Last month the Supreme Court released its decision on the two Affirmative Action cases brought against Harvard University and the University of NC by the organization Students For Fair Admissions challenging the colleges’ use of race-conscious admissions. As we all know by now, the court ruled in favor of SFFA and ended the use of race as a factor in selecting and admitting students by determining that such polices were unconstitutional.
This case and the history surrounding affirmative action is immensely complex – mirroring the long history of race in America – and brings up a lot of questions about who we are as a country and what we do and do not value. So I’m going to do you (and me) a favor and break this down into three parts over three weeks.
Harvard began its use of considering race as a factor to admitting students in 1970. UNC likely began race-conscious admissions in the mid-60’s and from the beginning the practice has been controversial. Considering a student’s minority race - primarily Black - was seen as one way to make the American dream that always included a good education and had long eluded most Black Americans, become a reality…a way to close the racial divide and make America the country where the promise that all men (people) were created, treated, and protected equally a reality and not just an ad slogan.
The 1960’s and early 70’s, coming on the heels of tremendous social justice upheavals - the Civil Rights Era; the Civil Rights act; the war in Vietnam; Kent State; Watergate; the resignation in disgrace and under indictment for tax evasion of a Spiro Agnew, Vice President of the United States; the resignation in disgrace and under impeachment of Richard Nixon, president of the United States; and massive and deadly race riots across the country was a time of deep questioning and reckoning of who America was and who we wanted to be. Thus…the consideration of giving Black and Brown people a hand.
But not everybody was on board. In a country that so profoundly and insistently drives the story of meritocracy, there are those who insist that, “I came up the hard way and nobody gave me a helping hand. If I can make it, anybody can make it. Nobody has ever had it harder than I had it.” So deep is our origin story of the land where every person is equal with an equal chance at the brass ring that Brett Kavanaugh brought himself to tears exclaiming how he’d gotten into Yale Law School based totally on his own hard work and merits. He neglected to mention that he was granted points as a legacy student and it may not even have occurred to him – because it was the only world he knew - that with two parents who were successful attorneys, one a judge, and living and going to school in Bethesda MD, a community in which the median annual household income approaches a quarter of a million dollars, might have given him an advantage he personally never earned over others. It’s a safe bet that he didn’t have to rush from class to Pizza Hut where he worked to put himself through school.
A few years ago a friend of mine was saying that for fish - who spend their entire lives in the water - it would never occur to them to look up on the banks of the water at the people and animals on shore and even wonder if they had gills. Gills were just a given. Fish enjoy the privilege of living the only way of life that they could imagine. So it is with the Brett Kavanaughs of the world.
And of course, there are racists. So in the years between when colleges started to give a few points of consideration to Black and Brown applicants and last month when the court ruled that any consideration of race in admissions was unconstitutional, the issue and constitutionality of what President Kennedy coined ‘Affirmative Action’ came before the court 5 times. In some cases students were forced to be admitted to the school they were suing. And the court tweaked Affirmative Action here and there. But in the eyes of the court, the practice itself remained constitutional.
In some cases, the chief complaint seemed to be that only Black students had received extra consideration. Consider the case of Jennifer Gratz who sued the University of Michigan and who’s case came before the court in 2003. Jennifer found it unfair that 85 Black students with test scores lower than hers were assigned 20 points on a 120-point scale and thus admitted to the school over her. So on that basis, she sued. But she ignored a lot. She ignored the 10 points given to students who attended a top, i.e. white, high school. She ignored the 8 points given if the student took Advance Placement classes, which are 3 times more available in schools serving White kids than in schools serving Black or Brown kids. She wasn’t concerned about the 6 points given if the student was from the all-white Upper Peninsula nor the 4 points given to legacy students.
The first challenge came in 1978 when Allan Bakke sued the University of CA at Davis. Bakke was in his 30s when he applied to the medical school. Rejected twice, Bakke sued. He said the school’s decision to set aside 16 seats for minority students in a class of 100 discriminated against him as a White man. The Supreme Court agreed and ordered him admitted. But the court allowed the use of race as a factor in admission so long as it was just one part of an overall evaluation of an applicant.
But in the same case the court also decreed that the justification for race-based recognition and enrollment was not to right past injustices against an entire race of Americans, but that the students would receive a better, more rounded education in a diverse environment than a nondiverse environment. Thus the entire reason behind the drive to accept more Black and Brown students was upended and replaced with a drive for a better learning environment. Apparently Affirmative Action had no value unless it provided something that improved the lives of White students. Already the tides were turning.
In his book Why We Can't Wait, Doctor Martin Luther King wrote: "Whenever the issue of compensatory treatment for the Negro is raised, some of our friends recoil in horror. The Negro should be granted equality, they agree; but he should ask for nothing more. A society that has done something special against the Negro for hundreds of years must now do something special for the Negro."
