Keynote Address for Constitutional Law:
The End of Affirmative Action
Part of the Signature DIAlogue Webinar Series of the
Los Angeles County Department of Human Resources
Thank you for the opportunity of reflecting on Affirmative Action, particularly the two recent Supreme Court decisions that struck down the admissions policies of Harvard University and the University of North Carolina. I’ll approach this topic as both an 89-year-old retired history professor and a half-century diversity consultant/public lecturer who actually witnessed the birth of affirmative action.
The six-decade affirmative action journey involves two intersecting stories: a vision story and a systems story. Both are rooted in the civil rights movement and were launched officially by President John F. Kennedy’s March 6, 1961, Executive Order 10925.
First, the vision story. Affirmative action began with the following simple but profound vision. When the 1960’s arrived, after nearly two hundred years of the United States as a nation, racial and sex inequality were embedded in our societal fabric. This inequality resulted partially from institutional practices. To help address this glaring reality, the United States needed to make institutional changes in pursuit of its unfulfilled promises of equality and inclusivity. I call this visionary affirmative action.
Then there was the systems story. As posited by Presidents John F. Kennedy and Lyndon B. Johnson, one step in achieving that vision was to modify such institutional processes as hiring, contracts, and admissions, particularly regarding people from minoritized groups. That required the use of race and sex categorization. I call this categorical affirmative action. However, from its inception, this systems approach faced three complications: temporal, procedural, and categorical.
First, temporal. Affirmative action in college admissions was envisioned as a booster rocket to propel long overdue changes in the American journey. The booster rocket was viewed as a temporary device, but there was no specified ending date at which point it would no longer be needed.
Second, procedural. Might the use of categorical racial and sex categories create some deleterious unintended consequences? Might some groups be hurt by it? Could this be viewed as “reverse discrimination”?
Third, categorical. How should categories be used, including who should fit into what categories? The 1967 Loving v. Virginia Supreme Court decision, which nullified state-level anti-miscegenation laws, expanded intermarriage as an option. This contributed to the dramatic last-half-century growth of our nation’s mixed-heritage population. With three immigrant grandparents — Mexican, Ukrainian, and Austrian — I am the product of intermarriage. I’m sure many of you are, too. In recent years additional categorical complications have arisen, stemming from changing perceptions of gender identity. In other words, fixed categories of heritage and identity, upon which categorical affirmative action relies, are increasingly being challenged.
Over the years, legislation, court decisions, and shifting institutional practices regarding categorical affirmative action addressed these three issues. For example, the use of specified racial and sex quotas disappeared by the end of the 1970’s. Higher education reduced its emphasis on affirmative action’s benefits for minoritized individuals and expanded its emphasis on affirmative action’s value for the entire university. By using that argument — the overall campus value of student diversity — defenders of categorical affirmative action won a number of court cases.
At the same time, vision-driven affirmative action was bringing about major changes in higher education. This included the growth of ethnicity and gender-related curriculum, research, student services, and other policies. Yet even as vision-driven affirmative action gained momentum, categorical affirmative action proved increasingly vulnerable.
In 1996, California voters approved Proposition 209. The proposition read: “The State shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting.”
I voted against Proposition 209 because I believed –- and still believe — that we continue to need that booster rocket. But I also recognize the complications inherent in categorical affirmative action. Proposition 209’s sudden elimination of the booster rocket took its toll. But it also forced California institutions to develop new thinking and strategies in order to continue pursuing the vision.
This brings us to June 29, 2023 and the two Students for Fair Admissions decisions against Harvard University and the University of North Carolina. These two decisions struck down categorical affirmative action, but not visionary affirmative action. In fact, in an ironic way, two dimensions of the Court’s decisions implicitly embraced visionary affirmative action.
First, the decision recognized that group historical trajectories have been decidedly unequal. As U.S. Supreme Court Chief Justice John Roberts wrote: “nothing in this opinion should be construed as prohibiting universities from considering an applicant’s discussion of how race affected his or her life, be it through discrimination, inspiration, or otherwise.” In other words, although simply belonging to a racial category can no longer be considered in admissions, individual racial experiences can be considered.
