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."

Advertisement

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.' "

Advertisement

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.

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.

But Dreyfuss said that "identity" is emerging as the real challenge for implementing affirmative action in the modern era. "I think the issue of identity is going to get trickier. I think ultimately we're going to have to go to a class-based system." He pointed to the findings of a recent study, in which high-achieving students from low-income backgrounds were substantially less likely to apply to competitive colleges and universities than their peers. Increasingly, class diversity is becoming as elusive on college campuses as racial diversity.

Further complicating matters is that multiracial families are among the fastest-growing segments of the population. Some experts have drawn comparisons to Brazil in predicting what America's racial makeup may soon look like. Brazil implemented affirmative action only recently, with a law affecting public college admissions signed just last year. A PBS documentary depicted the complexities of implementing it in a society where a large number of people don't identify as one singular race. For instance, the documentary highlighted the case of two twins, one of whom is deemed "black" and therefore permitted to benefit from affirmative action, while another is deemed not black.

Dreyfuss explained that with the explosion of multiracial families, determining who qualifies as a minority is only going to become tougher. So will determining someone's motives for identifying as a minority. Dreyfuss suggested that if certain people are not publicly identifiable as minorities, then asking questions about how they have privately and publicly identified throughout their lives may be relevant.

Asking what their long-term goals are may be relevant, too. For instance, if someone is not a visible minority but plans to use a medical degree to provide health care to underserved minority communities, should that person's efforts to attend an institution of higher education be given priority? As complicated as Dreyfuss' proposal may sound, other experts predict that it is the unavoidable wave of the future when it comes to college admissions.

Finding Solutions

Catherine Horn of the University of Houston is one of the leading experts on race-neutral admissions policies. Along with her research partner Stella Flores of Vanderbilt University, Horn has analyzed the impact of race-neutral admissions policies in states like Texas, California and Florida. While both supporters and opponents of affirmative action often cite Texas as a model for finding common ground on the issue, Horn's analysis found that the reality in the state is not quite so rosy.

Texas has an automatic-admissions policy for its state universities for any applicant who graduates in the top 10 percent of his or her high school class. In an interview with The Root, Horn explained that her analysis of data from 1998 through 2010 found that this policy has had little impact on increasing racial diversity but instead has resulted in a noticeable increase in regional diversity. Students from towns and cities whose residents may not have traditionally attended certain state universities are more likely to do so, thanks to the top 10 percent policy. But issues of race and class have still proved to be a troubling quandary.

Horn explained that when a specific Texas state university has actively used scholarships to recruit students from schools in underprivileged communities, there has been a small increase in racial diversity at that school. She then pointed to schools that seem to have found the magic bullet — or the closest thing to one.

After California was rocked by legal decisions restricting the use of race as a consideration for college admissions, the University of California, Berkeley, began a "holistic" approach to admissions. This means that the university spends time and energy examining every facet of a student's application for clues about whether or not that student brings something special to the university and whether the school would be a good fit for the student. For instance, it teases out specific issues, such as class and racial identity, by giving students the opportunity to address in an essay hardships or adversity produced by those issues. But this strategy is time-consuming and costly, requiring great care and attention to every application.

But Horn, who is white, believes that it's worth it. "I think institutions of higher education have a responsibility to be transformational in their contributions in the development in humanity," she said. "They do that in lots of different ways, but I think we share that responsibility, and part of the way we engage in that responsibility is through the admissions process. So part of what we ought to be considering in our admissions process is, how do we bring together an amazing group of students who collectively become a sum greater than their parts toward this transformation of humanity?"

Diversity's Future

"Holistic" was also the word that Juan Gilbert used to describe the future of admissions. Gilbert, a professor of human-centered computing, is credited with creating a software program to help colleges achieve their diversity ideal on campus. The program allows colleges to set specific thresholds, such as a particular grade point average and a certain number of letters of recommendation. After the thresholds are set and the data entered, the program recommends only applicants who fit the designated criteria.

At that point, the admissions officers are choosing from equally qualified candidates, and defining "diversity" from that pool is at their discretion. The main benefit, Gilbert explained, is that it removes the argument that an admitted minority was less qualified than a nonadmitted white student. The software confirms that all students it recommends are equally qualified.

But this means that American students of color have to be ready to compete, something that a number of the experts interviewed by The Root expressed concern about. Joel Dreyfuss said of black immigrants and other immigrant populations, "They are strivers. They work harder." Elaine Jones delicately expressed a similar sentiment, saying that the "love of learning that used to exist in our community seems to have somewhat dissipated."

Dreyfuss expressed the alarm of many interviewed: that if those who support affirmative action don't take the lead in discussing and addressing its flaws, it could soon become a thing of the past. "There's no central analysis and clearinghouse that's figured out which works best and what are the best strategies. The civil rights organizations have been so defensive about trying to protect everything, even bad solutions," he said before comparing the situation to the dark days that followed Reconstruction.

"Reconstruction is a great example. We had Reconstruction briefly for a period of years. [The opposition to it] sounded just like the arguments against affirmative action today," Dreyfuss said. "Then they did the Tilden compromise and let the South rain terror again. I don't think we're going to get terror today but indifference, which is even worse."

He continued, "As long as there is a palpable difference in opportunity between black and white; as long as I'm more likely to be stopped and frisked than Joe Blow's son, I think you need affirmative action. You're trying to balance a very fundamental flaw in our society."

Elaine Jones added that we can't just rely on institutions to address society's flaws. "When we go through the door and get the access, we are supposed to pull someone through the door. That's our job. Affirmative action is not going to solve all of the problems for all of us. It was never intended to do that."

Even if whites are not direct beneficiaries of affirmative action, they need the daily intellectual and social interaction with minority students from diverse backgrounds. Given the demographic future of this country, students need to learn how to exercise leadership and fellowship with individuals from other racial backgrounds.

Ultimately the American public needs it the most. We need leaders who have been trained in diverse environments so that we can solve problems together as citizens of one nation.

If affirmative action does eventually go the way of Reconstruction, it is unlikely that it will die a swift death, with one Supreme Court decision. It is more likely to die a death of a thousand cuts — or perhaps just two. The Supreme Court will decide a second affirmative action case later this year: Schuette v. Coalition to Defend Affirmative Action.

Assessing the impact of affirmative action in higher education, Jones said, "You know the effect of affirmative action? It has been across the board in other areas, like business. These corporations would not have been trying to diversify these boards and staff and hiring if the Supreme Court had said no to affirmative action in education. Because … the power structure would have viewed it as a pass that [says,] 'We no longer need to have outreach to black people.' It would have been a crippling blow. Because what people forget is that when the Supreme Court speaks in one area, people react in other areas."

Keli Goff is The Root's special correspondent. Follow her on Twitter.

Keli Goff is The Root’s special correspondent. Follow her on Twitter.