By Hamid Adam Burkemper Khan

Introduction

            Existing debates on affirmative action admissions policies bring to the fore two conflicting arguments, specifically (1) that affirmative action judiciously levels the playing field for minority groups through its emphasis on a compelling state interest in diversity, and (2) that affirmative action violates the Equal Protection Clause of the Fourteenth Amendment and remains anathema to the existence of an equitable, colorblind society. By situating opposition to affirmative action policies within the context of both white privilege and America’s history of structural racial inequality, I seek to render cognizable the edifice known as colorblind racism. Next, through an analysis of legal case history, in conjunction with a thorough understanding of both the intended purpose of affirmative action as well as the contours of the Equal Protection Clause, I will reveal that affirmative action admissions decisions are a superior means to undermine structural inequality. Thus, officials implementing Affirmative Action in university admissions decisions need to reject colorblind ideologies and recognize that affirmative action admission decisions are not a violation of the Equal Protection Clause, but rather a logical continuation of its proper use.

The practice of racially conscious public policies, specifically Affirmative Action within university admissions decisions, directly contributes to an increasingly polemical debate at the state and federal level. The relative merits of each argument in this debate highlight myriad structural asymmetries that have ensued from America’s unique cultural history. Affirmative action itself bears several implications for the state and its role in race relations, and is best understood when situated within the paradigm of white privilege, and the putative benefits that white privilege confers on its intended beneficiaries. Legal case studies involving affirmative action reveal the most persuasive arguments for and against the policy, although there still remains a marked inability for the Supreme Court to arrive at an unequivocally clear resolution. Studies of landmark court cases, specifically Regents of the University of California v. Bakke and Fisher v. The University of Texas at Austin also yield significant insight into the notion of colorblindness, and are thus integral to an understanding of colorblind racism.

What is Affirmative Action?

            Affirmative action is a remedial, race-conscious policy enacted to “end the absence of certain kinds of people – those that belong to groups that have been subordinated or left out – from certain jobs and schools”(Bergmann 1996, 7). Enacted under the auspices of the Kennedy Administration in 1961, affirmative action was conceived under Executive Order 10925. Following Kennedy’s assassination, Lyndon B. Johnson heralded the reform into the Civil Rights Act, whereby its passage in 1964 effectively codified the policy into law. Located in section VI of the Civil Rights Act of 1964, the affirmative action clause reads:

“No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance”(Civil Rights Act, 1964)

Intriguingly enough, while affirmative action was not initially designed to include education, it later raised several threshold questions over its place in university admissions. Affirmative action policies later became the basis of several landmark court case decisions, and state institutions (particularly universities) receiving federal aid quickly realized that the policy directly applied to them pursuant to federal law. In education specifically, affirmative action evolved to suit the legal precedent espoused by Associate Supreme Court Justice Powell, who claimed the university had a “compelling state interest” in maintaining diversity among its student body. Where court opinions differ, then, are the supposed limits on discretion, specifically in how it should be allotted to universities seeking to achieve diversity in their admissions processes.

Affirmative Action in the Context of White Privilege

            To understand the potential of Affirmative Action as a policy providing equal protection under the law, the policy must first be situated within the context of white privilege. According to the notable anti-racism activist Peggy MacIntosh, white privilege is an “invisible package of unearned assets” (MacIntosh, 2007, 3) enjoyed among individuals by virtue of being white. MacIntosh situates her work within the paradigm known as white normativity, where whiteness, and all of the characteristics and behaviors associated with it, remains the unquestioned norm. MacIntosh considers whiteness not only as a package of unearned privileges, but also “conferred dominance”(MacIntosh 2007, 3). The invisibility of white privilege to its holders reifies the strength of the white normativity paradigm, where society conditions whites not to recognize the existence of their own privileges.

