Opinion: The End Of Affirmative Action

Michael Jefferson.

The policy known as Affirmative Action” is now a thing of the past. On June 29, the Roberts Court, in a highly anticipated decision, killed it. For this writer, it was a horrible decision. 

It joins the ranks of the worst decisions of the Court headed by Chief Justice John Roberts, including but not limited to: Citizens United v. FEC (2010); Shelby County v. Holder (2013); Janus v. AFSCME (2018); Dobbs v. Jackson Women’s Health Organization (2022); and Kennedy v. Bremerton School District (2022). I am confident history will condemn them all.

Since its inception affirmative action has been used by both private and public universities to address past and present discrimination against Blacks and students of color. It has also been used as a means to diversify its student bodies by using race as a factor in selecting incoming students.

Similar admission policies, including those reserved for children of graduates of a given university, known as legacy” students; gifted athletes; children of faculty and staff; and children/relatives of major donors, remain untouched. A 2019 study published in the National Bureau of Economic Research found that 43 percent of white students admitted to Harvard fell into one of the abovementioned categories.

The numbers dropped significantly for Black, Latino and Asian-American students. Less than 16 percent each come from those categories. The study also concluded that 75 percent of those whites admitted from those categories would not have been accepted if they were vetted through the regular admission process.

Interestingly, in the cases at hand, the Court carved out an exception in its decision for military academies (i.e. West Point, Annapolis, U.S. Air Force Academy). Associate Justice Kentaji Brown-Jackson, the first Black woman to sit on the Court, rightfully pointed out this exception in her dissent (joined by Associate Justices, Sonia Sotamayor and Elena Kagan). She wrote: The Court has come to rest on the bottom-line conclusion that racial diversity in higher education is only worth potentially preserving insofar as it might be needed to prepare Black Americans and other underrepresented minorities for success in the bunker, not the boardroom (a particularly awkward place to land, in light of the history the majority opts to ignore).”

At issue were two cases. Students for Fair Admissions, Inc. v President and Fellows of Harvard College and Students for Fair Admissions v. University of North Carolina (UNC). The Harvard case was decided 6 – 2. The majority, all appointed by Republican presidents included Roberts and Justices Samuel Alito, Clarence Thomas, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett. Those dissenting included Kagan and Sotomayor. Jackson recused herself due to her role as a former six-term member of Harvard’s Board of Overseers.

The UNC case was decided 6 – 3 with Jackson joining the dissent. In a scathing 69-page dissent Sotomayor wrote, Today, this Court stands in the way and rolls back decades of precedent and momentous progress.” She was joined by Kagan and in part by Jackson. Kagan, Sotomayor and Jackson were all appointed by Democratic presidents.

For his part and what can best be described as appalling gall, Thomas wrote in a concurring opinion for the majority: the Constitution is color-blind and neither knows nor tolerates classes among citizens.” He went on to add, The Court today makes clear that, in the future, universities wishing to discriminate based on race in admissions must articulate and justify a compelling and measurable state interest based on concrete evidence…Given the strictures set out by the Court, I highly doubt any will be able to do so.” 

It should be noted, Thomas was admitted to Yale Law School as part of an affirmative action initiative. His rise to power can be directly attributed to the circles he accessed due to his Yale affiliation and conservative leanings. Additionally, it has recently been revealed by ProPublica, a non-profit newsroom that investigates abuses of power, that during his 32 years on the bench, Thomas has been the beneficiary of luxury vacations, including an unreported voyage on a yacht, 26 private jet flights, eight helicopter rides, VIP passes to professional and college sporting events, etc. all underwritten by ultra-wealthy benefactors who presumably share his ideology. In short, Thomas has led a lifestyle that most Americans can only dream of and one that far exceeds what his annual income can provide.

However, despite being a beneficiary of affirmative action (and largesse from white billionaires), Thomas has spent his entire tenure on the nation’s highest court fighting to dismantle affirmative action. He previously dissented in a 2003 case, Grutter v. Bollinger, in which the court upheld affirmative action. The decision in Students for a Fair Admission effectively overturns Grutter. Thomas, America’s foremost Black defender of white supremacy, can now finally claim victory.

