J. Scott Applewhite/AP Photo
Activists demonstrate as the Supreme Court hears oral arguments in a pair of cases to decide the future of affirmative action in college admissions, October 31, 2022, in Washington.
It has become a media trope that the Supreme Court’s affirmative action ruling banning consideration of race in college admissions is no big deal, because in practice it only affects a small fraction of Black students at elite universities. The vast majority of Black college students attend nonselective institutions, and affirmative action plays little if any role in their admission.
A number of progressive commentators, including in this very outlet, have argued that we can now shift to giving preference based on class and adversity, categories that will invariably include disproportionate numbers of African Americans. We can also give more help to the institutions that most Black students attend. A New York Times piece by Jonathan Weisman even argued that the Court had done Democrats a favor by forcing them to shift their political emphasis from race to class.
But these arguments, if partly valid, miss the larger danger. The language of Chief Justice John Roberts’s ruling prohibiting consideration of race in remediation of historic patterns of exclusion is sweeping. “Eliminating racial discrimination means eliminating all of it,” he wrote.
Affirmative action affects not only education but employment and promotion, which in many ways is even more consequential. Given the language of the Court’s ruling, we can expect lawsuits from whites who didn’t get jobs or promotions on the grounds that the Black employee who got the post benefited from a corporate affirmative action program that is now constitutionally illegitimate.
Before the 1964 Civil Rights Act, patterns of racial exclusion in employment were pervasive. Even after the act, it was clear that passively prohibiting discrimination was not sufficient. That’s why there needed to be programs of affirmative outreach.
The fact that there are now Black executives and even CEOs of major corporations is testament to the fact that affirmative action works, in recruitment, hiring, and promotion. It also signifies that plenty of African Americans are highly qualified for posts from which they had been excluded. A corporate board of directors would never entrust a company to a CEO for reasons of diversity or tokenism. It took affirmative outreach and recruitment to demonstrate the racial blinders and high quality of Black candidates.
Corporate America became a big booster of affirmative action. A highly diverse workforce at all levels turned out to be good for business. But once the Court rules that this, too, is unconstitutional, corporations (which are not known for social courage) will drop affirmative action programs like the proverbial hot potato.
Those who came of age in the era of the liberal Warren Court tend to forget that for most of the life of this republic, the Supreme Court was a reactionary force.
Until now, the Supreme Court has generally accepted affirmative action programs in hiring and promotion, except in cases where employers used explicit racial quotas or disregarded test results in order to meet racial hiring goals, as happened when a more moderate Court overturned a New Haven program in 2009 that ignored test results in order to promote lower-scoring minority firefighters.
There is a broader connection between the impact of affirmative action in higher education and in hiring and promotion. The numbers of Black students at elite universities or in corporate executive suites may be small, but the composition of elites matters. It matters that our society has visible Black leaders of major institutions.
Barack Obama has said he benefited from affirmative action. Without it, he would not likely have been admitted to Harvard Law School and had the career trajectory that led to the White House. Absent corporate affirmative action, we’d see far fewer Black professionals at all levels.
To some extent, a new kind of affirmative recruitment program based on class and overcoming adversity can substitute for racially explicit targeting, but only partially. Richard Rothstein’s work on this is utterly persuasive. Rothstein is also spot-on when he reminds us of the core point that patterns of discrimination going back centuries, in the North as well as the South, are the result of deliberate state action. These patterns persist. Thus it is disingenuous in the extreme for the Court to deny race as part of the remedy.
What to do now? Universities and employers need to keep devising programs that include race and keep litigating. Even Roberts’s decision left the door open a crack when he wrote, “[N]othing prohibits universities from considering an applicant’s discussion of how race affected the applicant’s life, so long as that discussion is concretely tied to a quality of character or unique ability that the particular applicant can contribute to the university.”
The Court’s three recent, cynical decisions need to be seen in tandem. The ruling in the LGBTQ “free speech” case invites other forms of discrimination. If a web designer can refuse service to a same-sex couple on religious grounds, she can deny service on similar grounds to Jews or Blacks. The Court’s right-wing majority prohibits benign uses of race with one hand while it promotes invidious racial and sex discrimination with the other. And the third ruling, blocking President Biden’s program of student debt relief, will also disproportionately harm Black students, who tend to be far more reliant on college loans than whites. The Roberts Court is willfully blind, and it’s all of a piece.
Those who came of age in the era of the liberal Warren Court tend to forget that for most of the life of this republic, the Supreme Court was a reactionary force. Reformers had to contest the Court and find ways to make progress despite a string of retrograde rulings, from Dred Scott to Plessy to Lochner, as well as several decisions that stymied the early New Deal. Eventually, reactionary and corrupt justices such as Thomas and Alito will die (perhaps of sheer bile), and we will get a more balanced Court, if we can keep control of the political branches of government.
