Affirmative Action—Past, Present, and Future

By Karen Federman Henry

Like many pre-law students, I started studying the United States Constitution in college. I remember my professor commenting that the Constitution “protects the minority.” This was not so much a focus on a particular religious or racial category, but more a synthesis of the idea that the majority view easily prevails on any given issue, but it may not be the correct approach for society to use. A prime example has been this country’s civil rights movement—for too many years, the majority view allowed slavery, limited voting rights, and segregation in schools, housing, and employment.

The fundamental elements of the Bill of Rights, due process, and equal protection did little to protect minority views until they were jump-started by the Civil Rights Act in 1964. Even then, the journey trudged along slowly on an arduous path of turmoil. By 1966, the term “affirmative action” began to describe the efforts to promote measures that would disallow discrimination in hiring and education. Part of the discussion included whether affirmative action programs established a quota system that would require employers to hire a certain percentage of minority employees and a similar policy for school admissions. The debate reached a stalemate—without quotas, how could anyone confirm that an employer or school admissions office had implemented non-discriminatory practices? Yet, did the employer or school still have the ability to choose the best people for the jobs available and the academic environment? Even those who benefitted from the program would wonder—was I selected because of strong qualifications or just to fulfill a quota?

During the decades that followed, the pendulum continued to swing back and forth. Although the Supreme Court acknowledged in University of California v. Bakke, 438 U.S. 265 (1978), that affirmative action could not justify reverse discrimination, it did not take long to retreat and explain that modest quotas were permissible and satisfied constitutional principles. See Fullilove v. Klutznick, 448 U.S. 448 (1980). Local governments began addressing discrimination in their procurement practices, but found themselves caught in a dilemma—the percentage selected for ensuring the use of minority firms needed to bear a relationship with past or present discriminatory practices. Making these programs subject to a strict scrutiny standard meant that a jurisdiction could not establish a program to avoid discrimination or to strengthen its selection practices, but could do so based only on actual evidence that discrimination had occurred. City of Richmond v. Croson, 488 U.S. 469 (1989). In effect, affirmative action had evolved to a point where quotas became indefensible, yet no clear mechanism to measure successful programs took its place.

Instead, states and local governments enacted laws that prohibited discrimination and encouraged diversity in all decisions, without establishing quotas. Even these facially neutral programs met with challenges that culminated in last year’s decision in Fisher v. University of Texas, 570 U.S. ___ (2013), and this year’s decision in Schuette v. Coalition to Defend Affirmative Action, 572 U.S. ___ (2014). The Court highlighted the paradox in Fisher by declaring that universities could consider race when promoting diversity in admissions, but emphasizing that they must do so only when race-neutral options do not suffice.

The recent decision in Schuette shows that the evolution of the concept of affirmative action continues to trigger energetic debate. The Court upheld a state constitutional amendment that banned public universities in Michigan from using a race-sensitive admissions policy, which suggests that the state has found a race-neutral option for ensuring diversity in its admissions practices. But the Court reached this result with only a plurality vote that included concurring opinions with multiple rationales and drew an emphatic dissent from Justice Sotomayor showing that the debate is far from resolved. The majority opinion rephrased the issue so that it did not focus on the constitutionality of a race-conscious admissions policy, but instead, addressed the policy from the perspective of the voters. The decision, therefore, held that the voters had the right to prohibit racial preferences in the way that Michigan voters had chosen to do. The concurring decisions offered slightly different rationales. Justice Scalia focused on whether the neutral state action reflected a racially discriminatory purpose, and disagreed with many aspects of the majority decision. On the other hand, Justice Breyer highlighted the importance of an individual’s ability to participate in the political process and the fact that the decision on the school admissions policy was made by the voters, rather than unelected individuals.

Despite the array of justifications for the Court’s decision, Justice Sotomayor wrote a detailed dissent explaining the history of race-sensitive admissions policies and noting the inconsistency of the majority’s reasons with prior decisions of the Court. Bolstering her analysis with statistics that show the need for race-conscious policies when universities seek to enhance the diversity of their student population, Justice Sotomayor considered the prohibition of the use of those policies to conflict with the Court’s prior decisions allowing consideration of race when seeking to increase diversity. In fact, the dissent sounded like my college professor in commenting that the majority opinion failed to preserve meaningful protection of the minority view’s participation in the political process.

In the end, all of the commentary raises valid points that need to remain part of the discussion. At the outset of the civil rights movement, President Johnson acknowledged that declaring all participants to be equal does not make it so—the disparity in educational backgrounds and social circumstances prior to entering college-level study and the workplace contribute to diverse viewpoints but do not always include equal merit. Until opportunities truly become equal, a focus solely on qualifications or testing scores may, indeed, perpetuate discrimination. Yet, quotas did not solve the dilemma either. We can all agree that demanding non-discriminatory practices in employment, education, and housing benefits all members of the community. The difficulty remains in identifying a methodology that achieves the goal without creating an equally negative result in the process. The plurality decision of the Supreme Court in Schuette demonstrates that the debate and the effort to promote diversity will continue well into the future.

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