The End of Affirmative Action Sets Black and Latino Americans Back 50 years

Here's a Quick Overview of Affirmative Action and How an Out-of-Touch Supreme Court Ended the Diversity Pipeline

On Thursday, June 29th, the United States Supreme Court struck down college affirmative action programs - a significant win for conservatives who have led a two-decade-long goal to eradicate the view of race in the admissions process.

The 6-3 decision ruled the programs at Harvard and the University of North Carolina violated the Equal Protection Clause of the Constitution - Equal protection forces a state to govern impartially—not draw distinctions between individuals solely on differences that are irrelevant to a legitimate governmental objective. Thus, the equal protection clause is crucial to the protection of civil rights, however, it is being used to justify a process that lacks equity based on systemic racism.

A Brief History of Affirmative Action:

By Webster's definition, affirmative action is the use of policies, legislation, programs, and procedures to improve the educational or employment opportunities of members. of certain demographic groups (based on a broad range of identities, including race, sex, gender, religion, national origin, and disability) as a remedy to the effects of long-standing discrimination against such groups. This includes the hiring process, admission to institutions of higher education, the awarding of government contracts, and other social benefits.

Affirmative action was initiated by the administration of President Lyndon Johnson (1963–69) in order to improve opportunities for African Americans while civil rights legislation was dismantling the legal basis for discrimination. The federal government began to institute affirmative action policies under the landmark Civil Rights Act of 1964 and an executive order in 1965. Businesses receiving federal funds were prohibited from using aptitude tests and other criteria that tended to discriminate against African Americans. Affirmative action programs were monitored by the Office of Federal Contract Compliance and the Equal Employment Opportunity Commission (EEOC). Subsequently, affirmative action was broadened to cover women and Native Americans, Hispanics, and other minorities and was extended to colleges and universities and state and federal agencies (Britannica)

With affirmative action initially setting aside space to hit racial quotas for minorities by the 1970s, the term, “reverse discrimination” became the new reason to challenge the action. The first major challenge was Regents of the University of California v Bakke (1978), in which the U.S. Supreme Court ruled that quotas may not be used to reserve places for minority applicants if white applicants are denied a chance to compete for those places. In a 2003 decision by the Supreme Court, known as Grutter v. Bollinger, the courts established a national precedent allowing schools to consider race when making admissions decisions.

In that ruling, the court found that affirmative action policies used in University of Michigan Law School admissions did not violate the Equal Protection Clause. Delivering the court's 5-4 opinion, Justice Sandra Day O'Connor wrote that "in the context of its individualized inquiry into the possible diversity contributions of all applicants, the Law School's race-conscious admissions program does not unduly harm nonminority applicants."

(Note: The Equal Protection Clause is the same clause used to strike down the affirmative action ruling by the current Supreme Court)

The Support of Affirmative Action:

Before the twentieth century, American colleges have been reserved for wealthy, predominately white Americans - mostly men. It was not until the inclusion of affirmative action that higher education became more accessible to minority groups - with the goal of promoting diversity and equity. But the promotion of diversity has been viewed as “anti-white,” a narrative used to challenge the action since its inception. While it has been proven time and time again to produce no harm to the admission of white students to elite universities, despite the claim, it has in fact produced an opportunity for minority students. The reasons for support of affirmative action, as outlined by the Center for American Progres, are:

• Students of color remain underrepresented on college campuses.

According to a New York Times article from 2017, it states that even with affirmative action in place, Blacks and Hispanics are more underrepresented at top colleges than 35 years ago with an analysis conducted including 100 schools ranging from public flagship universities to the Ivy League.

The share of black freshmen at elite schools is virtually unchanged since 1980. Black students are just 6 percent of freshmen but 15 percent of college-age Americans. More Hispanics are attending elite schools, but the increase has not kept up with the huge growth of young Hispanics in the United States, so the gap between students and the college-age population has widened.

(Note: As I write this, I live in Worcester, MA. Our Flagship, the lowest-cost university in our city is Worcester State University. With an approximate population of 5,700 students (62 percent women, and 38 percent men), the racial-ethic demographics for full-time undergraduate students are 65.3 percent white with only 13.5 percent Hispanic, 7.8 percent Black, and 5 percent Asian. This is in a city that is comprised of 53.8 percent people of color - including Black, African, Native, Mixed, and Hispanic ethnicities)

• Prioritizing diversity benefits students of all races.

Evidence gathered by the Century Foundation suggests that racially integrated classrooms can reduce students’ racial bias, improve satisfaction and intellectual self-confidence, and enhance leadership skills. These benefits may translate to better economic outcomes and, among other payoffs, prepare students to work in a diverse global economy, increasing the productivity, effectiveness, and creativity of teams.

• Affirmative action in education promotes diversity in ways a focus on income alone cannot

While income can and should be considered as part of a holistic evaluation of applicants, it should complement rather than supplant the consideration of race and ethnicity. Income can serve as a good indicator of a household’s ability to cover regular expenses, but it doesn’t tell the whole story about economic well-being and access to higher education.

Wealth makes it easier for families to relocate to better school districts, purchase test preparation books and classes, and pay or help pay college tuition. But centuries of systemic racism and intergenerational transfers have provided white households with far more wealth than households of color, even after controlling for income. In fact, middle-income white households typically have twice as much wealth as their Latinx counterparts and three times more wealth than their black counterparts. As a result, students of color (especially black students) are more likely than similarly situated white students to attend underfunded and high-poverty K-12 schools.

