Sam Podnar

16 December 2022

In 1978, the Supreme Court took on Regents of the University of California v. Bakke, a case judging the constitutionality of an affirmative action program at the University of California Davis School of Medicine. Allan Bakke, a white man, sued the school after being rejected in a challenge to their admissions system that reserved 16 out of 100 spots for minority candidates.[i]

The Court found itself evenly split on whether Bakke had been discriminated against, with Justice Lewis Powell, a Nixon appointee, as the swing vote. So he tasked one of his clerks, Robert Comfort, with finding a justification for his position, and landed on one from Harvard that caught his attention. The brief argued for “educational diversity,” justifying the consideration of race in admissions as a mechanism to shape a student body with individuals of various backgrounds and talents, which would ostensibly enhance the educational experience for all students.[ii]

It was this decision by one clerk decades ago that redefined the debate over affirmative action and that continues to shape our discussions today. But the diversity justification that has framed every major case related to affirmative action has not always been utilized to defend or even discuss the topic. As a concept, affirmative action originated to justify fairer employment practices.[iii] It was eventually leveraged to remedy past injustices committed against America’s Black community, propelling them to success in institutions from which they had long been excluded. To act affirmatively was to make a conscious effort to reverse the status quo—a status quo that disadvantaged Black Americans.

On October 31^st of this year, the Supreme Court heard oral arguments in two cases involving lawsuits by Students for Fair Admissions (S.F.F.A.) against Harvard College and the University of North Carolina at Chapel Hill. The justices and litigants frequently repeated the word “diversity,” discussing the value of a diverse student body and the legality of using race to create it.[iv] But this word, and this broader framing justifying affirmative action, has muddied the original—and arguably, more valuable—function of the concept. Affirmative action is best viewed and defended as a mechanism to promote upwards social mobility for groups that have historically been discriminated against, righting past wrongs that unfairly held Black, and now Latino and Native American, individuals back.

Those alleging that affirmative action wrongly benefits certain minority groups fail to see how starkly inequitable our current system of higher education is and how little progress we have made in remedying that inequity. In 1968, Black Americans were just over half as likely as white Americans to have a college degree. More than 50 years later, that figure remains essentially unchanged (56 percent in 1968 and 54.2 percent today).[v] The percentage of Black students at nearly 60 percent of the “101 most selective public colleges and universities” has fallen since 2000.[vi]

Even with affirmative action, which critics claim has unfairly benefited Black and Latino students at the expense of Asian students, Asian Americans make up a percentage of students at selective colleges that is much higher than their share of the U.S. population, while Black and Latino students are underrepresented.[vii] Harvard’s undergraduate population in 2020 was 21.4 percent Asian, 10.9 percent Hispanic or Latino, and 8.9 percent Black.[viii] With Asian Americans making up just 5.9 percent of the country, Latino Americans 18.5 percent, and Black Americans 13.4 percent, Asian students are afforded nearly four times their share of spots, while Latino and Black students are filling just about half.[ix]

Enrollment in the 468 best-funded and most selective four-year colleges is 75 percent white, while in the 3,250 lowest-funded community and four-year colleges it is 43 percent Black and Hispanic.[x] A 2018 report by the Government Accountability Office found that Black colleges generally had endowments half the size of those at comparable white colleges.[xi]

An elimination of race-based affirmative action in higher education—a very likely possibility, considering the current ideological composition of the Supreme Court—would significantly worsen the position of Black and other underrepresented minority students at elite colleges. California and Michigan have passed legislation banning the consideration of race in college admissions, which has devastated enrollment for disadvantaged groups at each state’s flagship institutions. Black enrollment at the University of Michigan fell nearly 10 percent in the few years immediately following the state’s ban; at the University of California, Berkeley, it dropped from 6.7 to 3.7 percent in the two years following the elimination of affirmative action.[xii]

During oral arguments, S.F.F.A.’s legal team estimated that banning affirmative action at Harvard would cut enrollment for Black students from 14 to 10 percent.[xiii] An expert testifying for Harvard put the ultimate percentage of Black students at as little as six percent.[xiv]

