The 50-Year Fight to Dismantle Affirmative Action

But the Supreme Court, at least in principle, is supposed to follow the law and the Constitution, not public opinion. In major decisions on affirmative action in 2003 (Grutter v. Bollinger) and 2016 (Fisher v. University of Texas), the court again upheld — in both cases by a single vote — the right of universities to consider race as a factor in college admissions. Justice Sandra Day O’Connor was the swing vote in 2003, and in addition to citing the diversity argument endorsed by Powell, she offered a new justification for affirmative action: “In order to cultivate a set of leaders with legitimacy in the eyes of the citizenry, it is necessary that the path to leadership be visibly open to talented and qualified individuals of every race and ethnicity.” Clearly influenced by amicus briefs filed by corporate and military leaders, her rationale, which highlighted a concern with maintaining the legitimacy of the social order, revealed the gap between elite and popular perspectives on the issue. Yet having saved affirmative action, she remained ambivalent about it, expressing her belief that “25 years from now, the use of racial preferences will no longer be necessary.”

The Supreme Court didn’t wait that long. In its new ruling, it said that racial preferences violate the equal protection clause of the 14th Amendment. Chief Justice John Roberts’s decision did clarify that “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.”

While race-conscious affirmative action is no longer permissible, it is worth noting that the Supreme Court ruling leaves intact many other forms of affirmative action — preferences for the children of alumni, preferences for the children of donors and preferences for student athletes, including for such boutique sports as sailing, fencing and squash. The consequences of this change are not entirely predictable, but based on what happened at the University of Michigan and the University of California, Berkeley, after they were barred from pursuing race-conscious admission policies, a sharp decline in Black and perhaps Hispanic enrollments at highly selective colleges and professional schools seems almost certain. To offset the loss, many colleges are likely to switch to a policy of affirmative action based on economic class. Such a policy would attenuate, although by no means eliminate, the racial impact of the Supreme Court’s ruling.

Affirmative action based on economic class is likely to enjoy broader public support than race-conscious affirmative action; according to a recent Washington Post poll, 62 percent of Americans believe that students from low-income families have an unfair disadvantage in getting into a good college. But affirmative action on its own, whether based on race or economic class, is far too limited a tool to realize the dream of the great civil rights movement of the 1960s for full racial equality. As we confront a world without race-conscious affirmative action, we would do well to remember the Rev. Dr. Martin Luther King Jr.’s admonition that to produce real equality, “the movement must address itself to the question of restructuring the whole of American society.”

Jerome Karabel is a professor emeritus of sociology at the University of California, Berkeley, and the author of “The Chosen: The Hidden History of Admission and Exclusion at Harvard, Yale, and Princeton,” among other works. He is writing a book on the United States as an outlier nation.

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