The End of Affirmative Action.

“No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

If civics class is a distant memory, that’s the pertinent part of the 14th Amendment that guarantees equal protection for all U.S. citizens under the law. This amendment is at the center of the debate raging over affirmative action, a policy that allows organizations the discretion to determine policy, such as admission standards at colleges and universities, based upon race, ethnicity, gender and other qualified characteristics. The current cases, combined into one that was recently argued at the Supreme Court, might spell the end for affirmative action as we know it in this country.

Chapter One: Affirmative action has always been hanging by a thread.

“There are those who contend that it doesn’t benefit African Americans to get them into the University of Texas where they do not do well. As opposed to having them go to a less advanced school, a slower track school, where they do well. One of the briefs pointed out that most of the black scientists in this country don’t come from the University of Texas. They come from lesser schools where they do not feel that they’re being pushed ahead in classes that are too fast for them. I’m just not impressed by the fact that the University of Texas may have fewer, maybe it ought to have fewer and maybe some, you know, when you take more, the number of blacks, really competent blacks admitted to lesser schools turns out to be less. And, and, I don’t think it stands to reason that it’s a good thing for the University of Texas to admit as many blacks as possible.” -Justice Antonin Scalia, 2015.

The quote above was uttered by deceased Supreme Court judge and supreme racist, Antonin Scalia; questioning the attorney for the defendant in Fisher v. University of Texas at Austin. This was the second go around for Fisher in front of the Supreme Court, one of the most notable cases against affirmative action.

In 2008, a young woman in Texas named Abigail Fisher was denied admission to UT Austin based upon a formula derived by the university, whereby the top 10% of graduates within Texas would be automatically accepted, and race—among other standards—would be considered for anyone outside of this tier. Fisher argued that, on merit, she would have been admitted, as she was just outside the 10% and had a solid list of extracurricular activities and interests, and that she was excluded from attending because, “she was Caucasian.”

The case was first heard by the court to determine whether the appellate division had applied the correct standards to the case. In a 7 to 1 decision, with Elena Kagan abstaining, it was remanded to the Fifth Circuit under a more narrow guideline called “strict scrutiny.” When the Fifth Circuit once again decided in favor of the university, the Supreme Court decided to hear the case again in 2015. That’s when Scalia offered this unvarnished racist line of questioning. The university narrowly survived the appeal—even with Kagan on the sidelines due to a conflict of interest—because Scalia died before the decision was handed down.

Affirmative action has been the subject of debate for a long time. While the concept is mostly understood today in the context of university admissions, the phrase first appeared in the Wagner Act of 1935, which established the National Labor Relations Board (NLRB). According to Smithsonian Magazine, the law was explicit in its denunciation of discriminatory labor practices and required companies to “take such affirmative action including reinstatement of employees with or without back pay” in cases of discrimination.

After the Wagner Act was passed, it took nearly 30 years for any president to use the term in our modern context, according to the magazine, citing JFK’s Executive Order 10925 in which he said government contractors “take affirmative action to ensure that applicants are employed and that employees are treated during employment, without regard for their race, creed, color or national origin.”

The term became more ubiquitous during LBJ’s term and was, ironically, bolstered by Tricky Dick, who issued his own executive order on equal employment in 1969.

For much of the 20th Century, the concept of affirmative action was relegated to the workforce, which had historically been inaccessible to large swaths of Black America. Before JFK’s executive order on fair employment practices, it was FDR in June 1941 who was pressured into issuing an order banning discrimination in defense industries and government in response to A. Philip Randolph’s threat of a massive march on Washington amid the build-up to the country’s entrance into World War Two.

Before we dig into the case in front of the Supreme Court, and the likelihood that they are about to end this historic policy, I think it’s important to work through some crucial concepts and language.

