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Affirmative Action

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Affirmative action was introduced in the United States at a time when racial justice was, quite literally, a black and white issue.

The Fourteenth Amendment of the U.S. Constitution clearly prohibits discrimination based on the color of someone’s skin: “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

But in the early 1960’s, America had a major problem. Because black Americans had been enslaved and then excluded from government protections for decades, severe inequality was massive between the white and black communities.... to the point that the racial imbalance in colleges and universities was impossible to rectify without outside intervention.​

The term “affirmative action” first appeared in 1961, when President John F. Kennedy signed Executive Order 10925 that said, in part, “the contractor will not discriminate against any employee or applicant for employment because of race, creed, color, or national origin.” The contractor will take “affirmative action” to ensure that “employees are treated during employment, without regard to their race, creed, color, or national origin.”

This was followed by Executive Order 11246, signed by President Lyndon B. Johnson in 1965, which “prohibited discrimination in employment because of race, creed, color, or national origin, and to promote the full realization of equal employment opportunity through a positive, continuing program in each (federal) executive department and agency.”

President Johnson confirmed that affirmative action was conceived as a vehicle to right generational wrongs in 1965 when he said:

The beginning is freedom; and the barriers to that freedom are tumbling down. Freedom is the right to share, share fully and equally, in American society… to vote, to hold a job, to enter a public place, to go to school. It is the right to be treated in every part of our national life as a person equal in dignity and promise to all others.

   But freedom is not enough. You do not wipe away the scars of centuries by saying: Now you are free to go where you want, and do as you desire, and choose the leaders you please. You do not take a person who, for years, has been hobbled by chains and liberate him, bring him up to the starting line of a race and then say, ‘you are free to compete with all the others,’ and still justly believe that you have been completely fair.

   Thus, it is not enough just to open the gates of opportunity. All our citizens must have the ability to walk through those gates.

Thirteen years later, the first affirmative action case was heard by the United States Supreme Court. In Regents of the University of California v. Bakke (1978), the Court ruled that, although racial quotas supported by government entities violate the Civil Rights Act of 1964, the use of race was acceptable as one of many admission criteria.

 

Twenty-five years later, in the 2003 case of Grutter v. Bollinger, the U.S. Supreme Court upheld the affirmative action admissions policy of the University of Michigan Law School. At the time, the school used race as a factor in the admissions process because they believed race served as a “compelling interest in achieving diversity among its student body” (the petitioner was a white student who was denied admission to the school).  

 

The highest Court decided that “in the context of its individualized inquiry into the possible diversity contributions of all applicants, the Law School’s race-conscious admissions program does not unduly harm non-minority applicants.”  The Court found that, because the school looked at many other factors regarding each applicant, their admissions process did not violate the Court’s decision in Regents of the University of California v. Bakke

 

​In Gratz v. Bollinger, which was decided the same day and involved the same university, the Court ruled that the point system used by the university to determine admissions did not meet the standards of strict scrutiny (in this case, minority students automatically received 20 points in a 100-point system).

 

Although the Supreme Court validated affirmative action in Grutter v. Bollinger, Justice Sandra Day O’Connor also expressed that “race-conscious admissions policies must be limited in time.” Writing for the Court, Justice O’Connor pointed out that twenty-five years had passed since Regents of the University of California v. Bakke and that “we expect that twenty-five years from now, the use of racial preferences will no longer be necessary” – effectively setting a timeframe for the policy’s end (which would be 2028). Throughout the years, many Supreme Court Justices acknowledged this as a valid sunset provision.

 

After Grutter v. Bollinger, the Supreme Court started to shift. In 2007, the Court ruled on two cases – Meredith v. Jefferson County Board of Education and Parents Involved in Community Schools v. Seattle School District No. 1.  The Court decided that public school systems can’t seek to maintain integration through measures that consider a student’s race. This is the case where Chief Justice John Roberts famously said, “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”

 

Six years later, in the case of Fisher v. University of Texas, the Court found that the Equal Protection Clause of the Fourteenth Amendment does allow for the consideration of race in undergraduate admissions decisions, but that admission policies must be “precisely tailored to serve a compelling governmental interest.” If a school fails to meet this standard, race may not be used as a factor for admission.

 

Then came the biggie. In October 2022, the Supreme Court heard arguments in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College. In this case, a group of Asian American students claimed that, to make room for less qualified students of other races, Harvard discriminated against them by placing an admissions cap on the number of qualified Asian Americans granted admission to the school (in other words, the students alleged that Harvard favored black and Hispanic applicants at the expense of Asian Americans, who, themselves, are also a minority group).  

 

The internal data Harvard was forced to reveal seemed to confirm the accusation. While Asian Americans ranked higher than white applicants in Harvard’s admission model – in both academics and the quality of their extracurricular activities – the admission rates for these students were much lower. In fact, if academics had been the only factor in admissions, Asian Americans would have constituted 43 percent of any given Harvard entering class. However, when other factors like personal qualities and demographics were included in the decision-making process, only 19 percent were admitted.

 

The Economist reported it this way: “Peter Arcidiacono, an economist at Duke University employed by the plaintiffs, built a statistical model of the effect of race on admissions. He estimated that a male, non-poor Asian American applicant with the qualifications to have a 25 percent chance of admission to Harvard would have a 36 percent chance if he were white. If he were Hispanic, that would be 77 percent; if black, it would rise to 95 percent. Damningly for Harvard, an internal report by their own research arm, obtained during discovery, reached the same conclusions.”

 

The Economist also pointed out that the situation was made more complicated by Harvard’s propensity to admit “legacies” (i.e., relatives of former students), a process that also skewed its system: “Roughly 34 percent of legacy applicants were admitted – more than five times the rate of non-legacy applicants. This is tantamount to affirmative action for well-off white students. According to a survey of freshmen conducted by the Harvard Crimson, the college newspaper, 88 percent of legacy students come from families making more than $125,000 a year.”

 

On June 29, 2023, the U.S. Supreme Court – in a 6-3 decision – found it unconstitutional to consider race in university admissions (note: the Court made exceptions for military service academies due to the “potentially distinct interests that military academies may present”).

 

In the Supreme Court decision, Chief Justice John Roberts made clear that admission offices could still consider “an applicant’s discussion of how race affected his or her life, be it through discrimination, inspiration, or otherwise.” The only change, Roberts said, was that “the student must be treated based on his or her experiences as an individual – not on the basis of race.”

 

In his testimony as an expert witness in the case, Richard Kahlenberg – now the Director of the American Identity Project and Director of Housing at the Progressive Policy Institute, and a professorial lecturer at George Washington University’s Trachtenberg School of Public Policy and Public Administration – said that “being economically disadvantaged in America poses seven times as large an obstacle to high student achievement as does race.”

 

This is an incredibly important insight, especially given the fact that, at the time, 71 percent of the black and Latino students who attended Harvard were from wealthy backgrounds.

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