Any proper obituary for affirmative action (1961-2023) in higher education would be obliged to note that it had been in decline for years before it met its ultimate demise this week. The policy had weathered successive legal challenges dating back to the nineteen-seventies. It was often difficult to tell whether the effect of these suits was to inspire more nuanced and legally sustainable approaches for insuring diversity or to better define the target opponents were aiming at. As with other untimely passings, the scale of what has been lost is difficult to assess in the moment. But not entirely impossible.
The term “affirmative action” was introduced in an executive order issued by President John F. Kennedy on March 6, 1961, articulating a policy of proactively impeding discrimination in hiring. In the ensuing years, there have been many iterations of this practice: numerical targets, or “quotas,” in the early days; increasingly sophisticated formulas pegged to goals of diversity more recently. But the common thread was a sober, if imperfect, attempt to grapple with the abiding inequality in American society and to navigate closer to equitable representation in our institutions and opportunities. It yielded significant results as an engine that drove integration in the wake of the civil-rights movement and helped expand the Black middle class.
Yet, almost from the outset, critics of the policy could be seen impatiently tapping their watches, questioning how long (white) society was meant to endure the patent unfairness of these racial considerations. (The gender considerations of affirmative action, which were introduced by the Johnson Administration, have been targeted in different ways.) Even its supporters were commonly ambivalent. In the 2003 Grutter v. Bollinger case, which challenged admissions practices at the University of Michigan Law School, the Supreme Court narrowly defended the policy. Justice Sandra Day O’Connor wrote, “We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.”
Yet “How long?” was always the wrong question. It presupposed that there was a standard speed at which groups whose disadvantages were the product of centuries of social engineering were meant to recover and achieve. The salient metric was progress, not time. It matters that, half a century after the end of the civil-rights movement, the median net worth of white households was still ten times the median net worth of Black households—a disparity driven by decades of restricted access to education, employment, and housing. These disadvantages were not simply the product of economic class—middle-class Black students in the United States are still more likely to attend schools with fewer resources than their middle-class white peers. Crucially, in the wake of the 1978 Regents of the University of California v. Bakke case, one of the first significant challenges to affirmative action, these factors were discarded as a rationale for the policy in place of a more nebulous (and, presumably, more palatable) pursuit of social and institutional “diversity.” It’s worth noting that the two suits that Students for Fair Admissions brought, against Harvard and the University of North Carolina, which alleged, among other things, discrimination against Asian American applicants, and which gave the Court’s conservatives the opportunity to dismantle affirmative action, were heard in the midst of a concerted multi-state assault on the edifice of diversity that has sprung up in the decades since Bakke.
The Supreme Court telegraphed its 6–3 vote last October, when the arguments were heard. A Times headline blurted, “Supreme Court Seems Ready to Throw Out Race-Based College Admissions.” Notably, Justice Clarence Thomas, whose contempt for affirmative action dates back decades, to his years at Yale Law School and the inscrutable idea that the policy was responsible for the dearth of job offers he received after graduation, specifically questioned the utility of diversity as a goal during oral arguments. “I’ve heard the word ‘diversity’ quite a few times, and I don’t have a clue what it means,” Thomas said. “It seems to mean everything for everyone.” This is a specious argument. The many diversity programs in higher education have as their goal fostering heterogeneous communities across lines of nationality, background, interests, talents, and experiences. Of the hundred and sixteen people who have served on the Supreme Court, only two—Justices Thurgood Marshall and Clarence Thomas—knew what it felt like to attend a segregated school as a Black person. This perspective inarguably benefits a body dedicated to adjudicating cases that affect the entire society. The reasoning is not difficult to grasp, even if it is, apparently, difficult to uphold.
The ultimate impact of this decision will become clearer over time, but it is safe to predict that the result will be fewer students from traditionally underrepresented minorities on college campuses, particularly at the most competitive institutions. In 1998, after the University of California system stripped away race, gender, and ethnicity as a factor in admissions, the number of Black and Latino students enrolled at its most selective schools, Berkeley and U.C.L.A., dropped by some forty per cent. This was not just a product of there being fewer minority students admitted; fewer highly qualified Black and Latino students even applied, perhaps thinking that they wouldn’t get in. It’s not improbable for a national version of this phenomenon to crop up in coming years. It is also possible that the proportion of Black and Latino students at less well-resourced colleges, which generally have lower graduation rates, will increase. It would not be surprising for this ruling to generate a tide of applications at historically Black colleges and universities, albeit for reasons that signify less over-all opportunity.
The implications of this decision are not confined to future generations of students. As with abortion rights, this case deals with a policy that the majority of the public supports—in a recent poll, sixty-three per cent of Americans said that the Supreme Court should allow colleges to consider race and ethnicity in admissions—but that the majority of conservatives wished to see ended. The Dobbs decision, last year, furthered suspicions that this Court, with its 6–3 super-majority of conservatives, operates simply to translate Republican priorities into the law of the land. By last fall, faith in the Court had fallen to a new low—just forty-seven per cent of Americans placed “a great deal” or “a fair amount” of trust in the federal judiciary, reflecting a twenty-point drop from the results of a similar poll just two years earlier. This ruling will potentially exacerbate that distrust, and with good reason. Two decades have passed since Justice O’Connor set a timer for affirmative action’s viability, but the train seems to have arrived in the station early. The ruling marks a new departure, and we’re heading in the opposite direction from progress. ♦