Apt and prevalent examples of white privilege, which affirm the existence of the white normativity paradigm, also function as a criticism to the argument that affirmative action admission decisions benefit undeserving beneficiaries. The basis of this argument lies in the claim that quotas allotted for minority students in the admissions process reward minorities exclusively because of their race, consequently allotting ethnic minorities additional places even when they demonstrate “inferior academic credentials”(Bergmann, 1996, 16). However, because white normativity is the prevailing cultural norm, it then follows that most existing public policies already aid undeserving beneficiaries – namely Caucasian individuals – simply by virtue of being white. MacIntosh provides several examples of white privilege that she enjoys, particularly being able to buy a house wherever she wants to live, regardless of her race, or administer her own finances without her skin color being considered a testament to her financial reliability (MacIntosh 2010, 3). However, while these reasons are cogent, it is the deep, structural disadvantages that minorities face that truly reveal the unique calculus of privileges that many whites enjoy.

Structural Inequalities as the Impetus for Affirmative Action

            The impetus for racially conscious admissions policies to catalyze racial equality efforts is the result of a complex nexus of structural inequalities, in conjunction with the intergenerational spread of wealth. This is illustrated with the practices of the Home Owners’ Loan Corporation (HOLC), whose racially restricted covenants from the 1930’s onward systematically denied housing loans to minorities attempting to live in central city neighborhoods, where commerce was superior (Massey 2003, 51). Accordingly, Oliver Shapiro’s contention that intergenerational success is based on the ability to “get in early” on real estate (Shapiro 1999, 22-23) effectively demonstrates how residential segregation has a multidimensional impact on socioeconomic success spanning generations. Because real estate is the central asset used to determine wealth, residential segregation systematically works to exclude blacks from wealth that whites purchased and inherited through generations. For example, a 2010 study by Edward Wolff revealed that the median net worth by race in 2007 was fifteen times higher for whites than for African Americans, and sixteen times higher for whites than Hispanics (Jack Turner 2013, 1). With $143,600 as the median net worth for whites, and comparatively paltry net values of $9,300 and $9,100 for African Americans and Hispanics respectively, it is painfully apparent how restrictive these discriminatory housing practices were on future generations attempting to acquire wealth.

The second problem that contributes to structural inequalities is the ideology of “colorblindness”, which is justifiably equated with colorblind racism. According to Edward Bonilla-Silva, colorblind racism is a complete disregard for historical inequality, achieved in part by pretending that race is no longer an inhibitor to success. Thus, practitioners of colorblind racism disregard racial history and focus on the equal opportunity to succeed, albeit without any consideration of racially endowed privileges (Bonilla-Silva 2004, 102). Among one of the most basic tenets of colorblind racism can include an emphasis on abstract liberalism, which is a free-market approach that views everyone, regardless of privilege, as unitary and equal actors in the market economy. The idea that everyone can succeed regardless of socioeconomic background engenders unrealistic expectations for groups beleaguered with economic obstacles, and unnecessarily conflates poverty with a poor work ethic. Consequently, those who believe in colorblindness typically favor policies that maintain the status quo, at the expense of those disadvantaged by it.

Legal Challenges to Affirmative Action

            A particularly illustrative example of the need for legal experts to reject colorblindness and see affirmative action as a logical extension of the Equal Protection Clause is visible in the landmark case, Regents of the University of California v. Bakke (1977). In this case, petitioner Allan Bakke (hereinafter Bakke) applied twice to the University of California at Davis Medical School. The University of California rejected Bakke twice, but the petitioner sought legal recourse upon discovery that sixteen of the one hundred places available had been reserved for minority applicants. Irate, Bakke sued to seek injunctive and declaratory relief, admission into the school, and to enjoin the use of admissions-based affirmative action policies. Divided, the Supreme Court ruled that Bakke must be admitted, but that the school could ultimately continue to afford racial preferences to minority applicants, albeit with narrower restrictions. According Bernard Schwartz in Behind Bakke, Affirmative Action and the Supreme Court, Supreme Court Justice Powell was openly skeptical of the admissions policy, and contended that the program’s motives to remediate the effects of societal discrimination and increase the number of physicians practicing in underserved communities were insufficient to justify racial preference, and violated the Equal Protection Clause of the Fourteenth Amendment (Schwartz 1988, 84).