Doctor King never publicly used the phrase “Affirmative Action”, but clearly he was a supporter of a helping hand. In 1965 the writer Alex Haley interviewed King for an interview that ran in Playboy Magazine. Haley asks him about an employment program to help "20,000,000 Negroes." After expressing his approval for it, King estimates that such a program would cost $50 billion. So Haley then asks: "Do you feel it's fair to request a multibillion-dollar program of preferential treatment for the Negro, or for any other minority group?"
King replied, “I do indeed. Can any fair-minded person deny that the Negro has been deprived? Few people reflect that for two centuries the Negro was enslaved, and robbed of any wages--potential accrued wealth which would have been the legacy of his descendants. All of America's wealth today could not adequately compensate its Negroes for his centuries of exploitation and humiliation. It is an economic fact that a program such as I propose would certainly cost far less than any computation of two centuries of unpaid wages plus accumulated interest. In any case, I do not intend that this program of economic aid should apply only to the Negro; it should benefit the disadvantaged of all races.” Haley then asks him about possible resentment from White people, and Doctor King replies, “The poor White man ought to be made to realize that he is in the very same boat with the Negro....Together, they could form a grand alliance."
And right there is where the concept of Affirmative Action begins to get complex.
Since the Bacon Rebellion in 1676 when poor Whites together with Black indentured servants banded together to fight the oppression of the White elite, the White population has been concerned about a “grand alliance.” When the killing was over, the land-owning White colonist responded with a plan that insured that poor Blacks and poor Whites would fight each other and not the land owners. In 1705 VA passed a statute that required masters to give indentured servants 50 acres of land, 30 schillings, 10 bushels of corn, and a musket and locked in a brutal system of white supremacy giving owners of enslaved people absolute rights of control and torture. In addition the new codes made it illegal for Black people to be armed or employ White people. Thus was implemented a policy where one group received government benefits based solely on the color of their skin to the exclusion of all other groups. Affirmative Action had arrived in the colonies and it’s been a complex issue of contention ever since.
The 6 justices that decided that modern day affirmative action is not constitutional are not likely mean or unpleasant people. I’d probably enjoy a beer with Brett Kavanaugh or fly-fishing with Neil Gorsuch. They’re not racist in the mean, violent sense that we envision racist to be. What they are, with the exception of Clarence Thomas, is they’re encumbered and disadvantaged by being White in a multi-racial country where White is so much the norm that it never occurs to them that not everybody has gills. They cannot imagine that a country that works so well for them - their family, their friends, their colleagues, their co-parishioners, their fraternity brothers and sisters, for every person they know just as our founding documents stated - does not work the same for everybody. They believe that in America, as Justice Roberts wrote and read in the Shelby v Holder decision that defanged the Voting Rights Act, “Things have changed dramatically” because in his eyes we’re always marching towards a “more perfect union.”
Only a White person could believe that and not know that just beneath the surface, things haven’t changed much at all. The very same day that the Chief Justice uttered those words, two states, Texas and North Carolina moved to enact voter restrictions that a federal court would later strike down in North Carolina as having been written and designed to target African Americans “with almost surgical precision”. And just a little later twenty-four more states - including 10 that previously needed federal approval - passed their own version of restrictive voting laws proving that things have indeed not changed dramatically.
We portray that we are an honorable country always marching towards good. When I was in school, American history was taught as a series of triumphs over wrongs that belonged to the past. Slavery was evil, but the Civil War ended it; then the civil-rights movement ended segregation. There was no atoning for the near elimination of Native Americans, but somehow it didn’t invalidate the story of progress. Abroad, the U.S. led the cause of freedom against fascism and communism. Japanese internment, McCarthyism, and Vietnam were mistakes but they didn’t erase the larger picture of our greatness. That’s a pretty optimistic narrative. It’s the White narrative and it’s the only one that the conservative justices really can see. It’s this myopic view that Justice Sotomayor was referring to when she commented on the positive effect of having her, a “wise Latina” on the bench – a thought so alien and frightening that she was roundly and immediately excoriated as being a racist.
Adding to the confusion of all this – and continuing to promote racial unfairness - is the conservative straw-man argument of ‘originalism’, an approach that seeks to interpret the Constitution as it was understood at the time it was adopted. In that view the so-called civil rights amendments – the 13th amendment that abolished slavery; the 14th that granted citizenship to any person born on U.S soil as well as conferred equal legal protection for all; and the 15th amendment that conveyed the right to vote to all male citizens were all race neutral.
Clearly at the time these amendments were adopted in the aftermath of the Civil War, they were aimed squarely and mostly exclusively at formerly enslaved Black people. And when Doctor King, who is usually invoked in these arguments, looked forward to the day his children would be judged by the content of their character not the color of their skin, can any reasonable person deny that he was envisioning a day without racism, a day when Black people would be treated the same as White people?
Could anyone, in the aftermath of the Civil War that led to the end of enslavement of human beings ever have envisioned a poll in 2016 that found that 56% of White people believe that discrimination against White people was as big a problem as discrimination against Black people. 45% of MAGA republicans believe they face a lot of discrimination while only half as many felt that Black or Brown people face a lot of discrimination.