In the historical sense, as we’ve just run through, affirmative action has been more of a preventive policy designed to root out discriminatory practices. In this sense, the term itself is kind of a misnomer and holds a different meaning than the concept the Supreme Court is deciding, which is far more narrow. You have this standard of the 14th Amendment, primarily created to extend rights to formerly enslaved people in the United States, and hundreds of cases that rest on this logic to either affirm or deny rights. In the case of anti-discrimination legislation or executive orders, most references to affirmative action are to affirm the anti-discriminatory nature intended by the 14th Amendment.

So this is an important distinction, because the word “affirmative” is positive in nature. It’s affirming, deliberate. Whereas anti-discrimination is inherently negative and defensive. It’s “do this” versus “don’t do this.”

That strikes at the complicated nature of what this current case is all about. If universities were still denying people based upon race, gender or ethnicity, it’s a slam dunk “don’t do this” because it violates the equal protection clause of the 14th. But when a university actively admits or “affirms” the rights of a particular class over another, it’s taking a positive or affirming action. Conservatives, and even some liberals, however, argue that the flip side of this affirmative action is necessarily the denial of someone else’s rights based on the same logic. Your affirmation is my denial.

The reason I’m being so specific about this point is because the precedent that has held together affirmative action by a thread is one that both sides originally felt they lost and won. And it all came down to the interpretation of the 14th Amendment, a justice that shocked everyone who knew the courts, and one of the lions of the legal profession who simultaneously saved affirmative action and planted the seeds for its eventual destruction.

Chapter Two: Everyone’s a winner, everyone’s a loser.

Here's an excerpt from a discussion between Archibald Cox and William Rehnquist regarding Regents v. Bakke:

Cox: “The objective that impresses itself on my mind, partly because Dean Lowrey testified and partly because I am at least in part an educator, is the importance of including young men and women at both undergraduate colleges and the medical schools so that the other young boys and girls may see, yes, it is possible for a black to go to the University of Minnesota, or to go to Harvard or Yale. This is essential if we are ever going to give true equality in a factual sense to people because the existence or non-existence of opportunities, and surely we all know, shapes people’s aspirations when they’re very young.”

 

Rehnquist: “Mr. Cox, what if Davis Medical School had decided that since the population of doctors in the, among the minority population of doctors in California was so small, instead of setting aside 16 seats for minority doctors they would set aside 50 seats until that balance were redressed and the minority population of doctors equaled that of the population as a whole. Would that be any more infirm than the program that Davis has?”

 

Cox: “Well, I think my answer is that there’s no reason to condemn a program because of the particular number chosen.”

This is the thread that has held affirmative action together since 1978. It’s the thread conservatives have been trying to cut, and liberals have been hanging onto, since this moment. In this brief exchange between famed attorney Archibald Cox, whom many consider to be one of the greatest presenters in history, and conservative justice William Rehnquist, holds within both the basis for upholding affirmative action and its biggest weakness. Threading the needle in the end is an unlikely figure named Lewis Powell, whom we’ve covered before in rather unflattering terms. More on him in a moment.

The beginning of Cox’s statement to the court contains the logic upon which the liberal side of the court, with Powell as the deciding vote, sided with. The idea that it was necessary for white students to exist within a pluralistic structure to better prepare them for the real world and to demonstrate to other Black Americans, in particular, that higher education in the United States is attainable. Both are arguments based upon modeling, rather than correcting a historical wrong, which is the direction many liberals hoped the court would head.

In this way, Cox understood a few things. The first was the composition of the court. In his research, Cox lined up the justices based upon their prior rulings and ideological leanings. In his estimation, the idea of “righting a historical wrong” was a losing proposition. Not that he didn’t include this in his oral arguments, mind you. But he was cognizant that the conservative wing of the court wouldn’t see this logic in a favorable light. This was after the Civil Rights Act, Voting Rights Act and other decisions painstakingly won by Thurgood Marshall over the years. And it should be noted that Marshall was still on the bench for this decision.

