Legal History of Affirmative Action
The majority of key U.S. Supreme Court cases were not initiated by racial or ethnic minorities to fight for access to higher education admissions. Instead, they were initiated by white plaintiffs, who perhaps had a sense of envy, hate, or jealousy towards diversifying the applicant pool. In 1978, the U.S. Supreme Court reviewed the Regents of the University of California v. Bakke, 438 U.S. 265 (1978), which was one of the first cases where a white male applicant to a medical school believed he was discriminated against because there was a small number of seats (16 seats) set for minority students. He eventually got admitted to the school and is now happily employed in the medical profession. Similarly, in Grutter v. Bollinger, 539 U.S. 306 (2003), the U.S. Supreme Court noted that race is one factor in admission, and it passed all constitutional tests. Notably, in Fisher v. University of Texas, 579 U.S. 365 (2016), the plaintiff, a white female, went up to the U.S. Supreme Court three times. The first two times, she sued as an applicant who had been rejected by the University of Texas-Austin, and the third time, as one of the leaders of the Students for Fair Admissions.
Two years prior to the release of the song, “Affirmative Action,” the U.S. Supreme Court held in Adarand Constructors, Inc. v. Pena, 513 U.S. 1012 (1994), that federal affirmative action programs remain constitutional when narrowly tailored to accomplish a compelling government interest such as remedying discrimination. A year later, the Regents of the University of California voted to end affirmative action programs at all University of California campuses. Beginning in 1997 for graduate schools and 1998 for undergraduate admissions, the Regents were no longer permitted to use race, gender, ethnicity, or national origin as a factor in admissions decisions. Thankfully, the diversity of California on its own helps in diversifying the makeup of its schools. However, when looking at K–12 public schools across the United States and comparing the makeup of some of our elite institutions of higher learning, we see a stark contrast in that same diversity.
This year, in the U.S. Supreme Court case, Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, we see that one of our country’s most laudable educational institutions ended the use of race as a deciding factor in their admissions process. This case is the most recent development in the chipping away of the legal framework that began with the Equal Protection Clause of the Fourteenth Amendment that provided no state shall “deny to any person . . . the equal protection of the laws.” Although a private institution, Harvard and so many other institutions of higher learning are microcosms of society at large—somewhat representative of the “state” and the “state of our society.”
In Students for Fair Admissions, Inc., the U.S. Supreme Court favored the plaintiffs’ arguments, which noted that race-conscious admissions discriminate against Asian Americans. This is a complete 180 degree turn of perspective and interpretation compared to the Grutter and Fisher days. However, this argument wholly ignores the model minority myth and the true diversity of the Asian American and Pacific Islanders (AAPI) community with respect to access to education and life circumstances. Most significantly, it ignores systemic barriers to education and employment outcomes for various communities, including but not limited to AAPI and Lesbian, Gay, Bisexual, Transgender, Queer, Intersex, and Asexual communities.
Consequences of Shrinking Affirmative Action
The atmosphere of our country is growing less tolerant of difference. There has been a rise in bias and hate crimes—especially antisemitism, Islamophobia, and anti-AAPI. In our schools and communities, parents are in favor of increased book bans, which are inconsistent with fostering an inclusive school community. The rise of radicalization in the United States and mass shootings in our public schools cannot be ignored and must be addressed because the consequences will only continue to fester in higher education, the workplace, and our communities.
It leaves us with a question of how can we continue to teach and be models of tolerance, race-consciousness, and equity as early as our K–12 public schools within the bounds of the law to advance the causes of underrepresented and/or marginalized communities. The U.S. Supreme Court’s recent ruling essentially dismantles an entire pedagogy and measures attacking de facto school segregation.
In New Jersey, the Law Against Discrimination, as well as the Anti-Bullying Bill of Rights Act, are meant to curb hostile educational environments where a person is physically and/or emotionally harmed and targeted because of their protected class or other distinguishing characteristic. New Jersey Attorney General Matthew J. Platkin and Acting Department of Education Commissioner Dr. Angelica Allen-McMillan issued a joint statement offering guidance across New Jersey public schools to address the rising tide of bias and hate. The guidance, however, leaves it up to administrators to continue to develop and implement initiatives to counter bias and to continue to display inclusive markers, flags, and symbols in and around their buildings and to ensure students have access toe books representing a diversity of experiences.
These protections, although not perfect, are tools to achieve equity and race-consciousness in schools. However, there are almost no similar protections to address bias between students in higher education institutions and even more limited protections to address bias between colleagues in the workplace and in our own communities. If the legal climate continues to chip away at diversity and equity initiatives, we will continue to have an atmosphere of lust, envy, jealousy, and hate.