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The Death of Affirmative Action, Part 1

The U.S. Supreme Court has agreed to hear Fisher v. University of Texas, a case brought by a young woman who claims that she was discriminated against in the Texas undergraduate admissions process.  Many commentators on the left and right assume that Fisher marks the death of affirmative action.  Justice Kagan  recused herself; she was US Solicitor General and filed a brief when the case was before the Fifth Circuit.   However, few commentators consider who benefits from the platform and whether or not (and for whom) it achieves its goals.  For example, some blacks think affirmative action was only about them.  On the other hand white women may not recognize the entitlements they’ve gained due to affirmative action.  In part, the dialogue about affirmative action misses much.

Ironically, if affirmative action “dies,” some might argue that its demise is proof of its success for white women.  After all, the Fisher case is brought by a woman, and as women were (and continue to be) primary beneficiaries of affirmative action and civil rights laws, particularly in education (and business), perhaps this case hails a new day?  Many of our students cannot imagine a time just 30 years ago when at some of the nation’s most elite schools, such as Dartmouth, barely a handful of women were in the graduating class, or how law schools, now just about at parity,  refused to admit “qualified” women applicants.  Esteemed jurists and law professors claimed that women were not cut out for the rigors of law—their brains were too prone to melancholia and their hearts too wide and open to handle the fouler side of law (reading daily about battery, rape, and murder).  Judges refused to hire women as law clerks.

One need not reach back to the 1880s to get a sense of women’s exclusion in education (and the workplace), because class photos from the 1970s and 80s speak mouthfuls.  Images of women are few and far between in classes of 100 to 300 hundred men.  Certainly there were “smart” enough women in applicant pools, but based on their gender and misconceptions about their competence, women were regularly denied admission to historically male colleges.  Others did not apply, figuring that it would be futile—the Justice Marshall logic (he did not apply to the University of Maryland Law School because of the university’s vocal resistance to admitting blacks; Marshall attended Howard Law School instead).  Women’s colleges benefited from this pool of smart women with no other place to go.

Affirmative-action and civil-rights policies turned the tide, giving women legitimacy “to belong” in the academic halls of the elite universities, while also advancing a (now) settled point: that women deserve a place in business schools, law schools, medical schools, engineering departments, and math departments.  This is an important point; women did not suddenly become smarter in the 1970s, 80s, and 90s, and thus better qualified for admissions.  Civil-rights laws prevented universities that receive federal funding from discriminating against minority groups and women were included under that umbrella.  Women were able to leverage civil rights laws and colleges and universities had an incentive to broaden the scope of their admissions criteria to give women a fair shot at gaining admission.

The Fisher case and affirmative-action debates deserve more than a passing glance and reductive argumentation (framed only within the context of race), because post-Bakke, individuals suing universities for discrimination against them in the academic admissions process have been white women: Amanda Fisher (Fisher v. University of Texas); Barbara Grutter (Grutter v. Bollinger); Jennifer Gratz (Gratz v. Bollinger);  and Cheryl Hopwood (Hopwood v. Texas).  That white women lead the charge against affirmative action in these cases is worthy of note for a few reasons.  First, white women benefit significantly from state and federal affirmative-action programs (in higher education, small business loans, government contracts, etc.) and in the private sector with hiring and recent efforts to diversify boards of Fortune 500 companies.  Second, prior to revamped admissions practices in direct response to civil-rights laws, women had much less possibility of success in suing a university to admit them.  Discrimination in education and employment was simply tolerated.  In Barbara Grutter’s case, with the exact same record, it’s doubtful that she would have been admitted to the University of Michigan prior to 1975—as she was also an “older” student when she applied.  Civil-rights laws changed that; now protections exist to shield “older” students from discrimination.

Third, in each of these cases white men were admitted with lower test scores than the women suing.  More could be said about all of this.  But lastly, and perhaps most tellingly about affirmative action, white families, including husbands, partners, and children have benefited from the program not only emotionally (as a source of pride that comes with members of a family attending and graduating from college and graduate school), but economically.   The economic rise of the middle class and upper-income family is as much a story about affirmative action and access to an education and jobs for white women as it is about men and work.

As pundits consider the future of affirmative action, pieces of its legacy in the United States should be placed into clearer view, while looking ahead.  For example, how does affirmative action fit into other contemporary debates?  Asian students claim discrimination because whites with lower test scores gain admission to elite schools when they’ve been passed over.  Countering that, in recent decades, an organized lobby has suggested that “too many” Asians are taking seats that presumably were theirs.  (They claim Asian students have higher test scores, but emphasize that test scores are not dispositive of future success.)   Other relevant issues include the crisis in K-12 education, endemic poverty, high drop-out rates, and mass incarceration of black and Latino males.  If elementary schools can’t produce readers and writers, whether or not universities promote affirmative action might be moot.

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