On the other hand, Rehnquist pursued an important line of questioning that derailed a complete victory for the liberal wing. The idea that the University of California had determined a hard number meant that it had created a quota of sorts. So Rehnquist pushes Cox to consider what might happen if they expanded the quota. In other words, is there a limit to the actions one could take in affirming the rights of minorities that would test the boundaries of equal protection? It was a brilliant and tough take.

Allan Bakke was a competent engineer who honorably finished military service and decided that he wanted to enter the field of medicine. He was twice rejected from the University of California Medical School at Davis and sued the university, claiming he was denied equal rights. Adding to the layers of this particular case is the concept of Constitutional rights and statutory rights, something the court fought bitterly over when hearing this case.

A statutory right is granted under state or federal law and cannot violate a constitutional right.

A constitutional right is granted equally to all citizens of the United States as outlined in the Constitution, mostly in the Bill of Rights.

A difference without a distinction? Not really. The original Bakke case took aim at Title VI of the Civil Rights Act of 1964, which forbids racial or ethnic preferences in programs supported by federal funds. So, whereas constitutional rights are broad, statutory rights attempt to apply them specifically at the state and local level. These rights are updated and clarified over time through decisions and precedents that seek to incorporate a multitude of circumstances that were impossible to enumerate in the Constitution, but with an eye toward upholding the spirit. It’s tricky.

What’s fascinating about this case, among other things, is that the University of California was in favor of it going to court. Like many other colleges and universities, UC was sensitive to the historic wrongs and desirous of doing its part to correct them. But it also had a university to run, and the diversity question was nebulous and confusing. They sought clarity as much as Bakke sought a fair shake to pursue his dream. For his part, Bakke never once indicated personal feelings about the case and has never spoken publicly about it. He did go on to attend medical school and enjoy a full career in the medical profession, by the way.

In this way, this case was tried with the best of intentions, but that doesn’t mitigate the implications of the decision on an increasingly tense nation.

Here’s how the decision played out. The court first had to decide whether to pursue a narrow statutory framework or a broader constitutional one. The difference would have triggered a strict test of equal protection and the threat to a fundamental right or a more moderate approach of heightened scrutiny, which allowed for nuance. We're not constitutional scholars, so we’ll leave the description there. Suffice to say, the less strict interpretation was pursued, which left wiggle room in the discussion for the surprise deciding vote cast by Lewis Powell.

Recall in our coverage of the infamous Powell Memo that Lewis Powell was a corporate lawyer and shill for the corporate class generally, who implored the Chamber of Commerce to beat back the working class, liberal institutions of higher learning and consumer advocates. He was rewarded by Nixon with a seat on the highest court of the land, despite never having argued a case in front of it. More importantly, in his prior life as the head of a school board, he fought fervently against integration. So, appealing to Powell was a gamble on Cox’s part, to say the least.

What Powell objected to the most was the idea of quotas, which you saw in the second part of Rehnquist’s question to Cox. He therefore ordered Bakke to be admitted to the University. However, he was swayed by the argument that a competitive process could take into account racial diversity in order to create a pluralistic environment, and that it was a college’s right to strive for such conditions so long as a particular quota did not definitively foreclose on anyone’s opportunity.

As Emily Bazelon writes in a recent New York Times Magazine article, “Though Cox had no way of knowing it, his diversity rationale would become the sole basis of affirmative action in constitutional law.”

Chapter Three: As usual, there’s a villain behind all this.

Since the Bakke decision, the Supreme Court has repeatedly ruled that race-conscious admission policies are constitutional, including in the 2003 case Grutter v. Bollinger. Just six years ago, the court rejected arguments against affirmative action and held that diversity is a “compelling interest” in Fisher v. University of Texas.

Interestingly, it was conservative Justice Sandra Day O’Connor who wrote the majority opinion in Grutter, and while she agreed that affirmative action was constitutional, she suggested that race-conscious admissions should be temporary, citing higher grades and improved test scores for minority applicants. That was in contrast to the views of former Justice Thurgood Marshall, who during Bakke, felt such policies would continue for “a hundred years,” according to Bazelon.

