The Terrible Secret of the Affirmative Action Cases

 Once again America is rocked by a Supreme Court decision, one that isn't really a decision based on legal precedents. The politics of race and class as well as personal agendas encouraged six members of the court to vote against the policies of the University of North Carolina and Harvard University. 

Since its introduction Affirmative Action has been problematic. However, if equality had been achieved, it would not have been needed. Sadly, we are rehashing an old story. American history was not on trial. But it should be. Centuries of discrimination, attempts at remedies and then backlashes failed to convince the Court that a better solution was needed. The United States refused to blame itself for crafting weak or faulty judgements since the Regents of the University of California v. Allan Bakke in 1978.

In contrast to the previous cases, especially the 2003 University of Michigan cases, when the court attempted to define Affirmative Action, this has been a watershed moment. Foremost, it was how the case was handled. Most pundits predicted the end of Affirmative Action when the case was introduced late in 2022. In most circles, the fact that "experts" could predict the end of Affirmative Action simply due to the composition of the court is a tragedy, but it goes much deeper. It suggests that the case was designed to be brought to the court to with the intent to dismantle Affirmative Action.

The plaintiff framed the issue as institutions denying individuals of their rights based on their race.  While constantly referred to as an example of intra-minority discrimination, with Asian Americans being discriminated by African Americans and Latinos, the two cases, Students for Fair Admissions, Inc v. President and Fellows of Harvard University and Students for Fair Admissions, Inc v. University of North Carolina, et.al., are attached to countless other issues. Indeed, SAFF makes an argument on behalf of white and Asian American students at the two institutions in a manner that both highlights and lessens the role of Asian Americans in the contestation.

For example pages 6 and 7 of the judgment states: "Second respondents' admissions programs fail to articulate a meaningful connection between the means they employ and the goals they pursue. To achieve the educational benefits of diversity, respondents measure the racial composition of their classes using racial categories that are plainly overboard (expressing, for example, no concern whether South Asian or East Asian students are adequately represented as "Asian"); arbitrary or undefined  (the use of of the category "Hispanic"); or the underinclusive (no category at all for Middle Eastern students). The unclear  connection between the goals that respondents seek and the means they employ preclude courts from meaningfully scrutinizing respondents' admissions programs." see https://www.supremecourt.gov/opinions/22pdf/20-1199_hgdj.pdf

The intersectionality of races has never been an aspect of Affirmative Action.  In the minds of Presidents Kennedy and Johnson, Affirmative Action was a remedy for segregation and inequality. In the 1960s, the majority of college-educated African Americans had earned degrees at HBCUs. President Johnson was democratizing America's state universities, not just elite institutions. His brand of Affirmative Action was allowing qualified students access to schools to which they had been denied. 

It was more of a public view and argument that black students were not qualified to enter these institutions. Yet, this perception lasted for over a generation and continues to last. However, in reality, based on their academic success, no one ever said that Clarence Thomas was unqualified for Yale Law School or that Barack Obama was unqualified for Harvard Law School. Yet, without Affirmative Action neither they nor countless others may have received the opportunity to attend these universities. 

Equally important, but curiously lost in the debates, is the fact that Johnson rapidly expanded Affirmative Action to include other races of color, poor whites, women, and even aspects of geographical diversity. It is not, as stated above, tied solely to some definition of race or geographical racial region. Nor has the true cause of the more recent problems associated with Affirmative Action, current P-12 public and private school inequities, been discussed in the context of retaining, changing or eliminating Affirmative Action. 

However, the minds of the general public have remained fixed on concepts of reverse racism and injustices towards white Americans. Edward Blum, the founder and president of Students for Fair Admissions, has been leading these types of cases for years. Reading the documents supports the belief that this is simply a drop in and take out set of points to craft an argument.  In many respects, Blum's role in the case was suspect. Was he trying to help Asian Americans or is he a gun for hire?  What happens when your advocate is solely a foe of Affirmative Action?  

Additionally, it was surprising to see how FOX, CNN, and MSNBC covered the verdict. Little was said about the percentage of Asian Americans in these two universities or the other elite universities throughout the nation.  A good deal of the discussions were how the decision could harm African Americans and Latinos. Most of the coverage revealed liberal and conservative talking heads respectively denouncing or approving the decision, but very few members of the Asian community, the group that initiated the case, were given air time. In reality, no one seemed to care about what Asian Americans felt or thought. This case was always about white folks and the existing social order.

The real tragedy of the case is that Asian Americans were used as pawns for a group of conservatives to push forward a particular agenda.(1) Certain whites and white organizations have associated Affirmative Action with reverse racism since the mid-1960s. They have described Affirmative Action as a racial Robin Hood, taking from whites to give to blacks. By ending Affirmative Action, they eliminate another so-called liberal entitlement. By the end of this court session, this case and other law suits will weaken or destroy some additional perceived entitlements or minority protections.

