Since its genesis in Executive Order 10925, authored and signed by former President John F. Kennedy, race-based affirmative action has garnered robust and divisive debate. As originally crafted by former President Kennedy, race-based affirmative action is a policy that encourages people to consider the consequences of the ingrained history of racism and discrimination Blacks have and continue to suffer from as decisions are made about education, employment, and contract opportunities. This policy was first applied in higher education admissions in the late 1960s. Regents of the University of California v. Bakke (1978), the first United States Supreme Court case involving a challenge to race-based affirmative action in higher education admissions, upheld it as constitutional, although racial quotas were declared unconstitutional.
Unfortunately, on June 29, 2023, in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College (2023) and Students for Fair Admissions, Inc. v. University of North Carolina, et al. (2023), the six conservative United States Supreme Court justices eviscerated 45 years of legal precedent allowing race-based affirmative action in higher education admissions by declaring the explicit use of race in higher education admissions unconstitutional. The Court’s rulings that the direct use of race in higher education admissions violates the Equal Protection Clause of the Fourteenth Amendment are deeply flawed.
These rulings’ most conspicuous defect is their incongruous relationship with the Fourteenth Amendment’s history. Although the six conservative justices are ideologically averse to employing race in ways that help to remedy the enduring effects of slavery and Jim Crow on Blacks, the Fourteenth Amendment was created for Blacks to require states to extend all provisions and safeguards of the Constitution to them. Without racism and the social and ideological construction of race, the Fourteenth Amendment was not thinkable. All six conservative justices champion Originalism, a judicial philosophy that expresses fidelity to interpreting laws and the Constitution in their original contexts.
Originalists, those who identify Originalism as their dominant judicial philosophy, posit that laws and the Constitution mean precisely what they did when they were first devised. These six Originalists, therefore, are to pay sincere homage to history, custom, and tradition. Regrettably, they abandoned the race-conscious origin and purposes of the Fourteenth Amendment to satisfy their political allegiances and philosophies. Further neglecting logic and Originalism, they acknowledged that explicit uses of race in admissions decisions at military academies are essential to racial diversity and national security, and these uses can persist. Essentially, the Court conveyed that if Blacks desire for their race to be considered in higher education admissions, they must be willing to sacrifice their lives in military service.
While risking oversimplification and falling prey to Aristotelean binary thinking, two divergent sides of this debate exist with multifarious shades of nuance between them: one side contends that race-based affirmative action is necessary to achieve racially diverse student bodies in higher education, and the other side argues that it is reverse discrimination and undermines the spirit of meritocracy. Even though race-based affirmative action alone is inadequate to engender racial diversity in college and university classrooms, I assert that it must be used in higher education admissions to promote racial diversity.
One primary argument against race-based affirmative action in higher education admissions (and beyond) is that it constitutes reverse discrimination, unreasonably benefiting underrepresented groups, especially Blacks, at the expense of more qualified (White and now Asian) applicants. However, this position neglects the systemic barriers that have historically obstructed many Blacks’ educational and professional advancement. Race-based affirmative action supplies a means of fighting historical racial injustices by not pretending that admissions decisions before it was instituted were racially neutral. Race-conscious admissions have always existed, which is why most colleges and universities are predominantly White. Therefore, race-based affirmative action opponents have no problem with the racial preferences that have led to predominantly White institutions nationwide. Their egregious contradictions and vociferous objections to race-based affirmative action, a policy that advocates additional consideration of slavery’s and Jim Crow’s lasting effects on qualified Black applicants, expose their goal: to preserve white supremacy.
These race-based affirmative action opponents overlook the extensive research that has evinced that all students—regardless of racial composition—benefit academically and professionally from racially diverse classrooms, permitting them to be more equipped to succeed in a multiethnic democracy and workforce. Given that most race-based affirmative action opponents are White, their opposition to it is ironic: they deepen their knowledge of cultural history the most and receive the most preparation for participating in a multiethnic democracy and workforce by learning alongside Blacks and other racially minoritized individuals. Sadly, too many Whites let their conscious and unconscious commitments to racism and racist ideologies work against a race-based affirmative action policy that benefits them even more than Blacks.
Many race-based affirmative action opponents often assert that race-neutral alternatives, such as class-based or income-based affirmative action, can achieve the same racial diversity without the perceived injustices of explicit uses of race in higher education admissions. Arguments for class-based or income-based affirmative action are misguided, however. Class-based or income-based affirmative action alone cannot address the continuing effects of slavery and Jim Crow Blacks confront. These race-neutral alternatives dramatically decrease racial diversity in college and university classrooms. To resort to class-based or income-based affirmative action is to subject Blacks to more racial stigmatization. This racial stigmatization results in a disregard for the large Black middle class that loses any consideration of its race in higher education admissions because of its economic status. Race-neutral policies are scams and forms of racial discrimination that prevent increased racial diversity in higher education classrooms.
If policymakers, the American polity, and higher education administrators are genuine about achieving racial diversity in higher education classrooms, then expanding holistic admissions is the most powerful and practical solution to generating this diversity. Holistic admissions consider sundry factors, including race, to produce diverse student bodies. This approach permits a more nuanced understanding of applicants and empowers admissions committees to select more racially diverse applicants. By applying this strategy, higher education administrators grant themselves more flexibility to choose the students they want to fill their classrooms and leave themselves much less vulnerable to legal challenges.
In short, those serious about applying race-based affirmative action in higher education admissions to achieve racially diverse classrooms must become more imaginative to defeat legal challenges. The Court did leave open a critical window of opportunity for higher education administrators to continue to employ race in admissions decisions. Its rulings do not bar applicants from discussing their race in connection with courage, determination, inspiration, discrimination, etc., in admissions essays to emphasize qualifications and highlight the value they can bring to institutions. Many admissions committees are interested in the obstacles students have had to overcome.
Therefore, more weight and attention must be dedicated to admissions essays. Although race-based affirmative action will never be the panacea for achieving racially diverse higher education classrooms, it is an essential vehicle for assisting higher education administrators in fighting burgeoning racial inequities across colleges and universities nationwide. While the Court has declared war on race-based affirmative action, higher education administrators must commit to removing barriers to racial diversity, including eliminating standardized tests such as the SAT, ACT, GRE, and LSAT. Unfortunately, we have no time to lick our collective wounds. We must act!
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This Post is republished on Medium.
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Photo credit: iStock