Not the case, argued O’Connor. She wrote:

“Accordingly, race-conscious admissions policies must be limited in time. This requirement reflects that racial classifications, however compelling their goals, are potentially so dangerous that they may be employed no more broadly than the interest demands. Enshrining a permanent justification for racial preferences would offend this fundamental equal protection principle. We see no reason to exempt race-conscious admissions programs from the requirement that all governmental use of race must have a logical endpoint.”

Well, today it seems that conservative activists have found their endpoint.

That the court seems poised to abolish affirmative action is partly the result of an activist base in the conservative movement that has been almost singularly focused on this issue for decades, as were elements hostile toward Roe. The aforementioned Fisher v. University of Texas case in 2015, along with the pair heard by the court last year—Students for Fair Admissions v. President and Fellows of Harvard and Students for Fair Admissions v. University of North Carolina—have been orchestrated by Edward Blum, a failed political candidate-turned-court activist.

Blum, who isn’t an attorney himself, is also the brainchild behind the court’s eventual gutting of the landmark Voting Rights Act. In 2013, the court ruled in a 5 to 4 decision that jurisdictions with a history of voting discrimination no longer had to receive “pre-clearance” from the federal government before changing their respective voting laws. Since then, at least three dozen states have enacted voter ID laws and hundreds of polling locations have been closed across the country—making it harder for people to cast a ballot.

How did Blum do it? Apparently, his approach was so simple that it was ingenious. The Times reported that he Googled areas that were coming under federal scrutiny and cold-called the county attorney of Shelby County, Alabama. After some research on the county attorney’s part, Shelby County decided to file the suit.

According to The New York Times, Blum is the puppet master behind two dozen lawsuits related to affirmative action and voting rights in recent years. In the Fisher case, Blum wasn’t shy about the fact that he was looking for a white student he could use to challenge the University of Texas at Austin’s admissions policies. His friend recommended his daughter, Abigail Fisher. While they lost the case, Fisher now sits on the board of Students for Fair Admissions, along with Blum. As the paper tells it:

“He is a matchmaker bringing together two forces: students and others who believe they are being mistreated in the name of racial justice, and conservative donors who finance his work and that of the high-powered, establishment Republican lawyers who take the cases to court.”

After reading that last bit, we naturally decided to follow the money. Students for Fair Admissions, which Blum founded, received at least $7.7 million in contributions between 2016 and 2020, according to tax filings published by ProPublica. Additionally, The Times reported that an organization called Donors Trust, which helps fund conservative and libertarian efforts, gave nearly $2.9 million to “support” Blum’s work between 2010 and 2015. In an article published about a decade ago, Mother Jones described Donors Trust as “the dark money ATM of the right.”

The magazine added that Donors Trust “has steered hundreds of millions of dollars to the most influential think tanks, foundations, and advocacy groups in the conservative movement. Over the past decade, it has funded the right's assault on labor unions, climate scientists, public schools, economic regulations, and the very premise of activist government.” While the organization is the public face of the conservative dark money movement, it has shielded its own donors from scrutiny by keeping them anonymous. So it’s impossible to know who is really financing many of these conservative efforts, including the impending abolition of affirmative action.

As often happens, this is part of the story that rarely gets told during coverage of consequential court decisions: how money and influence shape our laws.

The two cases that could decide the fate of affirmative action were combined into one, and justices heard five hours of oral arguments last November. As is typically the case, the judges' questions and reactions provide reasonable clues to how they intend to rule, and to no one’s surprise, the conservative justices hinted at an end to affirmative action.

Let’s take Justice Clarence Thomas, who in response to the use of the word “diversity” during oral arguments said, “I have no clue what it means.”

When the term ‘underrepresented minority’ was uttered, Justice Samuel Alito, remarked: “What does that mean?”

