We need a little history and political context for affirmative action in higher education in this country, so we can better grasp what this Supreme Court ruling banning the use of race as a consideration in college admissions really means.
The website Best Colleges says that affirmative action policies aim to increase the representation of women and people of color. In the workforce, this can mean policies designed to promote hiring underrepresented groups. In college admissions, it can mean extra consideration for underrepresented students. In the late 1960s, admissions departments around the country began considering race as a factor when admitting new students. These policies aimed to accept more students of color who had historically been excluded from colleges and universities.
The phrase “affirmative action” was penned by an African-American lawyer named Hobart Taylor, Jr., who was asked by then Vice President Lyndon B. Johnson to review and revise a draft of Executive Order 10925, which would go on to establish President Kennedy’s Committee on Equal Employment Opportunity, which Johnson would chair. In Taylor’s revisions, he inserted the words “affirmative action,” which meant for companies wanting to do business with the federal government, that in regard to racial discrimination, they were not to “Don’t just stand there. Do something,” or take affirmative action to ensure they were not discriminating in hiring. What they were supposed to do, aside from not discriminating, however, was unspecified.
The Commission resulted in a 1966 Executive Order issued by then President Lyndon B. Johnson, who was sworn in as president after the assassination of President John F. Kennedy in 1963. Johnson’s 1966 order told contractors to “take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, color, religion, sex, or national origin.” Later, President Richard Nixon issued another Executive Order in 1969 order that promised affirmative action to end discrimination in government employment overall.
These actions were taken by these presidents not because of the goodness of their hearts and their love of Black people. The transcript of a previously secret recording of Richard Nixon was revealed in The Atlantic in 2019 in which Nixon revealed to Daniel Patrick Moynihan (yes that racist of the Moynihan Report, on whose “Tangle of Pathology” he attributed to the deterioration of the Black family, but not to racist American policies in every aspect of life) that there is an intellectual hierarchy among the races of people with whites at the top obviously, Asians below them, and Blacks and Latinos at the bottom. This belief was based on theories by Richard Herrnstein and Arthur Jensen, which linked IQ to race. Herrnstein’s co-authored book with Charles Murray “The Bell Curve” outlines this garbage and although it has been discredited as such by others in the scientific community, you know the intellectual racists still live by it.
And as much as we want to credit Lyndon Johnson for signing landmark civil rights legislation such as the 1964 Civil Rights and 1965 Voting Rights Acts, Johnson was also a virulent racist who called Black people the n-word a lot. But worse than that, Johnson pressured the Democratic Party’s credentials committee not to seat Fannie Lou Hamer’s Mississippi Freedom Democratic Party at the 1964 Democratic Convention. When Democrats tried to compromise between Johnson and Hamer and offered the Freedom Party two at-large seats, Johnson insisted that he did not want one of them to go to Hamer, and he sent his vice president Hubert Humphrey to explain why: “The president has said he will not let that illiterate woman speak on the floor of the Democratic convention.” Johnson went so far as to try to keep Hamer’s testimony before the Credentials Committee from airing live on national television by pre-empting it with a speech of his own, which did not work since her testimony was later broadcast on the evening news. Oh and then there’s that time that Johnson unleashed J. Edgar Hoover to uncover politically compromising information about Martin Luther King, Jr.
It’s difficult to attribute Johnson’s actions to him truly wanting any measure of equality for Black people, especially when we consider that the Vietnam War was vexing him on the battlefield and on the streets of the United States, particularly among the working class and poor victims of the draft, many of whom were Black. From that context, Johnson needed a counterbalance to his unpopular and deadly escalation in Vietnam if he was going to be re-elected, which, of course, he was not.
And what of his successor Richard Nixon? He wanted to quell the rising demands for Black Power in the wake of the passage of the far less-than-radical and obviously insufficient Civil Rights Act of 1964 and the Voting Rights Act of 1965. But rather than meet those demands, Nixon cooked up “Black Capitalism” instead.