Ultimately, we need to be honest and do a better job of looking at motivations and outcomes.  The unanswered but obvious question is: was this case about all colleges or just the best ones? Let's look at the history of where the Affirmative Action cases have been waged! Medical Schools, Laws Schools, and elite public and private universities! Was there a reason why Blum and Students for Fair Admissions targeted Harvard, a private institution where Asian American groups had challenged and failed in their fight for greater admissions (2019), and the University of North Carolina at Chapel Hill, a selective public university which was initially sued by Students for Fair Admissions (2014) after it supported the University of Texas in a previous Affirmative Action case? (2)

Harvard has a 4% acceptance rate and UNC has a 20% rate. Harvard is seen as the best university in the United States and one of the world's best. Harvard could easily accept an entering class from its applicants several times over.  UNC is one of the best public universities in the South, but nationally not on the scale of Berkeley, Michigan, or UCLA. (3)

Population statistics offer a different contrast. In a state where 3.6% of the total population is Asian, 12.27% of the students at UNC are Asians. Comparatively African Americans are over 22% of the state's populous and 8.7% of UNC's student body.  Asian Americans are 5.7% of the nation, and slightly over 29% of Harvard's undergraduates are Asian American. Hispanics and African Americans combined are total less than the Asian American student percentage.

The terrible secret about Affirmative Action, in relation to these two cases, is that opportunity and access, not hard work and effort seem to suggest future success and wealth. Using statistics and data, Blum and his allies are saying: why should whites and Asians sacrifice their potential to less qualified people? The truth about America remains: where you live and where you go to high school are the strongest determinants of if and where you will attend college. A good student at a good school still has the best chances for success. The opportunities at the best high school make attending the best colleges and universities possible. However, wealth cannot be discounted. If the best colleges still use the other criteria sans race to make judgements, admission will still favor the male over the female, the wealthiest before the brightest, the athlete before the student, and the legacy child before the poorer one.

Here is the other secret, Edward Blum never cared about Affirmative Action. It was an obstacle towards a larger goal. To counter this era of racial and socio-economic change, he wanted to restore and preserve the white male order.  Not coincidentally, the five of the six justices helped him fulfill his goals were male and five were white.  Now Blum and his colleagues can slowly take America back to the 1950s. They can thank Donald Trump for the assist.

Notes

1. As a racial entity Asian Americans make up roughly 20% of all students at the 8 Ivy League schools. That is more than the combined African American and Latino populations at several of the 8 institutions.  And when broken into sub-units the African American and Latino groups are just as diverse in racial and geographic backgrounds as the Asian American contingent. When polled, most Asian Americans said they support Affirmative Action. It is when posed as a racial argument that they tend to have negative feelings. Such an argument pits races against each other. But which groups have negative feelings and why? Is there proof that there is a quota of Asians at elite institutions? Or is there a quota of white students that organizations and universities are trying to maintain? And how are we defining mixed race students?  See https://studentsforfairadmissions.org/the-deception-of-affirmative-action/

2. Blum says he "singled out UNC Chapel Hill because the university filed a brief in support of University of Texas at Austin in a prior case that also went before the Supreme Court in 2016". That time, with different membership, justices upheld that race could be considered in admissions in a limited way. At the time, UNC argued in its brief that the university had considered a race-neutral method of admitting students across the state whose grades put them in a certain top percentage of their high school class, but university officials found that would have lowered the average SAT/ACT test scores of its admitted class. “Most people think that that's a pretty poor reason to continue using race based affirmative action, and that is why UNC was targeted,” Blum said. It is important to note that when Blum launched his actions against UNC, the state had not yet experience a boom in its Asian American population. See https://www.wunc.org/education/2023-06-29/tar-heels-react-to-historic-supreme-court-ruling-in-unc-chapel-hill-admissions-case

3. If one considers universities or colleges with acceptance rates below 10% or even below 20%, these constitute exclusive or elite institutions. Of this group, there are familiar names like Duke, Amherst, Williams, Swarthmore, MIT, Columbia, Yale, the University of Chicago, and the University of California. Some of these institutions are located in states, like California, that have ended Affirmative Action by state law. Not surprisingly to academics, but less so to the general public, organizations like SFFA have not waged campaigns against the majority that practice Affirmative Action. In fact, very few colleges and universities have been targeted at all, and it is not because of perceived Asian bias which may likely exist. I'm suggesting that the UNC case is an anomaly and that when you eliminate UNC from consideration, the Harvard case makes more sense as a form of legal misdirection.