I think we can all tell where this is headed.

Unlike these robed clowns, the justices who decided on Bakke understood the concept of diversity, given the extreme levels of racial discrimination that pervaded society at the time. And sure, things have improved for Black and Brown Americans in the ensuing decades, but there still remains staggering levels of racial inequality, including in education, jobs, and wealth distribution. O’Connor in 1993 opened the door for a future court to rule that, with discrimination purportedly on the decline, affirmative action, and similar policies, are effectively moot. Going back further, the diversity justification that appealed to Powell in 1979 seems to be the very thing that could seal the policy’s fate in 2023.

Chapter Four: The unlevel playing field.

To rule on the basis that discrimination is less awful than it was decades earlier is to ignore reality or plead ignorance. And the Supreme Court, a federal branch of government, doesn’t have to go far if it wants to access data on racial disparities in the country: According to the Federal Reserve, “the average Black and Hispanic or Latino households earn about half as much as the average White household and own only about 15 to 20 percent as much net wealth.”

Crucially, as the Fed points out, the racial wealth gap has actually widened over the past few decades. To that point, the Economic Policy Institute said that in 2019, Black workers earned almost 25% less per hour than the average white worker, which represents a larger gap than in 1979—one year after the Supreme Court’s decision in Bakke. The more you dig, the worse the disparity gets: While productivity has increased by nearly 70% since 1979, median wages have only increased by 14%, according to the Economic Policy Institute. White workers, meanwhile, have experienced a 20% median wage bump, compared to 5.2% for Black workers—and that’s over the same time period that affirmative action has been in place.

If the court goes by Sandra Day O’Connor’s logic, then educational disparities should’ve leveled out since the court’s 1993 ruling on race-conscious admissions policies. Well, according to an analysis by Brookings, “educational experiences for minority students have continued to be substantially separate and unequal.” Here’s more of what researchers found:

“Two-thirds of minority students still attend schools that are predominantly minority, most of them located in central cities and funded well below those in neighboring suburban districts. Recent analyses of data prepared for school finance cases in Alabama, New Jersey, New York, Louisiana, and Texas have found that on every tangible measure—from qualified teachers to curriculum offerings—schools serving greater numbers of students of color had significantly fewer resources than schools serving mostly white students.”

Obviously, the systemic issues that impacted minority communities for decades haven’t been solved by affirmative action programs—and that’s because centuries of mistreatment, discrimination, and outright racism are impossible to solve with a single policy prescription. But gutting affirmative action would leave thousands, if not millions, out of the schools and programs that give them a chance to succeed. Just as the demise of Roe spawned more restrictive abortion policies across the country, in red states in particular, the end of affirmative action will make it more difficult for universities to diversify their student bodies—something they argue enhances learning.

We know that states like California and Michigan have spent millions of dollars in outreach and other programs to improve diversity after race-conscious admissions practices were banned in those areas. Let’s use California as our example. As the most populous, and one of the most diverse, states in the country, the Golden State has been living the reality that many conservatives are trying to force on the rest of the nation.

In 1996, California voters approved a referendum banning race in admissions decisions at public universities. In an amicus brief filed in support of Harvard and the University of North Carolina, lawyers for the University of California said the ban resulted in at least a 50% decrease in enrollment from students in “underrepresented minority groups.” The system has tried various efforts to improve diversity—which it still sees as part of its mission—including “holistic” admissions policies, expensive outreach efforts, and other programs. Despite their best efforts, there’s been a noticeable drop in diversity since the 1996 ban, which the university says has been particularly harmful to Black, Latino, and Native American students, who they report feeling “racial isolation.”