As for the petitioner in both cases, Students for a Fair Admission (SFFA), its founder describes the entity as a non-profit legal advocacy organization founded in 2014 for the express purpose of abolishing affirmative action admissions policies at schools. The students” in the Harvard case were an anonymous group of Asian American students who were rejected by the admission process. In the case involving the University of North Carolina the rejected” students were white and Asian.

It is instructive to note, the group’s founder — Edward Blum, a financial adviser by trade (he’s not a lawyer) and a former mayor of a small city in Southern California — is also the founder of Project on Fair Representation. The goal of this organization is to end racial classifications in education, voting procedures, legislative redistricting, and employment.

Blum was the chief strategist for the petitioner in another landmark case mentioned earlier, Shelby County vs. Holder. In a 5 – 4 decision the court struck down a key provision in the 1965 Voting Rights Act allowing states with a history of discriminating against Blacks in voting to no longer be subjected to pre-clearance” before implementing changes to their voting laws. The outcome has been disastrous for Blacks and other ethnic minorities. Thousands of polling places have been closed in these states, strict voter ID laws have been enacted and purges of voting rolls are just a few of the barriers that have been enacted since the ruling.

In the case against Harvard University the petitioner (SFFA) makes the claim that affirmative action policies discriminates against Asian-Americans in the Harvard admission process. However, not one Asian American plaintiff came forward to make this claim and the lower court found no evidence of discrimination against Asian Americans and the appellate court agreed.

Where do Americans stand? In a poll taken by The Associated Press-NORC Center for Public Affairs Research prior to the Court’s decision a majority (63 percent) of Americans opposed the ban on affirmative action for college admissions. Since the ruling an ABC News/Ipsos poll found the following: 52 percent approve of the ruling; 32 percent disapprove; and 16 percent had no opinion. The poll also found 75 percent of Republicans, 58 percent of Independents and 26 percent of Democrats approve of the ruling. Among racial groups 60 percent of whites, 58 percent of Asians and 40 percent of Hispanics approve of the ruling.

Only 25 percent of Blacks approved.

For me the numbers are not surprising but are quite telling. Here are my three takeaways from the decision. Firstly, I am reminded of the words of the late legal scholar and first Black tenured professor at Harvard law school, Derrick Bell, who wrote in his book Faces at the Bottom of the Well: Black people will never gain full equality in this country. Even those herculean efforts we hail as successful will produce no more than temporary peaks of progress,’ short-lived victories that slide into irrelevance as racial patterns adapt in ways that maintain white dominance. This is a hard-to-accept fact that all history verifies. We must acknowledge it, not as a sign of submission, but as an act of ultimate defiance.”

His words are powerful — honest, yet condemning — ominous but inspiring. If there was any doubt about America’s racial forecast it has been removed. The hoods are off, the fangs are on full display and the long awaited assault on decades of progress is in full effect. Stopping woke-ness” in its tracks and imposing a reactionary agenda on the nation is what their end game appears to be. Surviving it will be challenging but nonetheless, surmountable.

Those in the dominant culture who applaud the decision have speciously convinced themselves the country is unmoored from its brutal, racist legacy. Today’s America, they proclaim, is a color blind society where everyone is given an equal chance at advancement. Disparate treatment on the job, in the criminal justice system and public accommodations, to name just a few spaces, is miniscule at best or simply a figment of one’s imaginations.

I often wonder how many of those who embrace this fallacy if given a choice to start life over again and live fifty years as a white person or one hundred years as a Black person, would choose the latter.

Secondly, many (certainly not all) members of marginalized groups continue to make the age old mistake in believing that one’s quest for assimilation (i.e. to be white adjacent) will lead to an elevated social status and therefore more favorable treatment by the dominant culture. As I wrote in a previous article “[T]he racial caste system in America is a two tiered structure. White people occupy the upper tier then there is everyone else. And make no mistake about it, many (i.e. tens of millions) in the dominant culture are determined to keep it as such. Any attempt to alter the historical arrangement will be met with unyielding resistance.”