His reasoning was that “People who own their own homes don’t burn their neighborhoods.” But Nixon not only did nothing to address the crippling inequality Black people endured, he further dismantled Lyndon B. Johnson’s War on Poverty programs and other antipoverty efforts because of the typical Conservative line that they were costly and encouraged dependency on the state. Mehrsa Baradaran, author of the books How The Other Half Banks: Exclusion, Exploitation, and the Threat to Democracy, and The Color of Money: Black Banks and the Racial Wealth Gap said that “By discouraging welfare dependency in the name of “black enterprise, he [Nixon] was able to undermine black demands for economic redress and reparations.” And while some few Black people latched onto Black Capitalism and “made it,” the poor neighborhoods in the U.S. continued to be filled to the brim with working class and poor Black people still left out of the empty promise of not only owning their homes, but with no avenue for escaping crushing poverty or the disapproving gaze of the respectability politics that came with Black Capitalism.
So in different ways, both of these men pushed affirmative action as a response to the Black masses’ demand for economic redress for centuries of exploitation and abuse, and Black Power. In fact, in an article in Time Magazine published after the SCOTUS decision banning the use of race as a factor in higher education admissions, Professor of Sociology Emeritus at the University of California, Berkeley Jerome Karabel states that “Affirmative action was never the true goal of the civil rights movement; the ultimate prize was full racial equality. At best a consolation prize, affirmative action was a modest concession granted by the Establishment in a time of turbulent racial upheaval.”
So this is the context in which colleges that had been almost exclusively white for most of their histories voluntarily adopted similar policies to combat racial discrimination on their campuses, which they largely did nothing about previously. In 1969, many elite universities admitted more than twice as many Black students as they had the year before. This change was also a response to the uprising in the streets, but it was just as limited as Johnson’s and Nixon’s efforts.
But when admissions offices began admitting more Black students, no matter how few in number, white applicants claimed they were the victims of “reverse discrimination” and almost immediately went to court to end affirmative action.
The first legal challenge to affirmative action using reverse discrimination came in 1971, just two years after schools began adopting those policies. A white student named Marco DeFunis filed a lawsuit against the University of Washington Law School, citing reverse racism as the reason for his rejection. By the time the case reached the Supreme Court, DeFunis was just one semester away from earning his law degree, leading them to dismiss the case because obviously, his race didn’t keep him from being accepted to somebody’s law school.
By 1975, Harvard’s associate dean of admissions, David L. Evans, complained about the pervasive belief that “semiliterate blacks are being accepted at the expense of white geniuses“–which simply was not true. This belief was pervasive because even before the legal action to dismantle affirmative action policies started, the propaganda against it began, declaring that “unqualified” Blacks were getting the good jobs and spots in colleges that would have otherwise gone to “qualified” whites.
But people still believe this to be so, and not just in higher education; people still believe this about affirmative action in employment as well.
Then in 1978, the Supreme Court banned quotas in affirmative action in higher education in the Regents of the University of California v. Bakke case and the Supreme Court forced many schools to change their affirmative action policies. Allan Bakke, a white man, filed the lawsuit after UC Davis rejected his application to the university’s medical school, which guaranteed a measly 16 out of 100 spots for students of color.
The Supreme Court’s response was to declare this type of quota system an unconstitutional violation of the Equal Protection Clause of the 14th Amendment and outlawed the practice. Imagine that, using the 14th Amendment that was supposed to grant citizenship and equal protection under the law to formerly enslaved people who were denied equality during slavery and for a century afterward now being used by white people who are mad that 16% out of all students admitted must be non-white. But while college admissions offices could not use racial quotas after 1978, they could still consider race as one factor among many others, and it was the Bakke ruling that effectively shifted the focus of affirmative action policy away from advocating for social justice and toward promoting diversity as a benefit for the entire student body.
Then in 2003, the Supreme Court told colleges that they may consider race as part of a “holistic review,” but minority applicants could not receive a set number of points because of their race. Four years later, the court prohibited public high schools from using race as a “tiebreaker.” In 2014, the Supreme Court upheld a Michigan ban on affirmative action at state universities.
