Is the Death of Affirmative Action Imminent?  

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This Monday, America celebrates the third-ever federal holiday of Juneteenth, commemorating enslaved African Americans’ emancipation. And as we do, the consensus among legal scholars is that The Supreme Court will soon be ending affirmative action, at least in the context of college admissions. Does that mean it achieved its purpose, or are we abandoning the underlying premise?


A pair of cases have been argued, and we will know the results within two weeks. One involves Harvard, and the other the University of North Carolina. The conventional wisdom is that race-conscious admissions will end.


Currently, race is permitted to be a factor in the admissions’ calculus, meaning one factor among many to be considered as schools seek to create a diverse student body for everyone’s benefit. Quotas, on the other hand, are unconstitutional.


That’s the bottom line after The Supreme Court has taken up several major affirmative action cases. One of those cases was in 2003: Grutter v. Bollinger, involving the University of Michigan law school. Justice Sandra Day O’Connor famously wrote:


“We expect that 25 years from now, using racial preferences will no longer be necessary.” 


It’s been 20 years; is it still needed and legally defensible?

Opponents of race-conscious admissions argue that at schools like Harvard, Asian Americans are being discriminated against, where, despite excelling academically, they often are scored lower on subjective personality traits.


All sides seem to agree that without race as a factor in admissions, the percentage of black and Hispanic students admitted will drop, while white and Asian-American admissions will rise. That happened in California after Proposition 209 was passed, which prohibited state governmental institutions from considering race, sex, or ethnicity in public employment, public contracting, and public education.


At the University of California schools, the percentage of underrepresented groups declined. And it remains to be seen how expansive the reasoning of an opinion banning affirmative action in college admissions might be. It could very well extend to the workforce.


Schools will likely respond with race-neutral alternatives such as admissions guarantees based on class rank or focus on socioeconomic diversity. One man has largely driven the current debate; an affirmative action opponent named Edward Blum.  He has a group called Students for Fair Admissions or SFFA.


He was also a catalyst in the successful challenge to the voting rights act of 1965 in the 2013 case of Shelby County v Holder. There, the court struck down as unconstitutional the formula about laws needing preclearance based on states’ histories of discrimination in voting. The court said it was based on data over 40 years old, making it “no longer responsive to current needs.”


Voting rights and affirmative action sprung from the same era. Two months before he signed the voting rights act, on June 4, 1965, President Lyndon Johnson delivered the commencement address at Howard University. It was an important speech.  One is remembered as establishing the intellectual framework for affirmative action. President Johnson acknowledged the treatment of blacks from slavery to Jim Crow and said this:


“But freedom is not enough. You do not wipe away the scars of centuries by saying: now you are free to go where you want, and do as you desire, and choose the leaders you please.

You do not take a person who, for years, has been hobbled by chains and liberate him, bring him up to the starting line of a race, and then say, “You are free to compete with all the others,” and still justly believe that you have been completely fair.

Thus, it is not enough just to open the gates of opportunity. All our citizens must have the ability to walk through those gates.”


Johnson said that equal opportunity is essential but not enough; men and women of all races are born with the same range of abilities, but the ability is not just a product of birth. Fifty-eight years later and we’re still having the same debate.


South Carolina senator Tim Scott announced his presidential campaign by reflecting on his own story:


“We live in the land of opportunity. We live in the land where it is absolutely possible for a kid raised in poverty in a single-parent household, in a small apartment, to one day serve in the people’s house and maybe even the White House.”


My colleague David Axelrod asked his old boss, former President Barack Obama, to react to Scott’s comments:


“If a Republican – who may even be sincere in saying I want us all to live together – doesn’t have a plan for how do we address crippling generational poverty that is a consequence of hundreds of years of racism in this society and we need to do something about that if that candidate is not willing to acknowledge that, again and again, we’ve seen discrimination in everything from job — you know, getting a job, to buying a house, to how the criminal justice system operates… if they’re not doing that, then I think people are rightly skeptical.”


Many statistics about African Americans confirm Obama’s feelings that things are not yet equal. Looking at education first: In 2021, 24.7% of non-Hispanic blacks had a bachelor’s degree or higher, compared to 38.3% of non-Hispanic whites.


As for the quality-of-life figures — The median income for the average non-Hispanic black household was $48,297. For non-Hispanic white households — nearly $78,000. 19.5% of non-Hispanic blacks were living at the poverty level, compared with 10% of non-Hispanic whites.


The life expectancies at birth for blacks are 70.8 years and 76.4 years for whites. And homicide was the leading cause of death among black males ages 15-34 – 20 times higher than their white counterparts.


By those measures, we’ve still not wiped away the scars of centuries. The gates of freedom have been opened, but some among us, namely many African Americans, are still not walking through those gates at the same pace as others. Not all that disparity is attributable to the unforgivable crime against humanity, but surely remnants remain.


There’s the challenge.  To simultaneously salute the opportunity afforded to Tim Scott and Barack Obama while not losing sight of others who look like them but are still behind. As I noted, this discussion is happening just as we celebrate the recently-instated federal holiday of Juneteenth; the whole country is taking a pause to honor the significance of the emancipation of enslaved African Americans.


That is all well and good, but as Obama put it, “How do we address crippling generational poverty that is the result of years of racism in our society?”


Using the perfect blend of analysis and humor, Michael Smerconish delivers engaging, thought-provoking, and balanced dialogue on today’s political arena and the long-term implications of polarization in politics. In addition to his acclaimed work as nationally syndicated Sirius XM Radio talk show host, newspaper columnist, and New York Times best-selling author, Michael Smerconish hosts CNN’s Smerconish, which airs live on Saturday at 9:00 am ET.


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