Affirmative action has inspired fierce debates and repeated litigation. It is also frequently misunderstood. As a conceptual framework, affirmative action remains relevant for a national racial justice agenda. Its surviving policies are critical for dismantling institutional practices that limit opportunities for highly qualified African Americans and other marginalized racial minorities.
John F. Kennedy first used the term to address racial disparity in March 1961. In Executive Order 10925, President Kennedy ordered government contractors to “take affirmative action” to realize the national goal of “nondiscrimination.” This policy reflected a recognition that centuries-old racism (by law and custom) innately restricted the economic, political, and educational opportunities for African Americans and other minority groups. For instance, colorblind seniority systems protected white workers against job layoffs because senior employees were usually white due to past and present discrimination in hiring. Likewise, a colorblind college admissions process favored white students because of earlier and ongoing educational advantages associated with race. The conceptual thrust behind affirmative action is that proactive efforts are necessary to disrupt an otherwise uneven playing field.
Over time, however, courts have significantly shaved down the contours of permissible affirmative action policies. In the 1960s and 1970s, colleges and graduate schools began developing affirmative action policies to expand access to disadvantaged and underrepresented segments of society, including racial minorities. In 1978, the Supreme Court heard its first challenge to such programs in a lawsuit brought by Allan Bakke, a white man who had been denied admission to the University of California at Davis’s medical school (UC Davis) (Regents of the Univ. of Cal. v. Bakke). UC Davis had set aside 16 of 100 seats for individuals who identified as “economically and/or educationally disadvantaged” and members of a “‘minority group’ (blacks, Chicanos, Asians, American Indians).” UC Davis offered several justifications for its program, including that: (1) it rectified past discrimination in medical schools and the medical profession; (2) it countered present societal discrimination; (3) it increased the number of physicians in underserved communities; and (4) it promoted the educational benefits that flow from an ethnically diverse student body.
The Supreme Court was closely divided. Four justices would have upheld the constitutionality of UC Davis’s program under the Equal Protection Clause and Title VI on grounds that it remedied the effects of past societal discrimination. The Court’s four conservative-leaning justices would have barred universities from considering race at all. The deciding vote was cast by Justice Lewis F. Powell Jr. Applying strict scrutiny, Justice Powell rejected UC Davis’s argument that it had a compelling interest in rectifying past discrimination and increasing medical practitioners in underserved communities. Instead, Powell only endorsed UC Davis’s argument that it had a compelling interest in the benefits of a diverse student body. Powell then rejected UC Davis’s race-conscious program based on its operation in practice. Powell found the 16-seat set-aside amounted to a quota that failed to meet the standards of narrow tailoring. In contrast, Powell endorsed the race-conscious plan submitted by Harvard University as part of its amicus brief. Harvard’s plan subjected all applicants to a highly individualized, holistic review process that considered race as one of many factors to admit students who were diverse across a range of dimensions, including socioeconomic status, geography, and race.
In the past two decades, the Supreme Court has repeatedly reaffirmed the legality of race-conscious admissions to promote racial diversity in higher education. In 2004, the Supreme Court heard a pair of cases brought by white applicants challenging race-conscious admissions policies at the University of Michigan and Michigan Law School (Gratz v. Bollinger and Grutter v. Bollinger). In handing down its rulings, the Supreme Court explicitly embraced Bakke and re-endorsed individualized review processes that consider race as one of many factors to promote diversity. The Supreme Court repeated this refrain as recently as 2013 and 2016, rejecting a lawsuit brought by Abigail Fisher (a white woman) challenging the University of Texas at Austin’s holistic, race-conscious policy on the grounds that the policy “promotes cross-racial understanding, helps to break down racial stereotypes, and enables students to better understand persons of different races” (Fisher v. Univ. of Texas at Austin).
While race-conscious admissions have survived numerous challenges in court, many civil rights advocates have expressed frustration with the current legal limitations of affirmative action and how it is currently practiced. Critics have expressed frustration with the prevailing diversity rationale for centering white students as the intended beneficiaries who extract educational value from minority students. Others, such as Sheryll Cashin and Sally Chung, have criticized the policy for losing its intended purpose of amending structural disadvantages, arguing it fails to adequately assist minority students from lower-socioeconomic backgrounds and ignores structural inequities.