That’s how the court majority tried to thread the needle between the two affirmative action stories. On the one hand, the explicit rejection of categorical affirmative action based on the metrics of personal identity. On the other hand, the implicit support of affirmative action as a vision through the recognition of unequal racial experience.
Then there was a second irony. The court explicitly excluded U.S. service academies from the scope of its decision. As stated in a footnote: “This opinion also does not address the issue, in light of the potentially distinct interests that military academies may present.” In other words, because of their “potentially distinct interests,” such exclusive public higher education institutions as West Point, Annapolis, and the Air Force Academy can continue to use categorical race and sex as admissions factors. These two caveats –- individual experience and potentially distinct interests –- may have inaugurated a new chapter in the affirmative action journey.
So what about the future journey of affirmative action in the aftermath of the Students for Fair Admission decisions? A number of things are already happening.
First, the ideological forces that generated the Harvard and North Carolina cases are not resting. They are continuing to attack not just categorical affirmative action, but also the vision of a more equitable and inclusive society. It’s happening in courts, state legislatures, city councils, and school board meetings: all part of the ongoing struggle over what kind of nation we want to become.
Second, lawyers, scholars, and institutions are rapidly adjusting to the decision. In the process they are addressing both systems and vision. Consider the following examples.
The July 17, 2023, Inside Higher Ed, carried an article by Jeffrey Lehman, dean of the University of Michigan School of Law when it successfully defended its affirmative action policy leading to the 2003 Grutter v. Bollinger decision. Lehman laid out a five-step vision-based process for creating an affirmative action plan that might comply with the recent Court decisions. According to Lehman, both Michigan and later the University of Texas in the Fisher decision succeeded because they clearly stated their objectives. In Michigan’s case it was to prepare students to be “effective contributors to a racially integrated society” by breaking down racial stereotypes through diversifying the student body. The recent Supreme Court decision noted that “neither Harvard nor UNC claims to be using the critical mass concept.”
Meanwhile dozens of colleges have created new applicant essay prompts that build on the Supreme Court decision. For example, Sarah Lawrence College added the following essay option: “Drawing upon examples from your life, a quality of your character, and/or a unique ability you possess, describe how you believe your goals for a college education might be impacted, influenced or affected by the Court’s decision.”
Then there is the decision’s acknowledgement of the “potentially distinct interests that military academies may present.” What if other kinds of higher education institutions have such “potentially distinct interests”? Some religion-connected higher education institutions are reportedly considering the embedding of “racial equity” among their institutional interests. Might this provide a bridge between visionary and categorical affirmative action?
In other words, the Students for Fair Admission may have spurred an overdue renaissance in affirmative action thinking. That is the kind of re-thinking that has been happening in California since the 1996 passage of Proposition 209.
This leads us to the inevitable question: has affirmative action worked? In particular, has visionary affirmative action succeeded even when categorical affirmative action was eliminated?
Now we’re engaging in what historians call counter-factualism. What might have happened if the facts had been different? What might have happened had the South won the Civil War? Or if the United States had not developed and used the atomic bomb? Or if there had been no affirmative action?
Obviously we can’t rewind history, but we can consider the evidence. So I’ll play the age card of someone who has witnessed more than sixty years of history influenced by the affirmative action vision and at times propelled by affirmative action categorical systems?
From the beginning, the higher education affirmative action journey was about far more than metrics. It also involved curricular reform, such as ethnic studies, gender studies, and disability studies. It involved support services for marginalized students so that they could obtain the full benefits of our educational system. It involved diversity training to help address attitudes and perceptions. It involved administrative steps to remove systemic obstacles to inclusivity and equity.