In making Asians the face of the anti-affirmative action cause (in education) the lead strategists in the two cases made a calculated decision to pit marginalized groups against one another to achieve their goal. They did so not because they view Asians as their allies but because by doing so it helps deflates the accusation of racism” emanating from the opposition’s camp. In other words, the thinking goes – it’s not racism when people of color help to undermine the progress of other people of color. 

Asians who support the decision should be mindful that any alliance with those in the dominant culture seeking to stem progress or roll back the clock on the gains of the civil rights movement will be short lived. Poll after poll highlight anti-Asian sentiment that has long existed in American society. This sentiment has become more noticeable since Covid-19 and the pandemic. Physical attacks against Asians are not decreasing but increasing.

Further, any significant confrontation by the United States with China will not bode well for Asians in this country. The dreadful decision in the case Korematsu v. United States should be a reminder to Asians and members of all marginalized groups in this country that we are never totally protected from losing our liberties.

After the attack on Pearl Harbor in December 1941 the U.S. thought it was a good idea to forcibly move those of Japanese ancestry living on the West Coast into relocation camps (i.e. concentration camps).

Despite Congress’ declaration of war against both Germany and Italy on December 11, 1941, no such effort was made to do the same for those of German or Italian ancestry anywhere in the U.S. President Franklin Roosevelt signed Executive Order 9066 in February 1942 authorizing the relocation. A man by the name of Fred Korematsu, a 23 year old Japanese-American citizen disobeyed the order and was arrested. He appealed his conviction all the way to U.S. Supreme Court where on December 18, 1944 the Court upheld his conviction. 120,000 men, women and children were relocated to some 26 sites in seven western states, including Washington, Idaho, Utah and Arizona. Two-thirds of those relocated were American citizens.

Thirdly, if we are to curtail the anti-progressive agenda and the avalanche of the accompanying legislation that is sweeping the country, members of marginalized groups and whites of good will must reject whole heartedly all aspects of tribalism.

Tribalism is a limited concept that in actuality only benefits the leaders and elites of the tribe. The rank and file are basically used to advance a political, economic, social and/or cultural agenda of the elite or become expendable fodder when danger mounts and bodies must be sacrificed.

Sadly, most members of the rank and file never get it – their ignorance on full display, they march lockstep to the beat of their political, economic, cultural or religious masters, who promise everything and delivers basically nothing to the unsuspecting masses of the tribe. Very few at the bottom of the tribal ladder pause to realize the commonality they share with the rank and file of other tribes.

Understanding that their own predicament (housing and educational challenges, food insecurity, unemployment, low wages, lack of health care, etc.) mirrors the dilemma of those similarly situated in other tribes can help to remove age-old barriers that have long prevented each from getting their share of a rapidly shrinking pie.

Failing to recognize this critical group dynamic will only prolong members of the rank and file incessant thirst and perpetual hunger for a better life for themselves and loved ones. The elites (i.e. oligarchs) understand this. It has long been in their collective interest to keep the rank and file of each tribe at the throat of the other. This of course secures their status at the top of the social, political and economic order.

The policy known as Affirmative Action” is no more but its demise offers an opportunity for something greater – an awakening of sorts — an emergence in the body politic that discovers its shared commonality.

A spectacular force consumed by the noblest of humanity’s tenets – impervious to mendacity and fervently devoted to the dream of a better future for our children and grandchildren.

Maybe I’m a bit too optimistic but I have to be. Maybe you should be too. What choice do we really have? We must match the intensity of the enemies of progress. If they choose not to take a day off neither should we. The 19th century American writer and poet, Ella Wheeler Wilcox, wrote to sin by silence when we should protest makes cowards out of men.” We should all heed her words. The struggle continues.

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