The Supreme Court will hear two cases on affirmative action next fall. The conservative group Students for Fair Admission (SFFA) is suing Harvard and the University of North Carolina, alleging they discriminate against Asians. Given the court’s conservative tilt, this could be the end of racial preferences in colleges.  

Affirmative action in context
John F. Kennedy issued an executive order in 1961 instructing federal contractors to “take affirmative action to ensure that applicants are employed and that employees are treated during employment without regard to their race, creed, color or national origin.” It was the beginning of the Equal Employment Opportunity Commission (EOEC).  

---

Lyndon Johnson’s commencement address at Howard University in 1965: “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.”

---

The Civil Rights Act of 1964 was landmark legislation prohibiting discrimination. Its two notable provisions are Title VI, which prohibits discrimination by agencies that receive federal funding, and Title VII, which prohibits discrimination by employers. 

At the height of the civil rights movement, the nation felt a more active approach to racial inequality was needed. White Americans, especially in the south, were themselves taking affirmative action to maintain white supremacy. This took the form of racial violence to keep Black people in their place and tacit racial solidarity agreements among white people to bar Black people from opportunities historically reserved for white people. Moreover, simply removing barriers to opportunities means little when Black and white people were not on the same playing field. 

Our nation needed to do more. This understanding is encompassed by Lyndon Johnson’s commencement address at Howard University in 1965: “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.”

That same year, 1965, Johnson expanded the government’s role by pursuing affirmative action for racial minorities. Federal contractors were required to take affirmative action. The Secretary of Labor was given the authority to develop regulations to achieve results. In 1967, Johnson issued another executive order requiring federal contractors to take affirmative action for women. 

Colleges and universities voluntarily adopted affirmative action policies. Again, this was in the context of a turbulent era. Students protested the lack of people of color in historically white universities. The president of Columbia was a law student at Columbia in 1968. He told the Times: “In that time, there was a sense, pure and simple, that universities had to do their part to help integrate higher education.” 

The White backlash in context
The 1960s were a unique time in the United States, leading to remarkable changes in American society. But white Americans, sensing a loss of something, challenged racial preferences in college admissions from the start, appealing to the Equal Protection Clause of the 14th Amendment.

It is beyond my level of expertise to detail the particulars of some of the landmark cases. But a summary of some of the landmark cases is necessary to get a sense of exactly how affirmative action is used in higher education today.

The first significant decision on racial preferences was in University of California v. Bakke (1978). Alan Bakke, a white male, was not admitted to the University of California-Davis medical school. The Supreme Court ruled 8-1 against using strict racial quotas as these violated the equal protection clause of the 14th amendment. Colleges could still practice forms of affirmative action (e.g., using race as a factor in admissions), but they could not use strict racial quotas. 

---

---

Universities could still use race as one of the factors. This is a no-no for some people.  

So the legal battles continued.

Barbara Grutter, a white female applicant to the University of Michigan Law School, was placed on a waitlist and then denied admission. Grutter alleged that she had been discriminated against. In Grutter v. Bollinger (2003) the Supreme Court decided in a 5-4 decision that educational institutions can use race as one factor in admissions when there is a compelling interest in using race to achieve diversity. 

But, still, this is too much. 

Another case reached the Supreme Court, Fisher v. University of Texas (2013) and Fisher v. University of Texas (2016). The petitioner was Abigail Fisher, a white student who was denied admission to the university. Ultimately, in a 4-3 decision, the Supreme Court decided the university had a compelling interest in using racial preferences to achieve its diversity goals.

And there you have it. 

All this wailing and gnashing of teeth over a few cases where the university has decided diversity is something they want on their college campus, and using race as a factor helps them reach that goal. 

Asking the right questions
There is a standard set of pro-con arguments one hears around affirmative action. The pros? Helping historically disadvantaged groups and increasing diversity on campus are the main ones. The cons? It discriminates by race, and it hurts the groups they are meant to help by instilling inferiority. They had to be “helped.” 

But we need to think more critically. We need to ask the right questions.  

Do you care about diversity?
Most parents and prospective students see a college degree and what it provides in a utilitarian, competitive, hierarchical way. It is an on-ramp into the labor market. 

The better the degree, the better the job, and thus the higher up someone can go in society’s hierarchy. You’ve won the game of life. A black student getting a slot at a prestigious school has therefore “won” without merit. 