The argument of Associate Justice John Paul Stevens, however, demonstrated overt colorblind rhetoric and directly ignored the importance of structural racism as the impetus for affirmative action. In his argument, he stated that the admissions policy did not cohere with Title VI of the Civil Rights Act, referencing the legislative history of the Act. Stevens asserts: “the legislative history of the statute makes it clear that Congress meant exactly what it said”(Stevens, 1978, 10) and “ those supporting the legislation gave repeated assurances that the Act would be color blind in its application” (Stevens 1978, 10). However, because discriminatory housing practices by the HOLC have had such a lasting impact, and because generational wealth, education, and access to resources is confined primarily within certain neighborhoods, Stevens has neglected to consider how structural inequality has made minorities (particularly African Americans) “excluded from participation in, and being denied the benefits of… any program or activity requiring Federal aid or assistance”(Civil Rights Act, 1964), pursuant to the Civil Rights Act. Moreover, by acting in contravention to Title VI of the Civil Rights Act, the Supreme Court has also violated the Fourteenth Amendment, which calls for “equal protection under the laws”(Equal Protection Clause 1791). By disregarding the structural inequalities that make minorities unable to participate in many institutions requiring federal aid, the Supreme Court has effectually reneged on its obligations to provide minorities with equal protection under the law. More generally, the use of the Equal Protection Clause here can be seen not as an attempt to regulate racial equality, but rather to perpetuate existing inequalities in race relations. This justification is what political science professor Jack Turner claims in a charged epithet to be “de jure white supremacy”(Jack Turner 2013, 1).

Intriguingly, it might also behoove further speculation to consider the viewpoints of Ralph A. Rossum, who analyzes the relative merits of affirmative action through its impacts on the stakeholders. Rossum, a political science professor from the University of Loyola, indicated that “unlike discrimination against racial minorities, the use of racial preferences for remedial purposes against whites will not inflict a pervasive injury on whites in that they won’t be treated as second-class citizens because of their color” (Rossum 1980, 116). Because minorities are disproportionately disadvantaged by racial discrimination, it is fruitless to claim that whites suffering discrimination from racial preferences are entitled to a comparable defense under the Equal Protection Clause. Admittedly, while Rossum is reporting in 1980 (three years after the Bakke case), where the racial impacts from Brown v. Board of Education were still more relevant, it would be foolish to dismiss the validity of his assertions based on temporal bias.

On a note of forbearance, many scholars would not share this viewpoint. In Terry Eastland’s Ending Affirmative Action: The Case for Colorblind Justice, he averred that “to license race as ‘a factor’ is to license its use as the deciding factor”(Eastland 1996, 69). Eastland posits the quintessential narrative against affirmative action, which is that minority candidates who are “undeserving” will ultimately cheat qualified whites out of their place. The stance is myopic, and ignores the unkind reality that race already is a factor, especially since the inequalities caused by racism render many hard-working minority applicants unable to attend college.

A second landmark case revealing the importance of affirmative action admissions within inequality interdiction, decided recently, includes Fisher v. The University of Texas at Austin.

In hindsight, while previous court decisions like Regents of the State of California v. Bakke created a divided court, what the court did make clear was that specific limitations needed to be included in the admissions decisions. This precedent carried over to Fisher v. The University of Texas at Austin, where Chief Justice John Roberts stated on behalf of the court that the University did not “apply the standard of strict scrutiny” that was delineated in Regents of the State of California v. Bakke, whereby diversity had to serve a “compelling governmental interest” and each applicant had to be evaluated individually. Consequently, the court found the practice to be a violation of the Equal Protection Clause, and awarded a summary judgment to the petitioner who sought to enjoin the use of affirmative action admission policy at the University of Texas.

