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How to think about affirmative action, now that it's gone

This past week, the U.S. Supreme Court put an end to affirmative action in higher education, outlawing race-conscious admissions and overturning nearly 50 years of precedent.¹

Affirmative action did itself in.

Ironically, without the affirmative action policies of the past several decades, it is unlikely that African-American Supreme Court Justice Clarence Thomas, who joined the majority in the Fair Admissions opinion, would ever have become a Supreme Court justice, let alone a lawyer.

Justice Thomas was admitted to Yale Law School under affirmative action policies in effect in 1991. His time (and mistreatment at law school because of his race) is well documented in several interviews and his 2007 memoir.

"As much as it stung to be told that I'd done well in the seminary despite my race, it was far worse to feel that I was now at Yale because of it." - Justice Clarence Thomas

Thomas continued to benefit from race-based preferences throughout his career, until he made his way to the Supreme Court, where his appointment by George Bush was designed to replace the first Black justice, Thurgood Marshall, with another Black justice and designed “to make it more difficult for many of the same civil rights organizations and southern blacks, who opposed Judge Robert Bork, to oppose Justice Thomas, by nominating a Black man.”

Without the many benefits of affirmative action policies that Justice Thomas received, the Supreme Court last week would be missing one crucial vote, and it’s very possible the ruling would have gone very differently.

Affirmative action is ending even as things get worse

The Court’s ruling in Fair Admissions comes at a time when the need for affirmative action is more important than ever before. This is because except for White and Asian-Americans, representation of other ethnicities in well-ranked American colleges and universities has declined since 1980.

Today, Black students make up approximately 9% of incoming freshman at Ivy League schools. Thirty years ago they made up 15%

Why? Because affirmative action helps, but it isn’t a magic bullet. A cascading set of obstacles contribute to diminished representation of minority students (and low-income students irrespective of racial background) in higher education. Though affirmative action has helped many achieve a college education, their representation has fallen in the upper quartile of selective colleges and universities.

The end of affirmative action in higher ed is likely to make this trend worse, not better.

Affirmative action still exists. For some people.

There is one way to ensure you get into a good school: find a parent who already went to one.

According to non-profit Ed Mobilizer, American colleges and universities are the only ones worldwide that prioritize "legacy candidates" - e.g. the practice of favoring applicants with family ties to alumni or donors to the university.

So if your mom went to Harvard, chances are you are getting in too!

Don't take my word for it: more than 36% of Harvard’s class of 2022 are students with a family member who attended the university.

Enrollment on the basis of legacy vs. race (Black) at several higher education institutions. As you can see, its affirmative action policies, and not legacy admissions creating the inequality in admissions here <sarcasm>.

Legacy admissions are problematic on a number of levels, but most importantly they rely on generations of educated family members, thus often prioritizing wealthy, usually white or Asian students. In turn, their admission continues to perpetuate a cycle of educational inequality that excludes students from other backgrounds.

Fixing legacy admissions is easy. The vast majority of college administrators don’t support them and both Republicans and Democrats have expressed interest in ending the practice. Really the only holdouts are many of the elite colleges themselves. Shocking, I know.

What can you do?

Sign the pledge. Join activists like Viet Nguyen who created the “Leave Your Legacy” pledge which helps alumni contact their alma mater to say they will not donate any money until legacy preferences are eliminated.

Build diverse institutions … anyway. You can build a diverse institution even without affirmative action laws in place, it just requires intention and commitment. A diverse workforce or student body is very good for business. Diverse teams across gender, race, religion etc., are happier, generate more revenue and experience less turnover. Even though affirmative action in higher education was outlawed in Arizona years ago, we’ve become an increasingly diverse institution at Arizona State University since then due to independent policies and values that prioritize inclusion over exclusion.

ASU Charter: ASU is a comprehensive public research university, measured not by whom it excludes, but by whom it includes and how they succeed; advancing research and discovery of public value; and assuming fundamental responsibility for the economic, social, cultural and overall health of the communities it serves.

Support institutions committed to access and inclusion. Purdue University is so committed to ensuring everyone can attend college that it hasn’t increased tuition for twelve years. Unsurprisingly, applications and enrollment (as well as donations) have gone up, so there has been no reason to increase tuition. Are you a college student? Apply to these kinds of institutions. A high net worth individual? Donate to places like Purdue. Good colleges are proud of how many students they accept, not how many they turn away. Support institutions that buy into the logic of inclusion and access over exclusion and prestige.

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The “money where your mouth is” look.

"After that affirmative action ruling yesterday, my phone was blowing up. I was talking to my friends and said, ‘I need to make sure Black folks always have a place at Auburn’." — Charles Barkley after donating $5 million in scholarships to his alma mater for exceptional Black and Hispanic students.

You should know that this isn’t the end of affirmative action. The Supreme Court’s ruling applies only to the elimination of race-based preferences in higher education. The term “affirmative action” has been around for almost a hundred years, first applied in the labor rights movement and mentioned in the NLRB. There is a danger that this case could be used to expand the banning affirmative action policies beyond higher education, but that would result in a dramatic reshuffling of our legal landscape, including perhaps the elimination of civil rights protections for employees under the Civil Rights Act of 1964.

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