Affirmative Action: The History and Complexities Of A Never Ending Issue
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Last Monday, the Supreme Court of the United States began hearing a lawsuit brought against Harvard University and the University of North Carolina by the anti-affirmative action group Student for Fair Admissions (SFFA). The group contends that affirmative action—practiced by both universities during admissions—violates Title IV of the 1964 Civil Rights Act, whichprohibits institutions that receive federal funds from discriminating “on the grounds of race, color, or national origin.”
Supreme Court judgements change history; time and time again its verdicts have set the United States in a new direction. The infamous Dred Scott ruling of 1857 that protected the rights of slaveholders inflamed sectional tensions and helped drive the country towards civil war. In Brown v. Board of Education (1954) the Supreme Court ruled that segregation in America’s public schools was unconstitutional, triggering a long and unfinished process of desegregation.
If the Supreme Court rules against affirmative action, it would jeopardise positive discrimination programs the length and breadth of the United States. Such a judgement would also send a clear message about American values, and the place of racial diversity in an ever-fragmenting union. With so much at stake, it is worth considering the history of affirmative action in the United States and the political and moral questions that it poses.
Racial issues have defined America since its inception, and the thirteen colonies long before that. Slaveholders sought to explicitly cement slavery into American law through the constitution of 1787, and, although they failed, they did secure a document that was ambiguous in text but “operationally pro-slavery,” according to historian David Waldstreicher. After the Civil War, opportunities were missed to address the racial issue; industrialisation, world wars, and the Great Depression came and passed, yet across the United States, north and south, racial inequities persisted in all aspects of American life.
As battles over civil rights raged in the 1960s, Democrat presidents John F. Kennedy and Lyndon B. Johnson issued executive orders to eliminate discrimination in federal hiring processes and initiate affirmative action to counteract past discrimination. Universities and colleges began to follow suit and by the late 1960s, many elite institutions in the United States were taking positive action to admit more Black students.
During the early 1970s, changes began to occur within the American conservative movement. While white southerners had previously opposed affirmative action on explicitly racial grounds, conservatives began to adopt the language of the civil rights act to push a colorblind ideology. They argued that desegregation and legal equality had pushed the United States into a post-racial era and that affirmative action not only violated the spirit of the civil rights movement, but threatened to engulf America in racial conflict. To discriminate on the basis of race, they argued, was wrong and unacceptable in any and all circumstances.
Where affirmative action did occur, conservative groups supported white Americans in taking their employers to court. In 1979, the Supreme Court narrowly ruled against Brian Weber, a white working-class American who accused his union and employer of discriminating against him in their effort to bring women and black men into the company hierarchy. In 1984, President Reagan’s justice department supported a case brought about by ten white Americans who had been rejected for jobs in the Birmingham Police and Fire Departments during a hiring process that included a hiring quota for African-Americans. They lost. The Supreme Court ruled that affirmative action programs were constitutional where, and only where, there was evidence of intentional discrimination or severe underrepresentation. Yet the tide was turning against desegregation and affirmative action programs. Both Reagan and his successor, George H. W. Bush, used their executive powers to underfund federal bodies enforcing anti-discrimination laws.
For many Americans, colour blindness is both compelling and comforting. It offers the promise of a post-racial world where skin colour is no barrier to attainment. But it is also fatally flawed. History is a thing of the present as much as the past. Societies and the individuals who reside within them are products of their past. The idea that generations of racial injustice, reinforced by ideologies that legitimised oppression, could simply be reversed by anti-discrimination legislation, is nonsensical.
Nearly seventy years after Brown v. Board of Education, Black Americans are more than twice as likely as whites to live in poverty, much more likely to attend underperforming schools, and suffer discrimination when buying a house. On average, they will live five fewer years and are far more likely to die from preventable diseases. Perhaps most potently, an unarmed Black man is 3 times more likely to be shot by the police than a white man.
Colorblind ideology not only ignores systemic racial injustice but reinforces it. By telling ourselves and each other that we live in a society free from racism, we ignore and overlook opportunities to challenge it. We induce the dangerous self-confidence that we ourselves are immune from prejudice, ignoring the reality that as products of a racially unjust world, we too will hold and embody some of that prejudice and intolerance.
