Affirmative action never got to the heart of the problem

The end of affirmative action admissions programs could make space for more effective programs to achieve diversity on campus.

Photo by Element5 Digital on Unsplash

On June 29, 2023, the Supreme Court of the United States (“SCOTUS”) released its decision in Students for Fair Admissions, Inc. v President and Fellows of Harvard College (“SFAP”) finding that the affirmative action policies of both Harvard and the University of North Carolina are a violation of the Equal Protection Clause of the United States Constitution. This finding will impact not only Harvard and UNC, but universities more generally.

This was not the first time that the SCOTUS was tasked with looking into the constitutionality and fairness of affirmative action admissions programs at universities. To understand the context of this decision, it is important to look at the Court’s consideration of affirmative action 20 years ago in Grutter v Bollinger. In the Grutter case, a rejected applicant challenged the constitutionality of the affirmative action policy at University Michigan Law School. In 2003, the SCOTUS held that the Law School’s affirmative action policy was sufficiently narrow and was justified by a compelling interest in obtaining the education benefits from a diverse student body and was therefore not prohibited by the Equal Protection Clause. The ruling in Grutter contains important guidance for how affirmative action policies can be structured. For example, the SCOTUS held that having a quota system wherein a certain number of seats are designated for certain groups of minority students would be unconstitutional, nor could race be used to create entirely separate admissions standards for applicants belonging to certain groups, and must only be used as a “plus one” when considering applications. These policies are not justified by a focus on historical ills, but can be justified by a commitment to the benefits of a racially diverse student body. Lastly, and importantly, the SCOTUS stated that race-conscious admissions policies must be limited in time. Grutter set the expectation 25 years in the future racial preferences in admissions programs would no longer be necessary to achieve the goal of racial diversity. While some have argued that this means the programs are entitled to last until 2028, the Court has made clear that this decision did not preclude assessing the necessity, fairness, and efficacy of affirmative action programs in the interim.

In SFAP, the SCOTUS was again asked to answer whether the admissions systems at Harvard and UNC are lawful under the Equal Protection Clause of the Fourteenth Amendment. Similar to the admissions system approved in Grutter, the systems use racial diversity as a plus one when assessing student applications. The problem that the SCOTUS found with this affirmative action system is somewhat self-perpetuating. As per Grutter, enshrining a permanent justification for racial preference in admissions would blatantly offend the Constitution, and the systems employed by Harvard and UNC have no logical end point because their goals and methods of measuring success are too intangible. Furthermore, jurisprudence has consistently held that use of race-based admissions cannot be done to the disadvantage of other students, and yet the First Circuit found that Harvard’s admissions process has resulted in the admission of fewer Asian-American students. 

It's really easy to catastrophize the end of affirmative action. But this program was never meant to last indefinitely, a fact that was made clear 20 years ago in the Grutter decision. While that statement may have been made in a moment of delusional optimism, it also recognized that while affirmative action programs were justifiable and arguable necessary for some time, they are inherently unfair in a way that could not go on forever.

Affirmative action programs have also been subject to shifting justifications over the 60 years they have existed. Reasons for their existence have gone from righting historical wrongs to maintaining racial diversity on campus. If it is truly the case, and the jury is very much still out on whether it is based on the trends in states that did away with these programs years to decades ago, that without affirmative action racial diversity will disappear from the student body, then it might be because it was always the wrong answer to the wrong problem. 

Affirmative action programs were intended to address the fact that an insufficient number of racialized minority students, often as a result of being disproportionately represented in certain school districts, were meeting the admissions standards for schools like Harvard. The end of 12th grade is the wrong time to start trying to fix it. 

In 2019, the Georgetown University Student Union voted to pay reparations to the descendants of slaves formerly owned by the university. The original offer was of free tuition to Georgetown for any student from Maringouin, the town where the descendants live, who met the admissions standards of the university. The problem was that no students from Maringouin were going to meet that standard. Based on the quality of the education available to them, even the top students from the Maringouin high school would always fall short. A financial settlement was agreed upon instead. If Georgetown was smart about it, they would have put that money into improving the quality of education available in Maringouin so that students would be able to meet the admissions standards. 

Education interventions need to happen early, really early, like kindergarten. By the time a student is in high school, they are too far behind. While we do hear the occasional stories of students who find ways to make up the difference, they are absolutely the exception and not the norm. Affirmative action programs try to resolve unequal access to quality education at the point that it is too late to do so. 

Affirmative action programs are a backwards solution, because they try to solve for inequality of outcome rather than inequality of opportunity. 

When you stand on the starting line of a marathon, hypothetically, everyone there spent the previous 16 weeks doing a similar type and amount of training; there is equality of input. But everyone will run a very different time. We can't all win the race; we can't control that some people will just be faster, but we can do our best to make sure that everyone has the same resources going in. The same is true of a math test. We can solve for the input - quality of teachers, access to extra help, quiet places to study, etc. and still, some students will do better than others. It is a common fallacy to become overly focused on the final test score and to try and level the playing field after the points are on the board, this is what affirmative action does, rather than trying to ensure that every student has what they need to succeed to the best of their ability going into the exam room. 

Within a day of the release of the SFAP decision, universities were emailing their students reminding them that the institutional commitment to diversity and inclusion remains firm, as it absolutely should. This change in the law, while perhaps jarring, is also a real opportunity for resources to be reallocated to improve the quality of education available for currently underserved communities where it can make a real difference.