During an Alabama voting rights case, in order to counter conservative suggestions that the Constitution is meant to be race-neutral, and thus doesn’t offer special protections for Black voters, Judge Jackson made the case that the historical context of the 14th Amendment to protect formerly enslaved Black people was explicitly race conscious, not race neutral.
Her remarks aligned with originalism but turned it on its head. “I don’t think that the historical record establishes that the founders believed that race neutrality or race blindness was required.”…“I understood that we looked at the history and traditions of the Constitution and what the framers and founders thought about. When I drilled down to that level of analysis it became clear to me that the framers themselves adopted the equal protection clause in the 14th Amendment, the 14th amendment itself, and the 15th Amendment in a race-conscious way.”
She could have gone even further: When President Andrew Johnson vetoed the 1866 civil rights bill on the explicit grounds that it was not race neutral Congress repassed it over his veto and then based the Fourteenth Amendment on it.
Anyway, all this to say that the original framers of the constitution, and especially of the civil rights amendments crafted specifically to protect Black Americans clearly did not aspire to race neutrality – a false concept that the conservative majority on the court used to end race-based admission consideration.
The court also wrestled with the complex and difficult concept of who has minority status. Justice Alioto got directly to the point in quizzing counsel. “So let’s say the student has one grandparent who falls within that (protected) class. Can the student claim to be a member of an underrepresented minority? When the attorney hemmed and hawed Alioto asked, “One great grandparent? How about one great-great grandparent?”
Until a few years ago, Robert Taylor, a business owner in Washington state, identified as White. Then he realized that his insurance business could benefit if it were classified as a minority enterprise. A DNA test purported to show him 4 percent sub-Saharan African. Lots of litigation later, a federal court said the state nevertheless could deny his minority status. But elsewhere, Steve Lynn had better luck in the racial lottery. His business qualified as a minority business enterprise because his ancestors were Sephardic Jews who fled Spain centuries ago, making him, in the government’s eye, Hispanic.
Our government decrees that immigrants from India are Asians but their Asian cousins from Afghanistan are White. The geographic classification “Asian” assumes that Vietnamese and Pakistanis are somehow akin. The plaintiff, Students For Fair Admissions claimed that Affirmative Action discriminated against Asians and Whites. So Indian Asians would be discriminated against because they’re Asian while Afghanistan Asians would be discriminated against because they’re White all the while Steve Lynn is getting government contracts because his Sephardic Jewish ancestors passed through the Iberian Peninsula? How does a college – or anybody for that matter - go about making sense of any of that?
In 1970, when only 5 percent of Americans were Hispanics, they were generally considered White. Today, however, minority status is coveted because it is potentially a lucrative key to unlocking government largesse. So, European Hispanics from the Iberian Peninsula, alone among European national or ethnic groups, are a government-preferred minority.
And Cupid has added to the confusion. According to David Bernstein in his book, Classified: The Untold Story Of Racial Classifications In America “As of 2017, 46 percent of Asian and 39 percent of Hispanic American newlyweds born in the United States married a spouse from a different category.” So their offspring are…what…mongrels? As we peel away the layers of Affirmative Action, it’s harder and harder to figure out what’s fair. And fairness should be the doctrine upon which all this is based. It’s what affirmative action was originally intended to engender.
And then there’s the issue of how much does any of this even matter? For most college students, the ruling will have limited direct impact. Few colleges outside of elite institutions have affirmative action policies; they accept a majority of applications. But the overall makeup of the higher education landscape understates the effects of the ruling. Elite colleges have a disproportionate impact on American society. Consider that eight of the nine justices who voted on last month’s ruling went to Ivy League schools. The other, Amy Coney Barrett, attended Notre Dame which while not Ivy League, is certainly an elite school. Two justices, Sotomayor and Thomas, have said that they benefited from affirmative action. Thomas has since changed his mind saying that affirmative action was the worst thing that ever happened to him because according to him, none of the big, lucrative, get-rich firms he longed to become a part of took his degree and accomplishments seriously, assuming that he’d been a mere Affirmative Action candidate.
Even with affirmative action in place, most Black and Brown students did not go to elite colleges, and last month’s ruling does nothing to change that. In fact, the majority of Black and Hispanic students attend universities that accept more than three-quarters of their applicants. Asian students, whom SFFA claims are the victims of Affirmative Action on average are much more likely to attend elite universities. The proportion of all Asian students who attend a school with an acceptance rate under 25 percent is more than three times that of Black, Hispanic and White students.
“Our country has never been colorblind” said Judge Jackson in her dissenting opinion. “Deeming race irrelevant in law does not make it so in life.”
So…did the courts reach the right decision? “On one level, a Supreme Court decision ending racial preferences presents a crisis.” Richard Kahlenberg wrote for The Liberal Patriot. “Simply ending racial programs without coming up with something new would devastate Black and Hispanic constituencies and be terrible for the country. But Democrats also will have been handed an opportunity to create something better — an affirmative action policy that reminds working people of what they have in common, not what divides them.”