Following the assassination of Martin Luther King, Jr. in 1968 and ensuing student strikes and urban uprisings, competitive colleges doubled down on efforts to increase Black enrollment. During the 1969 admissions cycle, Black enrollment at Ivy League universities and other equivalent institutions increased drastically, in some cases more than doubling from the year prior. One member of Columbia’s class of 1973, who arrived on campus with the wave of increased Black enrollment in 1969, was Eric H. Holder Jr., who would later become the first Black attorney general of the United States.[xv] He was also the defendant on behalf of the country in the watershed case Shelby County v. Holder, which defanged two sections of the Voting Rights Act that mandated federal oversight for changes to voting laws in states with a history of racist voter discrimination.[xvi]

When Holder was a student at Columbia, an individual on the opposing—and ultimately victorious—side of Shelby County, Edward Blum, was studying at the University of Texas; the two men graduated from their respective institutions in the same year. Blum, a non-lawyer, would go on to run for Congress in Houston in 1992. After he lost, he brought a lawsuit to the Supreme Court arguing that the district was gerrymandered to benefit minority candidates, ultimately winning the case in 1996. After filing similar suits across the country, he zeroed in on Shelby County, Alabama, which had recently come under scrutiny by the Justice Department for discrimination in its voting laws. He contacted the locality’s county attorney and went on to orchestrate a victory that has been arguably one of the country’s most major setbacks for the voting rights of non-white Americans; many former slaves states, much freer from federal intervention, rushed to limit access to the ballot after the Shelby decision. Blum would later take on affirmative action at his alma mater, ultimately losing. He is now the head of S.F.F.A., the organization suing Harvard and UNC-Chapel Hill.[xvii]

The fight to limit federal oversight standing in the way of racist voting restrictions and the campaign to end race-based affirmative action in college admissions have more in common than two men poised on opposite sides of history. Both battles come down to a refusal to acknowledge that racism, specifically anti-Black racism, remains a persistent problem in the United States—and further, a persistent problem that we should be actively working to remedy.

In the 1978 case involving Allan Bakke, Justice Thurgood Marshall disagreed with the portion of the majority’s decision finding U.C. Davis’s quota-based affirmative action program unconstitutional. He balked at the diversity justification and argued that institutions had a responsibility to rectify an American tradition of racist discrimination.

“For it must be remembered that, during most of the past 200 years, the Constitution as interpreted by this Court did not prohibit the most ingenious and pervasive forms of discrimination against the Negro,” he wrote. “Now, when a state acts to remedy the effects of that legacy of discrimination, I cannot believe that this same Constitution stands as a barrier.”[xviii]

In Marshall’s words, a failure to take measures to uplift Black Americans would “ensure that America will forever remain a divided society.”[xix]

Since Bakke, we have lost sight of the main and most valuable purpose of affirmative action. The societal function of college is to promote upwards social mobility—to give graduates a pathway to a stable and financially viable way of life. We should frame and build affirmative action as a mechanism that advances that purpose.

During the S.F.F.A. cases’ oral arguments, Justice Ketanji Brown Jackson expressed bewilderment that in a process so heavily emphasizing students’ expression of various aspects of their identities, race would be the one factor eliminated from consideration. She posed a hypothetical: In a world banning affirmative action in college admissions, a white student writing about their family’s North Carolinian heritage and their own desire to continue their family’s legacy by attending UNC would have their identity recognized, but a Black student whose ancestors were enslaved and thus barred from attending the university would be unable to fully express their story.[xx]

“Some students [have] historically been denied access to some of the nation’s most well-resourced institutions of higher education…because of their race,” writes Adam Harris for The Atlantic. “If SFFA wins, that fact will be one of the only things a university cannot consider in its admissions process, as though that history never happened—as though the system is fair enough already.”[xxi]

Advantages for wealthy, white applicants abound in college admissions. 43 percent of white students at Harvard are athletes, legacies, or related to donors or staff, while that figure stands at just 16 percent for Black, Latino, and Asian American students. The study uncovering that data also estimated that 75 percent of white students in those categories favored in admissions would have been rejected had they not possessed those respective advantages.[xxii]

An affirmative action program at the University of Michigan, which used a point system to determine admission for applicants and automatically awarded 20 points to Black, Latino, Native American, and low-income applicants, was ruled unconstitutional in 2003.[xxiii] But the university also awarded students 10 points for attending elite high schools, eight for taking a certain number of AP classes, and four for being legacies—all characteristics more likely to be possessed by white students.[xxiv] Those advantages stayed intact, while the single boost given to groups disadvantaged in every conceivable way was eliminated.