Even advocates for race-conscious admissions have agreed with such criticisms. They acknowledge a comprehensive vision for racial equity must go beyond admissions and the diversity rationale. But they also argue that race-conscious admissions may not be a panacea for resolving racial inequities, but it also must not be abandoned. It remains a vital tool for ensuring talented students of all backgrounds can access quality higher education. Such advocates often emphasize the immediate, adverse consequences of ending race-conscious policies. Experiences in California and Texas are instructive. When UT-Austin stopped considering race from 1996–2004 due to a contrary decision from the Fifth Circuit (Hopwood v. Texas), the number of African American and Latinx students immediately declined, with African American enrollment dropping by 40 percent and Hispanic enrollment dropping by 5 percent (despite the rapidly increasing number of Hispanics in the admissions pool). California experienced similar declines after the passage of proposition 209, which banned affirmative action in education and employment. When implemented, African Americans experienced a 55 percent decline in admissions offers to UC Berkeley and UCLA, the state’s two most selective universities. Despite significant investment in race-neutral alternatives over 20 years, the UC system has never returned to its previous levels of diversity.
Today, top-tier universities suffer from abysmally low proportions of black, Latinx, and other minority students. A 2017 New York Times analysis observed that “black and Hispanic students are more underrepresented at the nation’s top colleges and universities than they were 35 years ago.” Our colleges cannot afford to scale back programs that expand racial inclusivity.
Unfortunately, a concerted effort is underway to do just that. Over the last decade, Edward Blum—a longtime opponent of civil rights programs—has spearheaded a series of lawsuits with the stated purpose of ending any consideration of race in admissions. Blum was the mastermind behind Fisher v. Univ. of Texas at Austin. After his failure in Fisher, Blum revised his approach to eliminate race-conscious admissions. He created the organization Students for Fair Admissions (SFFA) as a vehicle for his anti-affirmative action efforts. He publicly stated that he “needed Asian plaintiffs,” transparently pursuing a racially divisive strategy that tries to pit Asian Americans against other minority groups.
In 2014, SFFA (backed by Blum) filed two new lawsuits against Harvard University and the University of North Carolina-Chapel Hill (UNC) claiming the universities’ use of race exceeded lawful limits set by the Supreme Court under Title VI and the Equal Protection Clause. The Harvard lawsuit was novel in two respects. It was the first affirmative action case against a private university. It was also the first case to claim a university’s race-conscious policy intentionally discriminated against Asian Americans. Beyond these distinctions, the lawsuits largely rehash the same arguments of prior cases, asserting: Colleges should give greater weight to socioeconomic status in lieu of race; standardized tests provide the benchmark for who deserves admission; and there are sufficient levels of racial diversity across campus.
Both lawsuits promote a colorblind framework. The complaints urge the court to prohibit “any use of race or ethnicity in the educational setting” and ban admissions officers from being “aware of or learn[ing] the race or ethnicity of any applicant.” Taken to its logical end point, such relief would substantially alter the admissions process. Purging all reference to race would potentially prevent colleges from conducting interviews and recruiting applicants in person. It would also jeopardize students’ ability to submit essays and recommendations discussing how race or ethnicity has impacted their lives; list awards and activities indicating their race or ethnicity; or write about their immigrant stories, regardless of their country of origin. In effect, it would perversely penalize some applicants in the name of equal protection (especially non-white applicants who disproportionately face racial barriers).
Such “race-blind” relief also indicates Blum and SFFA are not genuinely interested in counteracting biases faced by the Asian American community. Research shows that effective methods for combatting racial bias involve race-conscious interventions, such as providing implicit-bias trainings to admissions officers or engaging in race-conscious recruiting to cultivate greater diversity among admissions officers. Banning all consideration of race further fuels a white admissions advantage. Evidence submitted during the Harvard trial showed white students would experience the greatest gains in admission under a race-blind system, with their share of the admitted class jumping from 40 percent to 48 percent.
A diverse coalition of students at Harvard and UNC—identifying as black, Latinx, Asian American, and Native American—came together to express support for race-conscious programs that promote greater racial diversity and inclusion. Their unified stance rejected Blum’s divisive strategy and recognized that reckoning with race remains necessary in light of our country’s past and present struggles with racial inequalities and overt racism.
In the Harvard lawsuit, the district court permitted this diverse coalition of students to submit testimony in support of race-conscious admissions during the three-week trial held in October 2018. For its part, SFFA did not present a single student to testify on their behalf, nor did SFFA submit a single student file containing implicit or explicit discriminatory statements, nor did SFFA’s experts consult a single student in forming their opinions.