Can Affirmative Action Be Fixed?

Experts weigh in on why, despite the Supreme Court ruling, the equity policy faces major problems.

Protesters outside Supreme Court before arguments in Fisher v. University of Texas, Oct. 10, 2012 (Mark Wilson/Getty Images)
Protesters outside Supreme Court before arguments in Fisher v. University of Texas, Oct. 10, 2012 (Mark Wilson/Getty Images)

(The Root) — Now that the Supreme Court has kicked Fisher v. University of Texas, its first major affirmative action case in a decade, back to the lower court, the outcome is still up on the air. But something that experts interviewed by The Root appear to be in agreement on is that regardless of what happens with the case, affirmative action is at a crossroads.

Today even supporters of affirmative action, particularly in higher education, acknowledge that the system is far from perfect, with not nearly enough students who are in need of equal opportunity benefiting from the policy. Discussions with some of the nation’s foremost experts on the subject indicate that the biggest threat to affirmative action’s survival may not be the Supreme Court but the ever-changing definition of who is supposed to benefit from such programs, versus the reality of who actually is.

“The scope of affirmative action originally dealt with the disenfranchisement of African Americans here in this country, and I am using the term ‘African American,’ ” Clemson University professor Juan Gilbert noted when speaking with The Root. “Fast-forward [to] today and [look at] African Americans, and who’s benefiting?”

To that point, Editor-in-Chief of The Root Henry Louis Gates Jr. and Harvard law professor Lani Guinier sparked nationwide discussion in 2004 when they noted that a majority of the black undergraduates at Harvard University did not fit the traditional definition of “African American.” They estimated that many, perhaps up to two-thirds, were immigrants or the children of immigrants — meaning that their parents probably, and their grandparents certainly, did not experience America’s particular brand of rampant legalized segregation and discrimination that predated the modern-day civil rights movement, of which affirmative action programs were an outcome.

As the New York Times noted at the time: “They said that only about a third of the students were from families in which all four grandparents were born in this country, descendants of slaves. Many argue that it was students like these, disadvantaged by the legacy of Jim Crow laws, segregation and decades of racism, poverty and inferior schools, who were intended as principal beneficiaries of affirmative action in university admissions.”

It is worth noting that if this standard were used, President Obama would not have been a beneficiary of affirmative action, since neither of his parents was a native-born black American who had endured Jim Crow. But this argument is predicated on answering two key questions:

1. What was the original intent of affirmative action programs in higher education?

2. Who were such programs explicitly intended to benefit?

The Purpose of Affirmative Action

“The goal [of affirmative action in higher education] was to desegregate institutions,” said Joel Dreyfuss, co-author of The Bakke Case: The Politics of Inequality, the definitive book on the Supreme Court’s landmark affirmative action case Regents of the University of California v. Bakke. (Dreyfuss is a senior editor-at-large at The Root.) “They were implemented in the ’70s. They were intended to bring in minorities, but primarily blacks. At that time, ‘black’ was synonymous with ‘minority.’ “

Dorothy Garrison-Wade and Chance Lewis, who analyzed four decades of affirmative action cases and policies, have written (pdf):

From the literature, it appears the main objective of affirmative-action policies in higher education is to improve educational opportunities for minorities by equalizing admission requirements by including race as one factor in the admission process. Another objective is to correct past discrimination by promoting educational diversity. This objective is confirmed in many U.S. Supreme Court rulings that upheld court cases in favor of institutions when justification for race-conscious policies demonstrated a compelling interest. Compelling interest is divided into “remedial” interests, which include remedy of past discrimination and “non-remedial interests,” which promote educational diversity, reduce racial isolation or promote educational research.

In their research, Garrison-Wade and Lewis reference President Lyndon Johnson’s own words, which confirm that the goal of affirmative action was at least in part to “remedy” past inequalities experienced by black Americans. In a 1965 speech at Howard University, President Johnson laid out the case for affirmative action, saying this:

But freedom is not enough. You do not wipe away the scars of centuries by saying, “Now you are free to go where you want, and do as you desire, and choose the leaders you please.” You do not take a person who, for years, has been hobbled by chains and liberate him, bring him up to the starting line of a race and then say, “You are free to compete with all the others,” and still justly believe that you have been completely fair …

For the task is to give 20 million Negroes the same chance as every other American to learn and grow, to work and share in society, to develop their abilities — physical, mental and spiritual — and to pursue their individual happiness.