal shot seriously for the last 50-odd years.

80% of the country’s history, heritage, and traditions have therefore created unequal conditions for pursuing life, liberty, and personal happiness. Equality is a nice idea, but it seems in practice it has been difficult – even for a country founded on its promise – to implement it in daily life.

As a nation, we need to acknowledge and respect the extent of this history and its legacy in the present. We need to clarify the difference between what equality means in theory and how we actually achieve it in practice.

Critical to that clarification is the concept of equity, which I’ve written about previously. Equitable policies are designed to take real, systemic factors into account – such as poverty, discrimination, cultural background, and other individual/community-level differences. 

When we talk about equitable policies and outcomes, we have to become comfortable with the fact that they are often not inherently “equal”. And that is precisely because they are designed to address practical, historical, and real inequalities.

Chief Justice John Roberts attempted to sidestep the difference between these two ideas when he proclaimed during a 2007 case that “the way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”

This argument echoes the famous Brown v. Board of Education ruling, in which SCOTUS effectively determined that racial classifications had no place in access to educational institutions. (Though, of course, that case was about overturning the principle of restricted access to education on the basis of race, rather than enabling greater racial diversity in educational institutions. The two do not amount to the same thing.)

Justice Roberts’ idea sounds simple enough. But the reality is we can’t undo the devastating effects of racial discrimination by taking race out of the equation. To do so is to attempt to erase, or at best ignore, the history and mechanics of racial discrimination over 400 years of American (and global) history.

Affirmative action was effectively invented by a federal government that understood this. The idea first appeared in the 1930s in an executive order from FDR’s administration, which required federal defense contractors not to discriminate against Black workers. It continued to be an important policy during the war effort, when workers were desperately needed by manufacturers supplying the military.

In the 1960s, the actual term first appeared in another executive policy, this time from John F. Kennedy’s office. Kennedy didn’t elaborate on the term greatly, but the idea was that the federal government – and in turn the private institutions it works with – should take proactive measures to ensure employees and candidates were not discriminated against on the basis of race (not to mention sex, national origin, or religion).

These executive policies trickled down into American institutions over the 1960s and 1970s, and not always in strictly defensible ways. The original 1978 affirmative action case heard by the Supreme Court, Bakke v. Regents of the University of California, determined that the use of quotas for redressing racial imbalances in higher education was unconstitutional. At the same time, however, it maintained that universities had a right to use race as a factor in their admissions processes. The Court ruled that there was nothing unconstitutional about trying to create more diverse student bodies in higher education.

Between 1978 and now, it’s become clear that affirmative action creates tangible opportunities for millions of Americans at work and in school. The representation of women and people of color on campuses has increased drastically. And without affirmative action programs or policies in place, it’s been proven that universities find it difficult to maintain meaningful levels of diversity.

At the same time, since the Supreme Court’s 1978 ruling, affirmative action has suffered a series of branding setbacks. While most of the voting public continues to support affirmative action in some form, it has also been weaponized by both sides of the political spectrum as a defining ideological issue.

This appropriation has inevitably led to various mis-characterizations and a lot of mythmaking around affirmative action, which, at least in the context of higher education, actually affects a relatively small portion of the population.

Chief amongst these is the myth that universities abiding by affirmative action policies regularly admit unqualified students into their student bodies, at the expense of white (or in some cases, Asian-American) candidates. The natural deduction from this myth is that qualified students lose out on opportunities – especially white males. And the overall conclusion is that affirmative action effectively amounts to giving out free lunches to undeserving students from underprivileged backgrounds.

In reality, no data has suggested that affirmative action has led to worse educational or professional outcomes for any other race in the last 50 years – least of all white men. (The biggest threats to white workers are the same as they are for most American jobs: automation, corporate downsizing, overseas/remote outsourcing, and factory relocations.) Affirmative action is still being used as a rallying cry against the excesses of liberal social politics, but there is no evidence that it has had the negative effects so many loud, dissimulating voices say it has.

By the same token, we have to reckon with the reality that affirmative action is an imperfect solution. Educational, employment, and wealth/income outcomes remain highly uneven across racial groups in the United States. Affirmative action in higher education and corporate workplaces is only one imperfect tactic that we’ve used in the past 50 years. It is not the be-all end-all, for either side of the argument.

Let’s hope that SCOTUS agrees, because what’s fundamentally at stake here is an ideological commitment to equity over equality. While we all can acknowledge that these solutions and systems are imperfect, overturning the Court’s decisions in favor of affirmative action will send a message that they are wrong or unfair in legal principle. And while the constitutionality of these policies may seem like a legal puzzle more than a practical concern: it matters. Just as it does for women’s reproductive rights and the right to marry whomever we choose.

Affirmative action takes many forms for many different kinds of people. Our backgrounds and identities are the foundation of our stories, accomplishments and characters. To ignore them is to ignore not only the historical and economic impacts of racial inequality, but people’s fundamental sense of themselves.

Porter Braswell