Did it work? I could submerge you in statistics, but instead I’ll present side-by-side photographs of my own campus, the University of California, Riverside. One photograph of UCR during the early days of affirmative action; another of today. As you listen, ask yourself the question, do you really think these changes would have occurred without affirmative action, both the vision and, for a time, the categorical system?
***When I began at UCR in 1968, Chicano students made up less than two percent of our student body. Today UCR is a Hispanic Serving Institution, with Latinos making up more than one third of UCR undergraduates and nearly one fifth of graduate students.
***I arrived at UCR as the second Chicano professor in campus history. There were two Black faculty members. Today UCR is replete with Black, Latino, and Asian American professors. My department has two Native American professors, including an endowed chair in Native American Studies, which I helped establish as History Department chair.
***UCR had one course on Chicanos, Chicano Sociology. In 1969, we had to battle to establish programs in Black and Chicano Studies, which I chaired for seven years. Today we have a Ph.D. program in Ethnic Studies, while traditional departments offer myriad courses on diversity and have produced hundreds of doctorates on the topic. Three years ago the UCR School of Medicine drew me out of retirement to co-direct its new curriculum in Health Equity, Social Justice, and Anti-Racism.
***In 1968, White men monopolized UC administrative positions. Nothing against White men. One of my immigrant grandfathers was White. I’m just reporting the facts. Since then UCR has had two Chicano chancellors, a man and a woman. Today the dean of my college is African American. Our campus’ new graduate dean is a Brazilian woman. My medical school dean is a Black woman and her academic dean is a Latino.
How about systemwide? Today an African American man is president of the UC system, a Puerto Rican woman is chancellor of the California State University system, and a female immigrant from India is chancellor of the California Community Colleges.
If we expand our vision to K-12 education, we find similar evidence. In 1971 I served on the first California statewide task force to assess the treatment of race and ethnicity in social studies textbooks. I want you to listen carefully to the guideline that we were instructed to follow. Section 9305 of the California State Education Code mandated — and please take a deep breath as you consider this language from the 1960’s –- that textbooks must “correctly portray the role and contributions of the Negro and other ethnic groups.” That was being “woke” in the early days of affirmative action.
From that task force emanated some of the leadership of a new field called multicultural education, in which I became deeply involved. Multicultural education infused K-12 curriculum and teaching throughout the country. Most of you have benefited from it. Today multicultural education is being challenged in many states and school districts. The pursuit of equity and inclusivity has never been easy.
And how about pre-school? My book, The Children Are Watching: How the Media Teach about Diversity,” led to my becoming the Creative/Cultural Advisor for “Dora the Explorer” and “Go, Diego, Go!” Were those two shows the products of affirmative action the categorical system? No, but they certainly reflected affirmative action the societal vision.
So what do you think? Might all of these changes have occurred without affirmative action? For example, by merely being the inevitable by-products of demographic change? I doubt it. The long arc of pre-affirmative action U.S. history provides little evidence to suggest that demographics alone would have created this kind of social change. Our nation desperately needed the jolt brought by affirmative action, both the vision and the categorical system.
So I’ll conclude by addressing today’s question: did the recent Supreme Court decisions end affirmative action? Let me answer in three ways.
First, the decision may mark the end of categorical affirmative action, at least in the ways used by Harvard and North Carolina. But California has not been using categorical affirmative action for the past three decades.
Second, as suggested by the decision’s caveats about racial experience and distinct interests, admissions decisions and other institutional policies may still be open to alternative approaches to affirmative action.
Third, while the decisions eliminated certain systemic approaches, they did not eliminate dreaming nor did they forbid efforts to pursue the dream of a more equitable and inclusive society, even in the face of today’s virulent and vitriolic opposition.
So I’ll conclude with the wise advice of Jill Orcutt of the American Association of Collegiate Registrars and Admissions Officers: that institutions should review and revise their applications to ensure legal compliance, but should also maintain a steadfast commitment to institutional values. The visionary affirmative action journey continues.
He also edited the four-volume Multicultural America: A Multimedia Encyclopedia (2013).
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