Even the diversity argument in favor of affirmative caters towards the needs of already-advantaged groups. According to this reasoning, enrollment of underrepresented minority students ultimately exists to enhance the educational experience of their white peers.[xxv]

Marvin Krislov served as the general counsel for the University of Michigan who argued on the school’s behalf on two affirmative action cases that went to the Supreme Court. As he prepared to argue those cases, he talked to students at schools across the state. He recalls going to one majority-white, largely upper middle-class school, explaining to them the history of racist discrimination and why affirmative action had been implemented to remedy it.[xxvi]

Ultimately, he failed to get through to them: “I remember some very bright young people who, at the end of the day, were most concerned about what it meant for them.”[xxvii]

The obsession with acceptance to elite schools has consumed discussions of reform in higher education, but the impact of affirmative action in college admissions remains narrow. Only four percent of college students attend the type of extremely competitive schools that use affirmative action. Ivy League schools house 60,000 undergraduates; the California State school system alone has over 400,000 students.[xxviii] Media attention and fervor surrounding the topic in certain communities has artificially inflated its actual significance.

But this narrow focus could have extremely broad consequences. The S.F.F.A. cases regarding Harvard deal with Title VI of the Civil Rights Act, which bans discrimination in programs and activities receiving federal money. A reading of the Constitution that takes issue with affirmative action by reason of this clause could have devastating implications for racial remediation in areas like housing, employment, and voting laws.[xxix]

“The way to stop discrimination on the basis of race is to stop discriminating on the basis of race,” Chief Justice John Roberts famously wrote in a 2007 case surrounding a race-based affirmative action program in a Seattle school district. 30 years prior, Justice Harry Blackmun wrote in his concurrence in Bakke, “In order to get beyond racism, we must first take account of race. There is no other way.”[xxx]

People tend to get uncomfortable when any government-driven initiative is posed as rectifying past injustices, ostensibly to the detriment of people today who have done nothing wrong. The framing of affirmative action as a tool to uplift disadvantaged minorities makes it, or at least places it adjacent to, the question of reparations. People wonder why they, or their children applying to college, should be penalized for something their ancestors did—especially something they did “such a long time ago.” But every day, in every single aspect of life—wealth, safety, health, family stability, employment, and yes: higher education—Black Americans and other underrepresented minority groups bear the consequences of the oppression and brutality of other people’s ancestors.

To shun the responsibility to correct that wrong, to campaign against initiatives designed to decrease racial divides in this country because a high school senior found themselves among one of many thousands who didn’t get into Harvard, is irresponsible and narrow-minded. Once detached from misguided arguments that circumvent its most valuable purpose, affirmative action can continue to chip away at historical inequalities that have been allowed to persist for too long.

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[i] “Regents of the University of California v. Bakke.” Oyez, https://www.oyez.org/cases/1979/76-811.

[ii] Harris, Adam. “The Supreme Court Justice Who Forever Changed Affirmative Action.” The Atlantic, 13 Oct. 2018,https://www.theatlantic.com/education/archive/2018/10/how-lewis-powell-changed-affirmative-action/572938/. 

[iii] Mansky, Jackie. “The Origins of the Term ‘Affirmative Action.’” Smithsonian Magazine, 22 June 2016, https://www.smithsonianmag.com/history/learn-origins-term-affirmative-action-180959531/.

[iv] Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, 20-199 U.S., H.R.C. (2022).

[v] Jones, Janelle et al. “50 years after the Kerner Commission.” Economic Policy Institute, 26 Feb. 2018, https://www.epi.org/publication/50-years-after-the-kerner-commission/.

[vi] Harris, Adam. “This Is the End of Affirmative Action.” The Atlantic, 26 July 2021, https://www.theatlantic.com/magazine/archive/2021/09/the-end-of-affirmative-action/619488/.

[vii] Ashkenas, Jeremy et al. “Even With Affirmative Action, Blacks and Hispanics Are More Underrepresented at Top Colleges Than 35 Years Ago.” The New York Times, 24 Aug. 2017, https://www.nytimes.com/interactive/2017/08/24/us/affirmative-action.html.

[viii] Foley, Michelle. “Harvard Diversity Statistics: An In-Depth Look.” CollegeVine, 31 Dec. 2020, https://blog.collegevine.com/harvard-university-diversity-statistics/.

[ix] “Quick Facts: United States.” United States Census Bureau, https://www.census.gov/quickfacts/fact/table/US/PST045221.