The most common argument against affirmative action is made on the grounds of fairness. It holds that prioritising one person over another because of the colour of their skin is wrong in all circumstances without exceptions. It is true that in some cases, affirmative action programs can lead to universities accepting Black and Latino candidates over white or asian peers with higher grades. However, it is important to remember that applicants do not all experience equal opportunities in the first place, so affirmative action could be seen as a corrective to unequal opportunities.
But situating the debate at the individual level perhaps misses the wider issues at stake. Universities are not inert, valueless ladders, upon which students climb to reach the highest and best-paid professions. Whether private or state funded, they exist to serve a public purpose. They facilitate discussion and debate about critical issues, and thus allow students to learn from one another. By broadening the range and scope of perspectives in these debates, universities can better enable students to understand the society they live in and challenge existing orthodoxies and inequities; as a result, students can leave as more rounded citizens, better equipped to use their talents to contribute to the common good.
Yet, the arguments for affirmative action go beyond this. Increasingly, the highest and most influential positions in society are reserved for those who attend university, particularly elite colleges like Harvard. 95% of congressmen and every single senator hold at least a bachelor’s degree compared with a third of the American population at large. Indeed 14 senators and 40 congressmen are alumni of Harvard University. So too, the worlds of business and law are dominated by the highly credentialed.
In short, the most influential positions in American society are increasingly filled by graduates from the country's elite institutions. These individuals will have a greater than proportionate role in shaping the future of the United States. The life experiences of Americans are not uniform: as I explored earlier, Black Americans face inequities beyond the life experiences of most white Americans. In order to address the racial issues that plague the United States, and to ensure that when new challenges emerge the country does not respond in a way that marginalises certain groups, it is imperative that the cultural, ethnic, and social diversity of America’s leaders be widened. With this in mind, universities that seek to ensure their intake is representative of all groups within the nation are performing a public function and contributing to the common good.
Affirmative action does have critics beyond those on the right. Although generally supportive, celebrated African-American sociologist William Julius Wilson has pointed out that Affirmative Action disproportionately benefits more privileged minority students. Wealthier Black students are in a better position to compete for higher-paying jobs, promotions, and university admissions, meaning that they are best placed to take advantage of such programs. Programs that allow for free competition between all members of a certain group will disproportionately benefit those initially endowed with the most social, cultural, economic, and academic resources.
If broadening and diversifying university intakes contributed to the common good, there is also a case for affirmative action programs to increase the representation of poor Americans at top universities. According to a 2017 study, five Ivy League colleges—and 38 colleges overall—admit more students from the 1% of the income scale than the bottom 60%. In particular, poor Black Americans—who are likely to experience racism more acutely than their middle-class class counterparts—are woefully underrepresented.
There is also a case for universities like Harvard re-examining their admissions procedures beyond affirmative action. Although over-represented as a proportion of the overall population at elite universities, Asian-Americans are under-represented relative to the applicant pool. A 2009 Princeton study found that Asian applicants had to achieve far higher SAT scores to have the same chance of admission as whites. Some - for instance Republican lawyer and commentator Dennis Saffran - have explicitly linked this to affirmative action. Yet, while it is true that more Asian students would be admitted if black and latino students were not given preference, Saffran and others misrepresent the issue. Affirmative action itself should not create an anti-asian bias relative to whites. That such a bias exists should be a clarion call for Harvard and other colleges to review their practices that may favour white students - such as legacy admissions - rather than to end affirmative action.
However, there should also be an attempt to ensure university admissions at least somewhat reflect the ethnic composition of the country. As Harvard Law Professor Jeannie Suk Gersen writes: “such lopsided access to gateways of opportunities and power - say, with whites being severely underrepresented at schools like Harvard - has the potential to fuel dangerous resentment and disturb social peace”. Finding a balance that reflects the public interest should be paramount.
The verdict reached by the Supreme Court will be momentous. Positive discrimination alone can never be sufficient to tackle the racial injustice that has plagued the United States since its inception, but it is a necessary measure. If it is found to be unconstitutional in universities, one of the best ways that America can improve the diversity of its leaders will be devastated.