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)

Johnson elaborated in the speech, noting that everything from the neighborhood you are raised in to the schools you attend as a child can imbue you with distinct advantages and disadvantages that can last a generation or more.

The fact that affirmative action from the outset was “remedial,” intended to remedy disadvantages that black Americans and their children might face (such as lacking college-educated grandparents, while a white college applicant might be a third-generation legacy), casts a long shadow over present-day affirmative action programs. Specifically it complicates discussions over who should actually benefit today. Adding to the complication is that proponents and legal experts have cited diversity as a key goal of affirmative action today. Yet so far, no one can seem to reach a consensus on what and who constitutes ideal “diversity.”

Who Should Affirmative Action Help?

“Affirmative action was never directed at a particular race,” said Elaine R. Jones, former director-counsel of the NAACP Legal Defense and Educational Fund, one of the country’s leading civil rights legal-advocacy arms. The first director-counsel was Thurgood Marshall, who litigated the landmark school-desegregation case Brown v. Board of Education in 1954 and who would become the first black justice to sit on the U.S. Supreme Court. “What disturbs me is people try to make it a black-white thing. People try to make it a black-white paradigm,” Jones said in an interview with The Root.

Dreyfuss, however, said, “It was implied that it was black Americans,” explaining that “minority” was synonymous with “African American” at the time affirmative action programs were implemented. “The civil rights movement was a black-versus-white movement,” he added.

When asked about Dreyfuss’ interpretation, Jones agreed that it was implied that affirmative action was to help black Americans, but she noted that this was not explicitly stated or enshrined. “Its goal was [to help] kids who were locked out of the system, who were predominantly ethnic minorities, although women were included in there. Women were huge beneficiaries of affirmative action.”

Gilbert noted that a number of educational institutions began altering their racial classifications to reflect the uptick in representation among immigrants. So designations that once read “African American” or “Negro” now read “Black/African American” to encompass the number of non-American blacks attending colleges and universities.

Dreyfuss, whose parents were Haitian immigrants, acknowledged that the emergence of black immigrants in the affirmative action debate led to resentment among some African Americans and their families. But ultimately, Dreyfuss and Gilbert contend, the debate over the role of black immigrants in the affirmative action debate is just the tip of the iceberg for much more complex societal issues that must be resolved in order for affirmative action to continue.

Gilbert said that at the end of the day, the debate over affirmative action isn’t really about race at all. “I think race, gender, national origin, are scapegoats in this whole debate because even if [the Supreme Court justices] strike down the use of race and ethnicity, I predict that in two years there is going to be a new case, but the case if going to be challenging athletics or some other category. We’re not dealing with the real issue. There are more qualified people than available slots.” He has dubbed this a “capacity issue,” precipitated by the higher-than-ever-before number of Americans who are encouraged to go to college, and colleges and universities’ struggle to keep up.