The presence of colorblind racism is present in the opinion of John Roberts (the chief Justice who wrote the opinion for this case), who fails to understand the remedial importance of affirmative action admissions policies. According to Jack Turner, “what interests me is Roberts’ self-assured style of opposing race consciousness. That style bespeaks both a racial innocence born of privilege and an investment in an American “meritocracy” that just so happens to tilt in favor of whites”(Turner 2013, 1). In addition to pointing out Roberts’s white privilege, Turner aptly identifies the notions of abstract liberalism that enable such racially biased outcomes. Roberts, a beneficiary of that abstract liberalism, effectually construed the Equal Protection Clause as a means to defend the meritocratic college admissions approach.

In the Associate Justice Ruth Bader Ginsburg’s laconic dissent, she criticizes the petitioner’s assertion that the university should pursue a race blind process, with a holistic view of each applicant (Ginsburg 2013 14). On an interesting tangent, this dissent could also highlight other problems. For example, while the court rules that the University cannot categorically elevate the application status of minority students, the court conveniently ignores the fact that discriminatory policies – both past and present – have categorically excluded many people of color from institutions of higher learning. Conversely, whites have been categorically favored by various policies related to housing, education, and drug interdiction, yet it is somehow a violation of the Fourteenth Amendment when any type of racial preference is offered to minority groups.

Conclusion

            To recapitulate, affirmative action admission policy is a favorable counter-narrative to colorblind racism, and can be applied fairly under the Equal Protection Clause. The history of structural inequalities creates a firm impetus for a remedial, race conscious policy, and current norms of white normativity work to further vindicate the necessity of a level playing field. Although legal precedent would favor the use of the Equal Protection Clause to keep qualified white applicants from being stripped of their places, the reality remains that this application of the Equal Protection Clause renders the minority community vulnerable to the accumulated effects of structural racism overtime, and thus prohibits minorities from attaining membership at college institutions. This application is an iniquitous use of the Equal Protection Clause, and ought to be rectified through racially conscious alternatives.

Works Cited

Bergmann, Barbara R. In Defense of Affirmative Action. New York: BasicBooks, 1996.

Bonilla Silva, Race Matters In “Post-Racial” Obamerica and How to Climb Out Of the Rabbit Hole”. Columbia, 2011.

Civil Rights Act, 14-26 (1964).

Eastland, Terry. Ending Affirmative Action: The Case for Colorblind Justice. New York: Basic Books, 1996.

“Fourteenth Amendment to the United States Constitution.” The Fourteenth Amendment. Accessed March 16, 2015.

Fisher v. The University of Texas at Austin. The United States Supreme Court. 13 Feb. 2013.

Ginsburg, Ruth Bader. Dissenting Opinion: Fisher v. The University of Texas at Austin. The United States Supreme Court. 13 Feb. 2013.

Lipstitz, George. The Possessive Investment in Whiteness: New York, 2001

MacIntosh, Peggy. “White Privilege: Unpacking the Invisible Knapsack.” Accessed March 16, 2015. http://www.nymbp.org/reference/WhitePrivilege.pdf. 

Regents of the University of California v. Bakke. The United States Supreme Court. 26 June 1978

Rossum, Ralph A. Reverse Discrimination: The Constitutional Debate. New York: M. Dekker, 1980

Schwartz, Bernard. Behind Bakke: Affirmative Action and the Supreme Court. New York: New York University Press, 1988.

Stevens, John Paul. Regents of the University of California v. Bakke. The United States Supreme Court. 26 June 1978.

Turner, Jack. “The Contemporary Condition.” : The Racial Innocence of John Roberts. Accessed March 16, 2015. http://contemporarycondition.blogspot.com/2013/10/the-racial-innocence-of-john-roberts.html.