Principled Fairness or Yet Another Vessel for White Supremacy? Analyzing the Supreme Court Case on Affirmative Action

Many on the right will argue that using race, as one factor among many, when considering admission to college simply isn’t fair. Instead, they feel that college admissions should be based strictly on “objective” criteria such as grades and SAT scores. Thus, many will claim to object to Affirmative Action on the basis of this “principled fairness.”

An alternative perspective, first proposed over 50 years ago by social scientists David Sears and Donald Kinder, is that Affirmative Action (and other race-based policies of the 1970s, including busing) acts as a “symbol” for Black people, and that opposition to these policies is a socially acceptable way to express racism toward Black people. This idea has become known as symbolic racism. People who oppose Affirmative Action will vehemently deny that it has anything to do with race, and for Sears and Kinder, that’s the whole point. Plausible deniability allows opposition to Affirmative Action to be expressed in a way that more explicit and overt forms of racism would not be expressed by most White people.

As we await the Supreme Court’s decision on the latest challenge to Affirmative Action, I want to address the role of racism in both the creation of, and opposition to, Affirmative Action.

Affirmative Action as an antidote to racism

To understand opposition to Affirmative Action, it’s important to start with a historical overview of what the policy was at its inception before we discuss what the policy has become in the present era.

The original impetus for the creation of Affirmative Action was to serve as a remedy to historical discrimination. It had little to do with the purported benefits of organizational diversity. In his recent Politico article, Evan Mandery, a professor at John Jay College of Criminal Justice, describes how the term “affirmative action” first appeared in a 1963 Executive Order signed by John F. Kennedy establishing the Committee on Equal Employment Opportunities, which was chaired by Vice President Lyndon B. Johnson. Coined by the committee’s special counsel Hobart Taylor Jr., the term originally signified deliberate, progressive efforts to fight and counteract racism, as in “by affirmative action the elimination of discrimination,” according to Mandery.

He goes on to describe how Johnson, once he became president, conceived of Affirmative Action as compensation for past injustices, and how during the late 1960s many colleges viewed it as partial reparations for the country’s long history of racism.

Not unlike now, at the time there was considerable backlash against the notion of reparative racial justice for Black people. One of the first legal challenges to Affirmative Action was a Supreme Court case in 1974 brought by Marco DeFunis, a White applicant who was denied admission into the University of Washington Law School. Defending it in an amicus brief to the court, Harvard law professor Archibald Cox wrote that Affirmative Action was justified by “the direct or indirect consequences of slavery, ‘white supremacy’ and other historic prejudices leading to the poverty and isolation of disadvantaged groups.”

The challenge was that justifying Affirmative Action on the basis of past discrimination became problematic because it required that institutions (e.g., Harvard) and individuals, many of whom occupied government positions, acknowledge their own complicity—something that they were not comfortable doing. Not surprisingly, many White people became hostile and defensive toward the reparative justice argument. Therefore, supporters of Affirmative Action had to adopt a different strategy.

From anti-racism to “diversity”

Because of mounting resentment toward the idea of reparative justice, the Supreme Court began to face backlash for decisions that were sympathetic to the Civil Rights Movement. Therefore, Cox decided to put a different spin on Affirmative Action in order to make it more palatable to the court and the public. Instead of framing Affirmative Action as necessary for the correction of past injustices—which nobody really wanted to deal with—it became about enhancing the quality of education by capitalizing on the benefits that a diverse student body could confer. He provided an example in the amicus brief: “A farm boy from Idaho can bring something to Harvard College that a Bostonian cannot offer. Similarly, a Black student can usually bring something that a white person cannot offer.”

Strategically speaking, this did a couple of things. First, it shone the spotlight away from the plight of Black people and how the policy might remedy past injustices. Secondly, it explained how White people might also benefit from the policy as the result of being immersed in a diverse environment—diversity that many were not seeing in their schools or neighborhoods.

The strategy worked in the short term, albeit barely. In the famous University of California Regents v. Bakke case of 1977, the Supreme Court ruled 5-4 in favor of upholding race-conscious admissions.Yet, the unintended long-term consequence of this decision is the ambiguity that we are currently dealing with: “diversity” potentially meaning everything and anyone—a sentiment recently expressed by Justice Clarence Thomas who stated, “I don’t have a clue what it means.”

Other forms of preferential admissions

Is it accurate or fair to posit that opposition to race-conscious admissions is a subtle form of racism rather than a race-neutral commitment to objective admissions standards for all? Research suggests that opposition to Affirmative Action has everything to do with race. 

How do we know?

For one thing, elite colleges have always had preferential admissions policies—a form of “Affirmative Action” for some groups. The important detail is that, historically speaking, these preferential admissions policies have always benefitted White people. In the old days, admission was largely based on social networks and which prep school one attended.

In the present day, we see the same preferential treatment in the form of ALDCs—in other words, athletes, legacy students, and children of donors and faculty. This heavily favors wealthy White students. In 2019, a study by the National Bureau of Economic Research found that 43% of the first-year class’s White students were ALDCs. That number was only 16% for students of color. The same study reported that 75% of the White students in those categories would not have been accepted under normal (ahem, “objective”) consideration conditions. That’s a lot of “under-qualified” White students being admitted to Harvard each year. 

Research by Angelica Gutierrez and Miguel Unzueta demonstrates that opposition to Affirmative Action is all about maintaining this rich White status quo. They ran a study in which they measured social dominance orientation (SDO)—a personality variable that taps the extent to which people believe that some groups are superior to other groups, and that society should be divided into winners and losers and haves and have-nots. People who score high in SDO do not believe that everyone should have a fair shot in life. They believe that powerful, wealthy, dominant groups should oppress whomever they can—that this is the natural order of things.

As you might guess, this study also showed that people with a high SDO strongly opposed Affirmative Action. No surprise there. But what is stunning is that those same people actually supported legacy policies, which grant preferential admission to children of alumni. These are the policies that allowed C-students like George W. Bush to be admitted to Yale.

Long-standing unfairness, long-lasting repercussions

Taken together, the many conclusions from the study and recent court cases show that opposition to Affirmative Action can’t possibly be about fairness if the same people opposing it are simultaneously supporting unfair policies that allow under-qualified students to be admitted as long as they are White. It’s about power, not fairness.

For centuries, under-qualified White people got into Harvard and other Ivy League institutions whereas the most qualified people of color were systematically omitted. Even today, rich people can essentially buy admission for their children by making large donations to their child’s school of choice. Few are outraged by it because it maintains the status-quo hierarchy that puts certain groups at the top and others at the bottom.

Let’s look at the likely SCOTUS decision for what it is: an attempt to keep the social hierarchy intact. The diversity argument was once used as a strategic lifeline for a policy designed to reverse centuries of oppression, but it appears that even this argument is beginning to lose its appeal. That is why it is so important that we not shy away from calling out systemic racism and the lingering impact of slavery, and demand that policy-based action be taken to reverse its deleterious effects.