In fact, the university said the ban’s impact was “immediate and widespread.” More than two decades after being prohibited from applying race-conscious decisions in their admissions policies, the University of California still believes that a diverse student body “enhances the ability of the University to accomplish its academic mission,” according to its amicus brief. In laying out its reasoning, the university cites O’Connor’s own words in the Grutter decision:

“Just as growing up in a particular region or having particular professional experiences is likely to affect an individual’s views, so too is one’s own, unique experience of being a racial minority in a society, like our own, in which race unfortunately still matters.”

The same conclusion can be made today, though it appears increasingly unlikely that O’Connor’s argument in Grutter would sway any of the conservatives on today’s court. And that leaves universities to pick up the pieces. We mentioned how the University of California has responded, specifically with costly outreach efforts, which it says has cost the system an estimated half a billion dollars. It has also tried an “eligibility in local context” policy, meaning a certain percentage of academically eligible students are guaranteed admission to one of the system’s nine undergraduate campuses.

The university also implemented a “holistic review” and eliminated the use of standardized tests. Despite everything, the system admitted that true progress remains “elusive” and that demographic data at its campuses, compared to high school graduates in 2019, reveals stark disparities that undermine UC’s ability to provide the educational benefits of diversity.

In other words, it ain’t really working.

Chapter Five: Bring it home, Max.

The devastating decision by the U.S. Supreme Court last year to overturn Roe v. Wade was unquestionably the biggest blow to American rights in decades, with people stripped of their bodily independence. It crystallized all the fears we had about the ever-growing right-wing movement to capture the judiciary, including lower courts across the country.

The overturning of Roe also confirmed long-held complaints by many in progressive circles that the Democrats were ceding control of the courts—perhaps out of sheer negligence or, more likely, massive overconfidence in their ability to win elections and, in effect, shape policy as the perpetual occupants of the White House.

2016 proved that such thinking is a farce, and maybe in a cruel, sadistic way, we can thank Trump for exposing the Democratic Party’s corrupt thinking. Trump was—and still is, mind you—a symptom of an insidious disease that has plagued this country for decades. Biden, for all the credit we want to give him for beating Trump, was not the cure—he was an ointment on a cancer that has spread through our body politic, one that has infected nearly all institutions ostensibly entrusted with serving the American public: the courts, corporate-captured regulatory agencies, the mainstream media, and much more.

It’s no surprise that a plurality of Americans has lost faith in these very institutions, giving figures like Trump an opening to fill the yawning void. Money and influence decide what becomes law, who lands a lifetime appointment on the most powerful court in the world, and what is considered newsworthy.

When white people think about affirmative action today, it’s largely pejorative. That’s unscientific, of course, just an anecdotal reflection of my experience. It’s not necessary. It’s outdated. Quotas are bad. You can only get ahead these days if you’re some sort of minority. There’s nothing racist about a meritocracy. The playing field is level, after all, we even had a Black president. White culture has turned the tables and adopted the posture of the aggrieved, the put upon, the subjected. Statistics and facts don’t matter.

The most serious questioner in the current case has been newcomer Ketanji Brown Jackson, who set a rhetorical trap regarding legacies. Pointing out that status of a legacy could be considered in the constellation of non-meritocratic factors for admission, she posed a hypothetical situation. Two kids, both fifth generation North Carolinians. One white, who would be the 5th generation to attend UNC; one Black, who would be the first to attend because prior generations were specifically excluded. Whose story is more compelling? The attorney’s response was that it didn’t have to be taken into consideration and, in saying so, fell directly into Jackson’s trap.

If legacy status didn’t have to be considered, then it also meant that it could be. By the same logic, race shouldn’t have to be considered either. But it also could be. In this one line of questioning, Jackson exposed the entire gambit. It was never about equal protection, clarifying statutory or constitutional rights, righting a historical wrong or even declaring an end to the need for affirmative action. It’s simply about taking away the ability for a university to consider all of these things to build a more pluralistic society that offers a chance to historically marginalized citizens. To claw back hard fought rights and opportunities. Because they don’t want pluralism. They want whiteness. And that’s what they’re going to get.

Here endeth the lesson.