Even when students of color have wealthy parents or attend the same schools as white students, they experience the U.S. educational system differently. For example, students of color are less likely to be referred to “gifted and talented” programs, even after controlling for test scores, health, socio-economic status, and classroom and school characteristics. Schools are also more likely to suspend or expel students of color than white students. Beginning as early as preschool, these experiences can hinder social-emotional and behavioral development; limit educational experiences; obstruct the process of identifying and addressing underlying issues; and contribute to increased family stress and burden due to challenges in finding an affordable and suitable alternative placement.

• Affirmative action helps colleges take steps toward greater equity in admissions

• Affirmative action helps promote social mobility

Despite the barriers, low-income students and students of color, face to gain access to higher education, research has shown that once admitted to top-tier institutions, low-income students complete their degree at higher rates and earn almost as much as wealthy students postgraduation. These findings suggest that all students, regardless of background, benefit from the value top-tier institutions provide. So while some argue that low-income students and students of color may be overwhelmed by the academic rigor at selective colleges, research suggests the opposite.

What a Ban on Affirmative Action Looks Like:

The impacts of banning affirmative action are mostly visible at highly selective public schools, highlighting how underrepresented minority groups experience greater barriers to admissions.

Over 25 years ago, voters in California decided to ban affirmative action in admissions at public universities. The idea, adopted by conservatives who rationalized the term “reverse discrimination,” led to a significant drop in Black enrollment. According to a New York Times article, Black enrollment fell rapidly at the top schools in the University of California system. Before the ban, Black students made up 7 percent of the student body at U.C.L.A. By 1998, that figure had slipped to 3.93 percent. By the fall of 2006, the freshman class included only 96 Black students out of nearly 5,000. In 2022, it was up to 5 percent - but it remains significantly below what it had been more than 25 years ago.

Eight other states had since adopted this ban, and it showed similar results. According to the same New York Times article, the University of Michigan, Black undergraduate enrollment dropped to 4 percent in 2021 from 7 percent in 2006.

(Note: California has spent more than $500 million in outreach to underserved minority students since 2004 in an effort to address the gap, with little to no success.)

An amicus brief filed by the highly selective liberal arts schools, including Amherst, Wesleyan and Williams, said that “the percentage of Black students matriculating would drop from roughly 7.1 percent of the student body to 2.1 percent.”

In addition to losing access to higher education - predominately top-tiered higher education - Black and Latino students would lose intangible benefits as well. Natasha Warikoo, a professor of sociology at Tufts University and author of “The Diversity Bargain,” said to NBC News, that Black and Latino students who do get into more selective schools would also feel the brunt of a reversal.

“They will have a much smaller community of same-race peers, and are more likely to be the only underrepresented minority in a class and have less access to social networks that we know are important for students of color on their college campuses,” Warikoo said. “I really see it as this two-fold impact on Black and Latino students.” 

Asian Americans Used to End Against Affirmative Action:

Edward Blum, a conservative activist, and legal strategist - not to be confused as a lawyer - has created several cases against affirmative action and “legal attacks on civil rights,” according to the American Civil Liberties Union.

Blum helped orchestrate Shelby County v. Holder, the Supreme Court ruling that rolled back voting rights, making it harder for ethnic minorities to vote.

According to NPR, Blum had first cast two white women, most notably Abigail Fisher, to craft lawsuits intended to end affirmative action. Fisher claimed she didn't get into the University of Texas, Austin because of the color of her skin. Affirmative action, the argument went, was racist against white people. Fisher was an innocent victim unfairly losing out to people of color. The case failed as it was revealed that race did not play a role in Fisher’s rejection. With another sharp fail, Blum realized he needed a new face - one that was not white.

In 2015 Edward Blum, the conservative activist behind the push to end affirmative action, stood in front of a group of a dozen or so mostly Chinese Americans in a conference room in Houston.

He was introduced by the Houston Chinese Alliance's David Cao, who prefaced Blum's presentation with a quote from George Orwell's novella Animal Farm.

"All animals are equal, but some animals are more equal than others," Cao said, to a smattering of laughter.

"In admission to the American elite universities, it is no secret that Asians are less equal."

"I needed plaintiffs," he told the group gathered by the Houston Chinese Alliance in 2015. "I needed Asian plaintiffs."

In essence, the strategy worked. Before a predominately right-wing Supreme Court, Blum won the case. He won by pitting Asian Americans against Black and Latino communities with the use of false narratives.

"Is anti-Asian racism real? Yeah, absolutely," says OiYan Poon, a professor at Colorado State University who studies race-based admissions. "I have experienced it firsthand."

But according to her research, affirmative action is not the source of that racism.

"I've been pouring over the data for years," she says — including the admissions data of Harvard before the court in one of the case that just ended affirmative action. "There is no evidence that there's a practice of anti-Asian discrimination." (NPR)

Blum was able to work into the fears of preexisting notions of inequality that plague the Asian American community - like every other minority community. There has been a deep anti-Asian sentiment, especially with the introduction of the 2020 pandemic, and Blum was able to work this to his advantage.

(Note: Blum took this time to indirectly say, “See how the Black and Hispanic people are getting in your way?” to the Asian community and quickly abused their trust along the way. A maneuver executed by white men to countless groups of minorities to create a divide. Let’s not forget, this narrative is one that goes back to the era of freed slaves who were demonized by other groups for coming back from the war and “taking” jobs that belonged to other groups of people. This is a long, played-out narrative that continues to create a divide amongst people experiencing hate by the oppressor.)

Jeff Chang, a writer, and activist who has long fought for affirmative action, says that Blum has spoken on their behalf and has erased their history. "I feel like Asian Americans have been used,” he says.

Welcome to America’s new era of “separate but equal.”