So here we are in 2023 and the Supreme Court has banned the use of race in college admissions in any way wherever in this country it remained, with the exception of military academies—which is interesting because in the majority decision, Chief Justice John Roberts justified this exception because the academies were not parties in the cases, and that there were “potentially distinct interests” involved. What “potentially distinct interests, you might ask?
Apparently, a friend-of-the-court brief was filed by 35 former military leaders–including four former chairmen of the Joint Chiefs of Staff–and argued that affirmative action in higher education was essential for national security. They asked the Supreme Court to consider how reversing the longstanding admissions policy would affect the military’s ability “to serve our nation’s security interests,” specifically noting that the diversity of the officer corps, largely made up of graduates of the military academies, because the soldiers they would be leading are diverse.
Joe Reeder, a former undersecretary in the Army and one of the brief’s signatories, pointed out however that the former military leaders had not asked to be exempted from the ruling. But according to Reeder,
No one asked for a military academy carveout. We didn’t ask for that. No one has asked for that.
But that’s exactly what the Supreme Court did, deciding that the force that kills people around the world for the U.S. should be diverse, but higher education outside of indoctrinating and dispatching imperialist-defending warmongerers should not be.
As much as conservatives and reactionaries are celebrating this ruling, liberals are already finger-wagging folks for not voting for Hillary Clinton in 2016, admonishing, “Elections have consequences!” But I’d like to ask them this: if even the most racist presidents could issue executive orders to address racial discrimination in federal government employment, whatever their reasons, surely Bill Clinton, Barack Obama, and Joe Biden could have done the same to strengthen equal access to higher education or at the very least protect what was left of affirmative action with the same power of the executive pen. But why didn’t they?
The truth is that as much as this ruling is the end result of decades of right-wing organizing, liberals in this country have also done little to nothing to oppose the intense, coordinated, and highly organized campaign by those reactionaries to first grossly mischaracterize and then systematically dismantle any effort made to expand access to higher education to those who have been systematically denied that access for centuries. And I must add that the lack of clear discourse on affirmative action over the decades has only helped to muddy the water and make even that weak effort easier to dismantle.
Instead, liberals have often sought some “middle ground” solutions to address the continued legacy of this country’s racist apartheid system, wanting to appease those conservatives who oppose any reform or political change in a system that for centuries has benefited mostly rich white men and women, and gave some concessions to some poor white people if they also opposed reforms that benefited Blacks, Latinx, immigrants, or women. This left us with half-measures with no teeth that were easy to weaken over the years.
So here we are, in a state I think is best described by Malcolm X when he said,
If you stick a knife in my back nine inches and pull it out six inches, there’s no progress. If you pull it all the way out that’s not progress. Progress is healing the wound that the blow made. And they haven’t even pulled the knife out much less heal the wound. They won’t even admit the knife is there.
Meanwhile, legacy admissions are still a thing and are absolutely affirmative action for white people. In California, where state law requires schools to disclose the practice, USC reported that 14% of last year’s admitted students had family ties to alumni or donors. Stanford reported a similar rate. But all schools do not report their legacy admissions because, like the police and their statistics for officer-involved assaults and shootings, they are not required to report them.
However, an Associated Press survey of the nation’s most selective colleges last year found that among the schools that did report that legacy students in the freshman class ranged from 4% to 23%. At four schools–Notre Dame, USC, Cornell and Dartmouth–legacy students outnumbered Black students. And at many schools with legacy preferences, Black students were not admitted until the 1960s, said Michael Dannenberg, a vice president at the Education Reform Now think tank.
“White applicants have between eight and 16 generations of ancestors on which to establish an alumni connection,” said Dannenberg, who has opposed the practice since he was an aide to the late Sen. Ted Kennedy.
For the vast majority of Black and Latino applicants, there’s maybe one or two generations.
But according to the opponents of affirmative action and their friends in the Supreme Court, it was all those hordes of unqualified Black students who had an unfair advantage.
Jacqueline Luqman is a radical activist based in Washington, D.C.; as well as co-founder of Luqman Nation, an independent Black media outlet that can be found on YouTube (here and here and on Facebook; and co-host of Radio Sputnik’s “By Any Means Necessary”.