[x] Marcus, Jon. “Facts about race and college admission.” The Hechinger Report, 6 July 2018, https://hechingerreport.org/facts-about-race-and-college-admission/.

[xi] “Historically Black Colleges and Universities: Action Needed to Improve Participation in Education’s HBCU Capital Financing Program.” United States Government Accountability Office, June 2018, https://www.gao.gov/assets/gao-18-455.pdf.

[xii] Harris, Adam. “What Happens When a College’s Affirmative-Action Policy Is Found Illegal.” The Atlantic, 26 Oct. 2018. https://www.theatlantic.com/education/archive/2018/10/when-college-cant-use-race-admissions/574126/.

Kiteck, Goldia. “The legacy of Prop. 209: Black students continue to be underrepresented, poorly resourced.” The Daily Californian, 2 Feb. 2018, https://www.dailycal.org/2018/02/02/prop-209-affirmative-action-uc-berkeley-enrollment.

[xiii] Harris, Adam. “Justice Jackson’s Crucial Argument About Affirmative Action.” The Atlantic, 1 Nov. 2022, https://www.theatlantic.com/politics/archive/2022/11/affirmative-action-supreme-court-ketanji-brown-jackson/671954/.

[xiv] Harris, Adam. “What Happens When a College’s Affirmative-Action Policy Is Found Illegal.”

[xv] Hartocollis, Anemona. “50 Years of Affirmative Action: What Went Right, and What It Got Wrong.” The New York Times, 30 Mar. 2019, https://www.nytimes.com/2019/03/30/us/affirmative-action-50-years.html.

[xvi] “Shelby County v. Holder.” Oyez, https://www.oyez.org/cases/2012/12-96.

[xvii] Hartocollis, Anemona. “He Took On the Voting Rights Act and Won. Now He’s Taking On Harvard.” The New York Times, 19 Nov. 2017, https://www.nytimes.com/2017/11/19/us/affirmative-action-lawsuits.html.

[xviii] Caplan, Lincoln. “Thurgood Marshall and the Need for Affirmative Action.” The New Yorker, 9 Dec. 2015, https://www.newyorker.com/news/news-desk/thurgood-marshall-and-the-need-for-affirmative-action.

[xix] Caplan, Lincoln. “Thurgood Marshall and the Need for Affirmative Action.”

[xx] Harris, Adam. “Justice Jackson’s Crucial Argument About Affirmative Action.”

[xxi] Harris, Adam. “Justice Jackson’s Crucial Argument About Affirmative Action.”

[xxii] Silva, Daniella. “Study on Harvard finds 43 percent of white students are legacy, athletes, related to donors or staff.” NBC News, 30 Sept. 2019, https://www.nbcnews.com/news/us-news/study-harvard-finds-43-percent-white-students-are-legacy-athletes-n1060361.

[xxiii] “Gratz v. Bollinger.” Oyez, https://www.oyez.org/cases/2002/02-516.

[xxiv] Reyes, Kimberly. “Affirmative Action Shouldn’t Be About Diversity.” The Atlantic, 27 Dec. 2019, https://www.theatlantic.com/ideas/archive/2018/12/affirmative-action-about-reparations-not-diversity/578005/.

[xxv] Shafer, Leah. “The Case for Affirmative Action.” Harvard Graduate School of Education, 11 July 2018, https://www.gse.harvard.edu/news/uk/18/07/case-affirmative-action.

[xxvi] Green, Emma. “The Inherent Contradictions in the Affirmative-Action Debate.” The New Yorker, 31 Oct. 2022, https://www.newyorker.com/news/annals-of-education/the-inherent-contradictions-in-the-affirmative-action-debate.

[xxvii] Green, Emma. “The Inherent Contradictions in the Affirmative-Action Debate.”

[xxviii] Menand, Louis. “Is Meritocracy Making Everyone Miserable?” The New Yorker, 30 Sept. 2019, https://www.newyorker.com/magazine/2019/09/30/is-meritocracy-making-everyone-miserable.

[xxix] Harris, Adam. “The Supreme Court Justice Who Forever Changed Affirmative Action.”

[xxx] Gersen, Jeannie Suk. “Education After Affirmative Action.” The New Yorker, 29 Oct. 2022, https://www.newyorker.com/magazine/2022/11/07/education-after-affirmative-action.

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