Oct 10, 2023 By Kent James 6 min read

This past summer, the U.S. Supreme Court, with its 6-3 conservative majority, effectively ended affirmative action in higher education. In doing so, it overturned decades of precedents, which is not particularly conservative, but was entirely expected.

The court was not acceding to a groundswell of popular support for this change; both cases were brought by Students for Fair Admissions, which is an organization founded by Edward Blum, a legal activist who has made it his mission to overturn affirmative action. Conservatives on the court are using its supermajority to turn back the liberal victories of the 1960s while they can.

President John F. Kennedy created the idea of affirmative action when he established the Commission on Equal Employment Opportunity in 1961, and ordered that the federal government take “affirmative action to ensure that applicants are employed, and employees are treated during their employment, without regard to their race, creed, color, or national origin.” At a commencement speech at Howard University in 1965, President Lyndon Johnson justified federal efforts to take affirmative action to correct past injustices: “You do not take a person who, for years, has been hobbled by chains and liberate him, bring him up to the starting line of a race and then say, ‘You are free to compete with all the others,’ and still justly believe that you have been completely fair. Thus, it is not enough just to open the gates of opportunity. All our citizens must have the ability to walk through those gates.”

The government could not order private companies to enact affirmative action policies, but it could make that a requirement of getting federal contracts. Under Executive Order 11246, issued in 1965, companies that have more the 50 employees and at least one contract over $150,000 with the federal government are required to have an affirmative action plan. But the scope of affirmative action has always been limited; according to the U.S. Department of Labor, only 22% of the civilian labor force is covered.

Affirmative action was never a perfect remedy for past discrimination. If unqualified candidates are hired because of their race or gender, that not only puts those individuals, and the companies that hired them, in a position to fail, it undermines the credibility of all members of the protected groups, because people may think they are only in their position because of their race or gender. But simply ending discrimination does nothing to correct the injustices of hundreds of years racial oppression and discrimination.

Civil rights leaders in the 1950s and 1960s were often told by liberal white allies that they had to be patient. Abolishing injustice too quickly would lead to a backlash, and set back the cause. Martin Luther King Jr., pushed back against this in his “Letter From a Birmingham Jail”: “For years now I have heard the word ‘Wait!’ It rings in the ear of every Negro with piercing familiarity. This ‘Wait’ has almost always meant ‘Never.’ We must come to see, with one of our distinguished jurists, that ‘justice too long delayed is justice denied.'”

Affirmative action was an attempt to speed up the process of eliminating racial discrimination. It required colleges and affected businesses to include members of previously excluded groups. That was the simplest way to correct past injustices, though it was also the correction most likely to negatively impact whites, which encouraged charges of “reverse racism.” In the Bakke case in 1978, the Supreme Court outlawed quotas. In his majority opinion, Justice Jerome Powell argued that it was unfair to white students who had played no part in oppressing racial minorities to be punished by denying them admission they otherwise would have attained. In the Bakke decision, the Supreme Court did make an exception – it allowed affirmative action to improve the educational experience.

The Harvard case this summer overturned that exception, with the court now finding that considering race in admissions violated the constitutional rights of Asians and whites. Ironically, one of the reasons Chief Justice John Roberts gave for that decision was that Harvard’s affirmative action programs “lack sufficiently focused and measurable objectives warranting the use of race,” objectives (quotas) the court had previously made it illegal for Harvard to use.

Affirmative action has created space for minorities at exclusive universities. Justice Clarence Thomas was a beneficiary of affirmative action, which allowed him to attend Yale Law School, though he’s a staunch opponent. Thomas argues that the existence of affirmative action marks all potential beneficiaries as inferior. Supporters argue Thomas’ experience demonstrates the program works; he would not have gotten into Yale without it, not because he was unqualified to attend Yale, but because vestiges of racism meant he would not have been admitted without it.

In another irony, college admissions are now tipping the scale in favor of an underrepresented group on campus – men, most of whom are white. In the last few decades, a higher percentage of women than men have attended college. Women have been more successful in high school, so they have better chances of being admitted. But colleges fear having a ratio of women to men that is too high – Tulane University’s freshman class last year was almost two-thirds women – so they admit less-qualified men, often through sports, to keep the balance relatively even. I wonder if the current Supreme Court will have an issue with that kind of discrimination?

Starting in the late 1990s, many states, including Texas, California and Michigan, banned the use of affirmative action to increase minority enrollment in their public colleges. Initially, the affected institutions saw a dramatic drop in minority enrollment. Over the years, with an expensive recruitment effort, many colleges have been rebuilding their minority enrollment, though they still haven’t reached the levels achieved under affirmative action. Most colleges are not affected by affirmative action, because they are not selective in their admissions. Interestingly, the Supreme Court allowed military academies to continue to use affirmative action, because failure to do so would undermine military effectiveness. This is essentially the same argument colleges have made.

The fastest way to remedy historic discrimination would have been to have set specific goals for integration, but the Supreme Court took away that possibility a long time ago. Affirmative action has been whittled down over the years so much that this ruling, as dramatic as it is, will probably have little impact. The illusion of affirmative action without the substance was the worst of all worlds. While affirmative action did help create opportunities for minorities, given the historic restrictions imposed by the court, it may be best that the goal of integration be achieved by other means.

Kent James is a member of East Washington’s borough council.