The U.S. Supreme Court will soon rule whether colleges can give preference to racial minorities. What's at stake?
By The Week Staff |June 22, 2013
hen did affirmative action begin? President Franklin D. Roosevelt took the first step in 1941, when he issued a directive forbidding defense contractors from using racially discriminatory hiring practices. The words "affirmative action" — the idea that traditionally disadvantaged groups deserve special consideration — first appeared in a 1961 executive order from President John F. Kennedy regarding hiring by federal contractors. In 1965 President Lyndon Johnson signed an order requiring government contractors to identify and eliminate any barriers to employment of minorities. "You do not take a man who for years has been hobbled by chains, liberate him, bring him to the starting line of a race, saying, 'You are free to compete with all the others,' and still justly believe you have been completely fair," Johnson said. He advocated "not just equality as a right and a theory, but equality as a fact and as a result."
How did it expand from there? President Richard Nixon built on Johnson's legacy in 1969 with the "Philadelphia Order," which set specific goals and timetables for federal contractors to hire shares of minorities reflecting the racial makeup of their local area. State and local governments soon introduced affirmative action programs of their own, as did many colleges, some with great enthusiasm. In 1974 the University of California mandated that the entering class of the statewide university system aim to have the same share of minorities as the state's high school graduating class — that is, a quota. A white medical school applicant, Allan Bakke, sued the University of California at Davis, claiming he had been unfairly passed over for a less qualified minority applicant. The Supreme Court ruled in Bakke's favor in 1978, saying that the medical school's racial quotas violated the 14th Amendment's guarantee of equal protection. But the justices permitted universities to continue considering race as one of a broader set of factors.
When did the backlash begin? Ronald Reagan's election in 1980 proved a turning point. Like other conservatives, Reagan believed that racial preferences are just another form of discrimination and undermine the idea that America is a meritocracy, where hard work and talent are what matter. Advocating a "colorblind society," Reagan ended affirmative action requirements for federal contractors. But in 1986 the Supreme Court upheld affirmative action programs in Cleveland and New York state and endorsed the use of racial preferences to remedy past discrimination. Benjamin L. Hooks, then executive director of the National Association for the Advancement of Colored People, called the rulings a "significant rebuke to the Reagan administration's pernicious efforts to destroy affirmative action."
Was the opposition discouraged? No. Conservative opposition to "reverse discrimination" continued to grow. In 1996, a California referendum banned affirmative action in state employment and university admissions, and seven other states have since taken similar action. The Supreme Court again upheld the constitutionality of affirmative action in a divided 2003 ruling, but Justice Sandra Day O'Connor said for the majority that the need for such policies was waning over time. "We expect that 25 years from now," she said, "the use of racial preferences will no longer be necessary."
Does affirmative action work? The research has produced mixed results. Several studies have found that black and Hispanic students who attend highly selective schools have access to resources and employment networks they might never have had otherwise. A 1995 Rutgers study estimated that 5 million minority workers had better jobs because of racial preferences. But critics of affirmative action contend that the policy can cause "mismatches" of minority students to elite colleges for which they're not prepared. One 2005 study by a UCLA law professor found that 34 percent of blacks admitted to top law schools wound up failing to pass the bar exam, compared with 21 percent who attended less rigorous law schools. Supreme Court Justice Clarence Thomas, a fierce critic of affirmative action, said that as a Yale law student, he "watched the destruction of many kids" pushed beyond their capabilities.
Is there a better way? Some scholars say the biggest divide in U.S. society today is not race, but class. A study of the freshmen entering the 193 most selective colleges in 2010 found that two thirds came from the top income quartile, while only 15 percent came from the bottom half. President Obama has said that while he "undoubtedly benefited from affirmative action" in his own academic career, it would make no sense for his wealthy and privileged daughters to get special consideration upon applying to college. Richard Kahlenberg, a senior fellow at the nonpartisan Century Foundation, predicts that the era of race-based affirmative action will soon draw to a close. "We continue to struggle with racial discrimination in this country," Kahlenberg said, "but class has become a far larger impediment to a person's life chances than race."
Discriminating against Asians Racial preferences may have helped black and Hispanic students get into top schools. But have they also kept some Asians out? Asian students are overrepresented in elite universities; at Princeton and Yale, they make up more than 16 percent of the student body, even though Asians represent only 6 percent of the U.S. population. Yet if judged on scholarly merit alone, Asian students could make up 30 percent or more of students at these top universities — leading critics such as physicist S.B. Woo to charge that colleges take "a 'merit-be-damned' approach to limit the number of Asian students." Indeed, a 2009 study found that Asian students need to score 140 points more on reading and math SATs than whites, 270 points more than Hispanics, and 450 points more than black students to have the same odds of being admitted to college. Many Asian students now refuse to divulge their race for fear of being rejected. Said Amalia Halikias, a Greek-Chinese student at Yale, "I didn't want to be written off as one of the 1.4 billion Asians that were applying."