Affirmative Action in College Admissions in US

Winds of Change

Part I

The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”

–John Roberts, Chief Justice, US Supreme Court

On 29^th June, 2023 the Supreme Court of US struck down affirmative action in college admissions, declaring that race cannot be a factor for admissions. The  Court ruled, “however well-intentioned and implemented in good faith, the universities’ admission practices did not pass constitutional muster, and that race could no longer be considered in deciding which students to admit.”

The race preference or the race consciousness in college admissions that has been a defining feature of US universities for last 60 years, and which, as many believe, was a singular factor in bringing about campus diversity, stands demised. 

The Court, however, endorsed the need for such diversity but through new ways, compelling the  institutions of higher education to look for other ways to achieve student diversity.“Nothing in this opinion should be construed as prohibiting universities from considering an applicant’s discussion of how race affected his or her life, be it through discrimination, inspiration or otherwise.”, Chief Justice clarified.

Outcry of Disapproval

The judgment sent shockwaves across the country. The outcry of disapproval and disappointment was shrill and strident. They termed the glib framing of the issue of discrimination by the Court as drawing on a pernicious, false moral equivalence. ‘Blow to Diversity’, was a milder reaction. A more bitter response was calling the judgment a sad confirmation that America as a nation remains unwilling to reckon with the barbarity of their racial history.

And yet many also voiced optimism that they would find new ways to admit more Black and Hispanic students, despite evidence that eliminating the practice in the past has often led to steep decrease in their enrolment.

A Chequered Legacy

Almost 60 years ago, Affirmative Action was introduced in the United States under the administration of President Lyndon Johnson (1963–69) in order to improve opportunities for African Americans just as civil rights legislation was dismantling the legal basis for discrimination. The first federally instituted affirmative action policies came in under the landmark Civil Rights Act of 1964 and through an Executive Order in 1965.

In a historic commencement address at Howard University on June 4, 1965, President Lyndon Johnson laid out the intellectual and moral basis for affirmative action. He invoked a metaphor that remains resonant nearly 60 years later: “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.”

Possibly one of the most passionate and persuasive endorsements of the affirmative action. 

Johnson’s call did not go in vain. And the concurrent civil rights movement for racial justice, made many selective colleges and universities alter their admissions policies with the express intent of increasing the number of Black students. Affirmative action offered a way to take into account far-reaching differences in personal circumstances and to begin to right a historic wrong.

But the honeymoon of public support was brief. It met with a powerful backlash. As early as the 1970s, affirmative action was already facing legal challenges, with critics calling it “reverse discrimination”. The first major challenge was Regents of the University of California v. Bakke (1978), in which the US Supreme Court ruled (5–4) that quotas may not be used to reserve places for minority applicants if white applicants are denied a chance to compete for those places. This decision allowed colleges to use race as a factor of admission.

But the support and spirit was attenuating.  During 80s and 90s, the apex court gave increasing weight to claims of ‘reverse discrimination’ and significantly curtailed affirmative action policies. However, the constitutionality of affirmative action was confirmed in the landmark Bollinger decisions (Grutter v. Bollinger) of 2003.

The last major challenge to affirmative action was warded off in 2016, when the Supreme Court headed by Chief Justice Anthony Kennedy upheld an admissions program at the University of Texas at Austin, holding that officials there could continue to consider race as a factor in ensuring a diverse student body (Fisher v. University of Texas).

And now, in a 6-to-3 decision, the Supreme Court has consigned them to the grave. In a way, the judgment was not entirely unexpected. Since 2016, the overwhelming conservative composition of Supreme Court has produced some extremely controversial decisions. This latest verdict is a confirmation of this trend and has set off yet another political firestorm in the US.

Legally Infirm?

No, the legal infirmities in the Supreme Court order is not deemed the principal weakness in the order, politics and insensitivity is. In fact, the criticism of the judgment is surprisingly muted on this count. On the contrary, the legal soundness of the judgment is explicitly and implicitly acknowledged by legal experts. In a strict legal sense, then, the judgment perhaps musters a reluctant acceptance. 

Bad Facts Make Bad Laws

The cases that Supreme Court decided were primarily moved on behalf of  Asian Americans who argued that despite their candidatures being more meritorious, they were losing out to much less deserving black and Hispanic communities. David French, a vocal supporter of Affirmative Action, explains in an article that  why Harvard lost — and why race-based affirmative action in public colleges and federally funded private schools is now unlawful, is because of two key facts. First, the evidence is overwhelming that Harvard actively discriminated against Asian applicants. As Chief Justice John Roberts notes, “ a Black student in the fourth-lowest academic decile had a higher chance of admission to Harvard than an Asian student in the top decile.” Secondly, Harvard specifically rejected alternative, race-blind formulations that could have achieved comparable student diversity. As Justice Neil Gorsuch notes in his concurrence, “Harvard could nearly replicate the current racial composition of its student body without resorting to race-based practices,” if it gave socioeconomically disadvantaged students just half the advantage it gave recruited athletes and if it eliminated preferences for “the children of donors, alumni, and faculty.” A very strong indictment of Harvard’s willing weakness for legacy preferences, but absolutely true, even unconscionable.  

The Challenge of Finding Other Ways

But what the verdict does, is to compel the state and the society to find better ways to bring about racial diversity in the realm of education. Only it is disruptive and disturbing to many. The onus now, is on the law makers, the government and on those who have been opposed this affirmative action. And as much on those who favour and support affirmative action, for, they must ensure that they are a fitting claimant of this racial consciousness, they and their future generations.

Broader public opinion in US favour affirmative action based on economic class  rather than race-conscious policies. A  recent Washington Post poll showed that 62 percent of Americans believe that students from low-income families have an unfair disadvantage in getting into a good college. And yet affirmative action alone on its own, whether based on race or economic class, is far too limited a tool to realize the dream of the great civil rights movement of the 1960s for full racial equality. To recall Dr. Martin Luther King Jr.’s admonition, “to produce real equality, the movement must address itself to the question of restructuring the whole of American society.”

Given the fact that the past evidence in US, from  States that previously outlawed affirmative action did not improve racial diversity casts a shadow on future. 

The new initiatives may be a tall order. 

But haven’t pathbreaking reforms always emerged out of impossibly hopeless situations? This one is not so hopeless.

(To Be Continued…)