When the Supreme Court first ruled that universities could consider race in their admissions process, in the 1978 University of California Regents v. Buckeye, nine judges wrote six opinions between them. Court divisions were indicating an enduring uncertainty in the debate about affirmative action, which will return to the Supreme Court in oral arguments next week: not always a consensus among its proponents. What is the confirmation action.
First, affirmative action may be a form of reparation, redress for African Americans after centuries in which they were enslaved and then denied equal protection under the law. This is the implication of Lyndon Johnson’s famous Howard University address, in which he described the unfairness of freeing a man “chained” for years without letting him “you are free to compete with all others”. Provided redressal. It is the most obvious moral case for affirmative action—that the multi-generational consequences of slavery and Jim Crow require exceptions to, for the time being, official principles of non-discrimination.
But there are difficulties in this simple case. This conflicts with the most direct reading of the Civil Rights Act. This makes affirmative action a policy with a relatively narrow constituency. It suggests to young, ambitious African Americans that they need liberal paternalism to be successful. And that implies a date of final sunset, as Johnson’s argument becomes less compelling with each succeeding generation of beneficiaries.
To answer these difficulties, a different theory enters: rather than a case of reparation, explicitly tied to slavery and segregation, it refers to a generalized racial diversity as an educational need, a mind-opener. Having on-campus experience is essential, and so should be considered by some admissions offices.
This is the theory put forward by Lewis Powell, the author of the Buckeye rule. It was upheld by Sandra Day O’Connor in the 2003 Gutter v. Bollinger. It has been adopted by universities as an organizing concept, a mantra, a vision of the highest academic good.
And for understandable reasons. Diversity logic reduced the tension of affirmative action with the letter of the law. This created a large constituency for policy, as any minority minority could theoretically benefit. This blurred the effect of the policy, so that African American students would not feel alone for censure. And it didn’t necessarily mean a sunset, despite O’Connor’s stated hope that one would come by 2028: as long as racial inequality persists and diversity remains essential, the policy can continue.
Meanwhile, from the standpoint of university selfishness, racial diversity promised to be a legitimate force for merit. By ensuring adequate representation from each major ethnic group, elite schools were freed from the fear that if their graduating classes did not look like a changing America, at some point America might look elsewhere for the ruling class.
But the emphasis is on what has become a major problem with the approach to how graduates look, which, after decades of talk of diversity, one can see that the elite student body is as stratified and perpetual as ever. There are different – clearly lacking in class diversity, ideologies and ideas. And as with the reappraisal argument, the general search for racial diversity clearly does not answer the problem that Lyndon Johnson identified, as a descendant of the Nigerian upper class may be a beneficiary rather than a descendant of American slaves.
All of this helps to explain why so much cynicism attaches to academic diversity rhetoric; This is one reason why affirmative action is consistently unpopular politically.
But it is claimed that universities discriminated against some minority applicants, particularly against Asian Americans, to jeopardize the system.
The Asian American case has divided the pan-ethnic constituency of affirmative action—at a certain point not all minority engineers benefit from diversity, it turns out. It has publicized specific numbers, the advantages and disadvantages, behind the euphemistic language of “considering caste” for different racial or ethnic groups. And by bringing up the memory of the Ivy League’s Jewish quota, it emphasizes the selfish discrimination habit of academics, its recurring fear that too many brands of a certain group, Optics, will ruin the image.
Over time, I have become more sympathetic to the initial argument in this column, the idea that the effects of slavery are enough to justify some continued reappraisal, whether or not affirmative action is the best means.
But the question before us is not whether the entry preference for African Americans should continue. The system on which the Supreme Court will decide has become a strange monster of elite self-interest and self-esteem, tainted with anti-Asian bigotry and shot down with unstoppable tension. Whatever comes next, it probably deserves to fall.