Emma Culley
February 6th, 2024
Affirmative action can be used as a lens to better understand the preliminary notions of education equality and racial equity in the United States. To use this lens, we must begin by establishing some foundational understandings of American society and law that shape the significance of affirmative action: firstly, equality under the law does not guarantee equity in practice; secondly, affirmative action only ever had the capacity to serve as a remedy for a selection of realities created by the nation’s historically ingrained racial hierarchies; thirdly, education is the cornerstone of democracy and progress.
The assertion that equality in law doesn’t guarantee equity in practice – and the understanding that racism operates both interpersonally and systemically – is a key tool to thinking through affirmative action. Consider that while Brown v. Board[1] brought a formal end to segregation in 1954, white students still made up 91%[2] of college campuses in 1970. In 1978[3] Affirmative action was implemented into the college admissions process to address these continued segregational realities in higher education and it has significantly increased the diversity of college campuses. In 2021, white students made up just 51%[4] of college campuses, reflecting a more proportional representation of the country’s racial demographics[5].
The reason I say that affirmative action only can serve as a remedy is because it does not create systemic change to address racial inequalities in the US; rather, it addresses the tangible product of racial inequalities – disparate demographics in higher education. Though, yes, much has changed since the 1970s, evidence presented in the SFFA v. Harvard case noted that “without considering race, the share of African American and Hispanic or Other students enrolled at Harvard would decrease by 45%,”[6] proving the continual need for affirmative action in educational equality efforts. Let me be clear that this statistic doesn’t reflect validity in an incorrect assumption that students of color received admissions because of their race alone. It reflects that there is a deeper persistent system at play. Affirmative action is about remedying the impacts of these systems until they are deconstructed. It’s also important to acknowledge that affirmative action can only remedy a selection of realities because many marginalized communities face increased barriers to education such as poverty, food insecurity, housing insecurity, and violence, which affirmative action cannot address.
An amici curiae[7] presented by students, alumni, and organizations in support of Harvard’s case, addressed the reality of these perpetuating systems of racial inequity and how they contributed to racial discrepancies in college applications. Most significantly, they point to the inequality of K-12 opportunities. The brief notes that “no racial group has a monopoly on talent, but some students enjoy a monopoly on opportunity,” adding that such disadvantages in access to advanced academics, extracurriculars, athletics, and the arts, widely prevent students of color from the “credentials that would give them a competitive edge within a highly selective admissions process.” The ‘cure’ to the problem affirmative action aims to remedy might seem simple – address inequalities in K-12 education so that there is equal opportunity in higher education admissions processes without requiring the consideration of race. Though, yes, this is long overdue, it is a change that will not happen overnight, so until there's equality in K-12 schooling, race-conscious admissions will continue to be necessary.
In her dissenting opinion in SFFA v. Harvard, Justice Sotomayor argues the critical importance of equitable access to higher education and the creation of diverse college campuses. Sotomayor points to the ways educational access has been purposefully hindered to maintain a racial hierarchy since the nation’s founding, the importance of education in creating good citizens and fostering democracy, and the expansive nature of learning with and from those with different experiences. Sotomayor states at the end of her dissent that the Supreme Court’s decision will “entrench racial segregation in higher education because racial inequality will persist so long as it is ignored.”[8]
It is a failing of our nation to allow the perpetration of educational inequality and racial inequity to persist. And while the overruling of affirmative action will set us back, we must and will remain focused on equal opportunity. After the Supreme Court ruled against affirmative action, the American Civil Liberties Union (ACLU) worked in conjunction with five other leading civil rights groups to create a comprehensive report that includes recommendations for ongoing educational equity efforts. Those recommendations[9] include the following.
1) Diligently comply with anti-discrimination laws
2) Reimagine and retool admissions processes in higher education
3) Expand recruitment efforts and build robust pipelines
4) Support historically marginalized and underrepresented students on campus
Though a complex and overwhelmingly vast issue, equality is not something we can hope to stumble upon. To quote feminist scholar Maythee Rojas, “social injustice – whether we cause it, are hurt by it, or happen to benefit from its effects – dehumanizes all of us.”[10]
We must not idle when there is work to be done.
[1] “Brown v. Board of Education (1954),” National Archives, last modified November 22, 2021
[2] “School Enrollment in the United States: 1970,” U.S. Department of Commerce, published March 5, 1971
[3] “Affirmative Action Policies Throughout History,” American Association for Access, Equity and Diversity, accessed January 2024
[4] “Total fall enrollment in degree-granting postsecondary institutions, by level and control of institution and race/ethnicity or nonresident status of student: Selected years, 1976 through 2021,” National Center for Education Statistics, prepared December 2022
[5] “Examining the Racial and Ethnic Diversity of Adults and Children,” United States Census Bureau, published May 22, 2023
[6] Students for Fair Admissions, INC., v, President and Fellows of Harvard College, 600 U.S., 171 (2023)
[7] Students for Fair Admissions, INC., v. President and Fellows of Harvard College, brief amicus curiae of 25 Harvard student and alumni organizations in support of respondent President and fellows of Harvard College, July 25, 2022, pg. 5
[8] Students for Fair Admissions, INC., v, President and Fellows of Harvard College, 600 U.S., 207 (2023)
[9] “Civil Rights Groups Send Post-Affirmative Action Report to Harvard, UNC, and over 100 Additional Colleges and Universities Detailing Options for Equitable and Diverse Higher Education After the Supreme Court Decision,” American Civil Liberties Union, published October 2, 2023
[10] Maythee Rojas, “Prologue,” in Women of Color and Feminism: Seal Studies (Seal Press, 2009), vii
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