---

Just because Edward Blum and Students for Fair Admissions are framing their case around the discrimination of Asians does not mean the ultimate goal is to remove racial preferences that would address white supremacy in this country.

---

But universities are not degree factories, nor should they be. 

Universities attempt to nurture a learning environment in which students grow into productive citizens. Universities do this in part by cultivating a diverse group of people who can share experiences in and out of the classroom. 

As a professor, I’ve seen the benefits of this. Classroom conversations about many issues benefit from different perspectives. Conservatives should know this given how much they lament the lack of ideological diversity on campus.  

Affirmative action has withstood legal challenges because the Supreme Court has agreed with this mission. It saw racial preferences as a way of achieving it. 

When someone argues against affirmative action, it may be worthwhile to ask if they care about diversity, as ending racial preferences will lower it on campus. 

Would you prefer class-based preferences?
Some genuinely are concerned about racial preferences compromising our meritocracy. But most people do not consider how compromised it already is. 

In an earlier piece, I quoted a passage from Michael Sandel’s 2020 book Tyranny of Merit about the stranglehold wealthy families have on elite institutions: 

• “More than 70 percent of those who attend the hundred or so most competitive colleges in the United States come from the top quarter of the income scale; only 3 percent come from the bottom quarter.”  
• “At the most prestigious schools, “there are more students from the wealthiest 1 percent of families than from the entire bottom half of the country.” 
• “If you come from a rich family (top 1 percent), your chances of attending an Ivy League school are 77 times greater than if you come from a poor family (bottom 20 percent).”

A lot of the resentment is misplaced.  

---

There is a standard set of pro-con arguments one hears around affirmative action. The pros? Helping historically disadvantaged groups and increasing diversity on campus are the main ones. The cons? It discriminates by race, and it hurts the groups they are meant to help by instilling inferiority. They had to be “helped.” 

---

That working-class kid who scores 1100 on the SATs – an excellent score – but did not get into Georgetown may want to blame the Hispanic kid who got in with a score of 1050. But in reality, it is the children of wealthy families who have taken up the majority of slots with their 1200+ scores, leaving the working-class kid and Hispanic kid fighting over the remainder. 

The LBJ quote above, about starting lines and fairness, is apropos here. 

When it comes to getting into elite institutions – the ones using racial preferences – they are only a little more likely to get in as black people were in the 1960s. 

The narrative should be shifted away from attempting to remove preferences, and towards making preferences more nuanced. Let’s do class and race. Let’s do class and race and school district. If you argue away racial preferences, you are building the justification for rejecting any preference. Given wealth disparities, not using preferences (class, race, or whatever) entrenches oligarchy – rule by the wealthy. 

Why the hyperfocus on racial preferences?
While many people object to racial preferences because it is not meritocratic, I suspect a larger group resents racial preferences for other reasons. Consider:

• The majority of colleges admit most of their applicants. Only a small number of elite universities are in the position to reject.  
• Even in cases where a white applicant has been rejected, it is the difference between going to college 1A as opposed to college 1.
• Positive discrimination occurs on college campuses. It happens in the form of “legacy admissions,” in-state student preferences, preferences for veterans, children of state employees and so on. In raw numbers, any of these likely dwarfs the number of Black and brown students whose race mattered in their admissions. And yet this does not seem to bother people. 

---

---

What gives? Why all the wailing and gnashing of teeth?

Many white Americans cannot stand a situation in which they are not centered.

Especially if that decentering is for the benefit of black people. 

It is very hard to understand the energy invested in and angst surrounding racial preferences without placing it within the context of white supremacy.

Make no mistake. This is about white supremacy. SFFA, the organization suing Harvard and the University of North Carolina, purports to advocate for Asian Americans. However, this organization is backed with conservative funds and is headed by Edward Blum. 

Blum is the founder of the Project on Fair Representation, whose stated purpose is to “challenge[s] racial and ethnic classifications and preferences in state and federal courts.”  Back in 2013, he worked to overturn provisions of the Voting Rights Act. 

So just because SFFA is framing their case around the discrimination of Asians does not mean the ultimate goal is to remove racial preferences that would address white supremacy in this country. 

It always seems to boil down to white supremacy these days. 

---