Affirmative Action Isn’t Just a Legal Issue. It’s Also a Historical One.
This article was published in The New York Times.
The Supreme Court’s decision this week in Fisher v. University of Texas is a profound relief, and a cause for celebration among those of us in higher education who have long insisted that affirmative action is vital to our schools’ missions and to society as a whole.
The ruling means we can continue to assemble diverse student bodies and it has validated college administrators’ judgment about the qualities needed to achieve educational goals. More important, the opinion greatly strengthens earlier precedent, set in Grutter v. Bollinger in 2003, that race-conscious admissions policies are constitutional.
Yet it’s worth remembering the limits of today’s affirmative action landscape, even after Fisher. The court’s landmark 1978 decision in Regents of the University of California v. Bakke outlawed quotas but permitted the consideration of race to achieve a diverse student body; in doing so, it stifled deeper conversations in courtrooms and classrooms about why we need affirmative action and what it can achieve. And by severing the connection between affirmative action and our past, the court forfeited the opportunity to inform America’s conversation about racial discrimination with the awareness that comes only from understanding history.
Justice Anthony M. Kennedy’s majority opinion in Fisher slightly opens the door to a broader discussion. He acknowledged that the University of Texas’ admissions program, which automatically admits a percentage of the top students at all public high school students in Texas, yields diversity primarily because of the stunning level of segregation in the Texas public school system.
There may be future Supreme Court challenges to affirmative action, as signaled by the passionate dissent Justice Samuel A. Alito Jr. read from the bench, and the strong opposition to affirmative action that remains. If so, the court should acknowledge in those cases the past and present realities of race in America.
The Supreme Court is at its best when it locates a specific controversy within a larger framework that explains our nation’s fundamental values and ideals. This can be seen most powerfully by the Earl Warren court’s Brown v. Board of Education decision, which went beyond the rejection of “separate but equal” public schools and explained that the promise of equality requires a collective effort to achieve integration. Sadly, despite the fact that Brown is the foundation on which affirmative action is justified, a reference to the case is nowhere to be found in the Fisher opinion.
"But the most important task for universities in the months and years ahead is one that we are uniquely well suited to perform: to help society at large — not only our own campus communities — better understand the painful and still-unresolved historical context within which the need for affirmative action exists."
For now, universities must operate under the Fisher decision, which gives us greater stability. But it also reminds us that colleges have serious legal duties.
A university cannot justify its admissions policies with broad generalizations. Instead, administrators must articulate concrete reasons for pursuing diversity — for example, to prepare students for a diverse society or promote cross-racial understanding on campus. Colleges can establish panels to study whether and why those issues are important to fulfilling their educational goals, as Texas did.
Universities should assess whether these interests can be accomplished through race-neutral means. Schools could analyze what their student bodies would look like if they stopped considering race and instead pursued other initiatives, like increasing financial aid or focusing on socio-economic status. These analyses will position universities to better understand how race-neutral admissions practices would affect their student bodies and to determine whether the changes would be consistent with their mission.
Even if colleges conclude that race-consciousness is necessary at a given time, they cannot assume that it will always be so. They should periodically reassess whether their admissions plans remain legal and effective, and also re-examine every few years whether the conclusions of previous studies remain valid.
But the most important task for universities in the months and years ahead is one that we are uniquely well suited to perform: to help society at large — not only our own campus communities — better understand the painful and still-unresolved historical context within which the need for affirmative action exists. This context includes a public education system that remains nearly as segregated and unequal today as it was at the time of Brown more than six decades ago.
Just as universities are capable of seeing whether race-neutral alternatives to affirmative action are available, they can also provide a broader understanding for Thursday’s ruling grounded in law, history and social science. We must shoulder both of these responsibilities.