Court-watchers like me get very excited every year when June rolls around: in the words of Justice Ruth Bader Ginsberg, it’s “flood season,” time for the United States Supreme Court to start releasing decisions on the cases it has heard over the past year. The big one this year, of course, was the Court’s decision to uphold the Affordable Care Act. However, one of the biggest cases is still pending. The Supreme Court is currently reviewing a challenge to the University of Texas’s use of affirmative action in college admissions policies. The New Yorker’s Jeffrey Toobin describes Fisher v. University of Texas at Austin as “the other big Supreme Court case” of the year, no doubt because the Court’s decision in this case will affect millions of students-and, some argue, possibly the end of affirmative action altogether.
What is Affirmative Action?
To fully understand affirmative action, it’s useful to examine the full history of the policies, which began in the 1960s. At the time, the Civil Rights Movement had raised consciousness about the routine and devastating practice of racial discrimination in employment, housing, and education. This discrimination perpetuated poverty and oppression and created a permanent underclass that was defined largely by race and ethnicity. Though many Internet definitions of affirmative action are often driven by the political agendas of each website, in this case the Stanford Encyclopedia of Philosophy offers a balanced definition. It states,
‘Affirmative action’ means positive steps taken to increase the representation of women and minorities in areas of employment, education, and business from which they have been historically excluded.” However, this definition then continues by explaining that “when those steps involve preferential selection-selection on the basis of race, gender, or ethnicity-affirmative action generates intense controversy.
The Arguments For and Against Affirmative Action
Affirmative action in education has often been addressed by the Supreme Court, significantly in Regents of the University of California v. Bakke(1978), when quotas based on race were deemed unconstitutional. The Court last ruled on this issue in Grutter v. Bollinger (2003). That decision reaffirmed Bakke: the now familiar 5-4 split tipped toward the opinion that, while quotas are unconstitutional, colleges and universities are within their rights to consider race as one of the many admissions factors.
This decision is now under attack by those who argue that affirmative action merely translates to preferential treatment of unqualified candidates. According to cyberlearning-world.com, “affirmative action is wrong and it adds to discrimination by counting the number of minorities instead of worrying about the people who might be more qualified for the position.” Opponents of affirmative action argue that the only truly equal playing field is one in which all candidates for jobs, housing, or college enrollment, are given an equal chance regardless of their racial, ethnic, or gender identity.
Supporters of affirmative action argue that our society’s history of and present forms of inequality mean that we cannot assume that there is ever an “equal chance” for all candidates. Persistent patterns of discrimination have concentrated poor blacks, Latinos, and other minorities into poverty-stricken cities with underfunded schools that can in no way prepare students or workers to compete with others from more affluent areas who have benefited from well-funded schools.
They also point out that the persistence of racism in the United States means that a person’s race, ethnicity, and gender might always eliminate them from consideration, leading to the dominance of an all-white male group over everyone else. In order to ensure democracy, they argue, affirmative action is necessary to provide all members of society with opportunities to develop the tools of participation and leadership, as well as provide for their families.
Finally, proponents of affirmative action believe that it is necessary to maintain the primary benefits of a college education, which include greater financial opportunity for all and the development of a more egalitarian society. The New York Times’s Supreme Court correspondent Adam Liptak argued that a decision to eliminate affirmative action “would, all sides agree, reduce the number of African-American and Latino students at nearly every selective college and graduate school, with more Asian-American and white students gaining entrance instead.” Columbia University student Jessica Geiger’s op/ed piece in the Columbia Spectator succinctly summed up the position in favor of retaining affirmative action in higher education. Of the pending lawsuit’s possible threat to the policy, she wrote,
This risk to affirmative action exists for two reasons. First, the Grutter case was decided in 2003, and since then the Supreme Court has become more conservative and likely to rule against affirmative action as it now stands. Second, the legal principle that is under siege via the Fisher lawsuit is whether “diversity” is of such a compelling state interest that it can override any concerns of “race” that are intertwined with diversity. Chief Justice John Roberts’ Supreme Court may very well rule that diversity isn’t sufficiently important, and that would be regrettable. Sorting through the tea leaves, we learn that Roberts sees little to no constitutional protection for diversity. In a different case in 2007, Roberts wrote, “Racial balancing is not transformed from ‘patently unconstitutional’ to a compelling state interest simply by relabeling it ‘racial diversity.’
What it all Means
When I think about affirmative action, my mind invariably returns to what I see when I ride the train into New York City from Connecticut. I grew up in the lower middle class-barely. My Vietnam veteran father worked first as a trash collector and then in a factory, and my mother was a house-cleaner, waitress, and bank teller for much of my childhood. We definitely struggled financially. But I had the benefit of well-funded schools in a generally wealthy town that provided me with the intellectual tools to succeed in nearly any endeavor I chose.
What I see from the safe distance of my train window as I travel through crime-ridden, poverty-stricken areas shows that this is hardly the case for most poor children. I see children playing amid rubble and trash, boarded-up buildings, and lifeless adults sitting on their stoops, staring into a distance that doesn’t offer much hope. We can see the same scenes in any city in America, and in much of our rural areas, too: for example, New Hampshire’s struggles over education funding have long been notorious. This all tells me that without affirmative action, educational inequality will not only continue, it will worsen.
That’s why we still need affirmative action: not to rectify past injustices but to address current inequalities. In a democratic society, those inequalities are forms of injustice still driven by racism and other kinds of discrimination. Only when we have truly established a level playing field for each child, in which they all can grow up with good schools and high-quality instruction, will affirmative action to get into college be unnecessary.