Viewpoint: The Goal of Affirmative Action Should Not Be ‘Diversity’ but Righting Wrongs

Our misguided Supreme Court has invited a barrage of new attacks on affirmative action based on the wrong principle

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I champion affirmative action and thus derive little satisfaction from the Supreme Court’s ruling in Fisher v. University of Texas. True, I am relieved that the court, the most reactionary we have had on racial matters in many decades, did not go further in crippling efforts by institutions of higher education to insure an appreciable presence of marginalized racial minorities, especially blacks and Latinos. After all, Fisher did leave intact the program under challenge which counts being black or Latino as a plus in the searing, high-stakes competition for scarce places at the University of Texas. The Supreme Court held only that the lower courts had been insufficiently exacting when determining whether the university properly justifies its resort to race in making admissions decisions.

The Fisher decision is bad because it will invite a barrage of new attacks upon affirmative action in higher education, thereby discouraging a practice that has over the past 40 years been conducive to the public good, integrating racial minorities in key institutions at a pace that would have otherwise been impossible. It will make affirmative action more vulnerable by telling judges to pay less deference to university administration or admissions. But the problem with Fisher goes beyond a single decision. The problem resides in several decades of Supreme Court jurisprudence. Since Justice Lewis Powell’s landmark opinion in Regents of the University of California v. Bakke in 1978, the court has abjured justifications for affirmative action that are as compelling, if not more persuasive than the diversity rationale that is now all too dominant as a basis for positive discrimination on behalf of marginalized racial minorities.

(MORE: No Silver Linings for Conservatives on SCOTUS Affirmative-Action Decision)

Affirmative action can rightly be justified as a means of seeking reparatory justice on behalf of groups that have long been oppressed and still bear the debilitating scars of their mistreatment, as a means of facilitating integration and as a means of countering ongoing racial prejudice. Limiting the accepted rationale for affirmative action to “diversity” constrains the policy unduly and makes it vulnerable to charges of insincerity since, in truth, many of its proponents are actually motivated by other concerns and mouth the rhetoric of diversity mainly to satisfy judicial overlords. Just suppose that social science could prove beyond dispute that a multiracial student body did not generate  pedagogically useful “diversity”? Would many partisans of affirmative action end their support? I doubt it. I certainly would not because, in my view, the obligation to right past wrongs, the imperative to facilitate integration and the duty to counter ongoing but hard-to-detect biases are better reasons for race-conscious affirmative action than the educational hunch of “diversity,” though it too should suffice as an acceptable reason for preferring those who are not typically preferred.

With Fisher and previous rulings, the Supreme Court has put racial affirmative action under a heavy constitutional pall. That is a mistake on the court’s part that needs urgently to be undone. There is nothing in the Constitution’s text, in the intentions of its framers, or in the logic of its mission that should be seen as precluding or discouraging racial affirmative action. Several, perhaps a majority, of the Justices object that racial affirmative action runs afoul of constitutional color blindness. But the Constitution does not compel color blindness and should not be seen as harboring an aspiration for color blindness. The 14th Amendment merely directs states to offer all persons “the equal protection of the laws” — a malleable formulation that is capacious enough to accommodate affirmative action.

The commitment to constitutional color blindness that animates Fisher threatens policies like the one at the University of Texas that are helping to create a multiracial polity in which previously oppressed people are included and welcomed as valued, productive, equal actors in every sphere of American life. At present, in other words, constitutional color blindness is a destructive jurisprudence. The Constitution should be construed as prohibiting only invidious racial discrimination by which I mean racial distinctions that are meant to harm people because of their race. Of one thing, however, we can be sure:  the University of Texas did not intend to harm Abigail Fisher. She was, to a small extent, disadvantaged. But she was disadvantaged  for the purpose of aiding a commendable mission of racial healing not for the purpose of putting her down on account of her race.  That sort of positive, benign racial policy should not be negated by judges but should be left to the sway of regular politics. The good people of Texas are not compelled to practice racial affirmative action. They could, like the people of California, decide to get rid of racial affirmative action altogether. But since the Texans have presumably decided to keep racial affirmative action, they should be allowed to do so absent harassment from the misguided Supreme Court of the United States.


say randall.... for 50 years I have had to put up with blacks demanding they be treated..."equal"... well now they are... we don't need special rules for blacks to vote... we don't need special rules for black to be admitted to a university or college... and we and we don't need blacks to be given hiring preference because they are... black... and now...howls of outrange and despair and doom because what the blacks really wanted was not...."equal"...they wanted "special"... and they got it for about 50 years... now they must compete on a level playing field.... it should be very enterntaining.. ...talented blacks have never needed...."special" ... that is totally for those who can not compete... is this a wonderful country or what....

Timer_1948 1 Like

I firmly believe that the time of  "reparatory justice on behalf of groups that have long been oppressed" is long over. As has been posted by others in this thread, the policy of Affirmative Action has run it's course to the point of having Reversed the actual goal of Affirmative Action. Now, as in many of the modern racial laws, it's the previously "accused" parts of society that is being discriminated against. Regardless though, the goal SHOULD BE to seek the most qualified, by all means. And in truth, any individual seeking to hire should be able to hire or Not hire whom they please.

Belisarius86 3 Like

One of the more problematic aspects of affirmative action is that, in trying to correct for a relatively minor,widespread, but diffuse structural racism, it creates a much more focused disadvantage for people who often have had nothing to do with the original problem.

More specifically, it effectively disadvantages young Caucasian and Asian males - who have had little or nothing to do with creating the original problem - in order to boost women and almost all other races and ethnicities. And it does so with no regard for either group's socioeconomic status, which is a much larger factor in determining future success.

Because of this, you get blatantly unjust situations where a white or asian male from a poor family will be put at a significant disadvantage to a black or latino woman from a wealthy and privileged background. The author alludes to this, and writes it off as an acceptable sacrifice for a broader societal good. I think most people would disagree, and that the author would too (and loudly) if it were his children being so disadvantage.

WilliamWagg 1 Like

Randall also fails to reconcile the fact that more minorities fail out of school in the first year because their education level is to high.  Schools have academic standards in part to help insure that those that get in have the best chance of graduating.  Allowing someone in because of what happened to there grandparents or in some cases great grandparents, cause a disadvantage to that person.  Maybe they would graduate from a lesser college.

GordonCastle 4 Like

The 14th Amendment to the Constitution is very clear "Equal protection under the law" meaning you can not discriminate based on a person's race. For a public, taxpayer funded school to discriminate against some college student because they're the 'wrong' color or race is as wrong now as it was back in 1866. You don't end discrimination by continuing to discriminate.

llm.lavoie 2 Like

@GordonCastle If one needs medical care, has a fire at home etc; shouldn't we have  best qualified person available? That person does not need to look like us; but they need to be as well qualified or better qualified than the 1 who does. We do not convict people because of a crime that their great grandfather  committed if they never even knew one another. Colleges admit a fixed # of students. If a college were to admit 300 affirmative action students; they do not add extra professors + facilities to make additional room for them. That means that if some were less qualified than the rejected ones, the rejected students are denied a future there + maybe elsewhere; that would have a impact on our country's ability to compete here & globally. What are advocates of affirmative action doing to ensure they can compete on equal footing when applying for college & employment? Denying qualified people a chance to get a degree while admitting less qualified people regardless of the reason is discrimination

failureofreality 4 Like

The argument for Affirmative Action presented by Randall Kennedy lacks coherence.  It confuses groups with individuals and makes illogical leaps.  The Constitution protects individuals, not groups.  It offers equal protection to individual persons.

His argument that Affirmative Action should right past wrongs fails on many levels.  Why should a person today suffer for a wrong committed by someone else in the past?  Why should a person of a particular race be condemned to suffer because of a wrong committed by another person of the same race?

How does Randall Kennedy know that Ms. Fisher was not harmed?  

Randall Kennedy's argument rests on profound racial discrimination.  In effect it comes down to guilt by association--a white person is guilty just by being white.

Kennedy should be glad to accept the weak diversity argument.  His argument fails.