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THE 50-YEAR CULTURE WAR OVER AFFIRMATIVE ACTION MAY BE COMING TO AN END

The debate has long tapped into American resentments and anxieties. Its fate
once again lies in the hands of the Supreme Court.

 * By Fabiola Cineas
 * on June 21, 2023 6:00 am


Richard A. Chance for Vox

When Clarence Thomas started his first semester of law school during the summer
of 1971, a familiar fear set over him: He knew he could succeed academically,
but he was intimidated by his new surroundings on Yale’s tree-lined urban campus
— and also terrified to fail.



During his first week of classes, he wondered how his peers were already
comfortably decoding legal doctrine and whether he’d ever be able to catch up,
he would later recount in his memoir My Grandfather’s Son. Thomas spent part of
his childhood in a rural Georgia community, where he lived in a shack, fetched
water from the woods in lard buckets, and slept in a chair for a year when he
was 6 years old. He questioned his abilities not because he was Black, but
because he had grown up poor.

In New Haven, he was “among the elite,” he wrote, and “no amount of striving”
would make him one of them. Though he was eager to prove that he could achieve
against the odds, just as he had done in the seminary and at College of the Holy
Cross, he soon came to believe that his academic accomplishments were clouded by
something beyond his control: racial preference, or, as we know it today,
affirmative action.

By the time Thomas set foot on Yale’s Gothic-inspired grounds, affirmative
action was “a fact of life at American colleges and universities,” he wrote,
filling institutions with marginalized students and faculty in part to correct
historical exclusionary practices in education and employment. Though it is
unknown how many institutions used affirmative action in admissions at the time,
Yale Law School certainly did. It began using race-based preference in
admissions in 1971, setting aside up to 10 percent of seats in each class for
students of color. When this produced what the former dean of the law school
called “remarkably weak” students, the university devised standards on which to
judge the pool of students of color separately, while taking into account
typical benchmarks — undergraduate grades, LSAT scores, and the quality of an
applicant’s undergraduate institution.



Thomas, admitted under these standards, was one of 12 Black students out of
about 160 students admitted for the class of 1974. He publicly supported
affirmative action as a member of the Black Law Students’ Association, which
urged the school to recruit more Black faculty and students, but the pain of
stigmatization privately shifted his views. “As much as it stung to be told that
I’d done well in the seminary despite my race, it was far worse to feel that I
was now at Yale because of it,” he would write. He believed that economically
disadvantaged students were in a position to be helped through affirmative
action; after all, legacy students at Yale got preferential treatment in
admissions. But disadvantage couldn’t be assumed solely on the basis of race, he
thought.

Related

THE SUPREME COURT DISCOVERS THAT ENDING AFFIRMATIVE ACTION IS HARD

Thomas began to believe that he was paying a high price for affirmative action,
a conviction that followed him all the way to his current position as the
longest-serving justice on the Supreme Court. “Every time you walked into a law
class at Yale it was like having a monkey jump down on your back from the Gothic
arches,” he told a reporter in 1980. “The professors and the students resented
your very presence.” Thomas believed that affirmative action made him a test
dummy for integration and the liberal paternalism of Northern whites, so much so
that he has mocked the value of his degree altogether. After struggling to get a
job after graduation — which he attributes in his memoir to the notion that “a
law degree from Yale meant one thing for white graduates and another for blacks”
— he affixed a 15-cent price sticker from a cigar box to the frame of his law
degree to remind himself of the “mistake” he made. Instead of hanging the degree
on the wall of his Supreme Court office, he keeps it locked away in the basement
of his Virginia home.

Thomas’s tangled relationship with affirmative action is emblematic of a larger
debate that’s captivated America for decades. Since schools began using
race-conscious policies, the nation has seen waves of campus protests, op-eds,
public panel discussions and roundtables, talk show debates, congressional
hearings and bills, broadcast spats, presidential and congressional
investigations, ballot measures, magazine spreads, radio segments,
documentaries, and lawsuits — all about affirmative action.



As Thomas’s opposition to racial preferences grew, as is evident in his various
Supreme Court dissents, the intensity of that public discourse ebbed and flowed
— and sometimes completely boiled over. Now the Court, swaying closer toward
Thomas’s long-held views with the appointment of each new conservative justice,
may finally put the debate to bed this summer as it considers ending
race-conscious affirmative action in all higher education admissions, beginning
with the programs at Harvard University and the University of North Carolina
Chapel Hill.

In many ways, Thomas’s rejection of affirmative action, and the debates about
the programs that began just as he entered law school, are forerunners to
today’s backlash to diversity, equity, and inclusion initiatives, the divisions
over how to teach American history, and the right-wing attack on critical race
theory. The affirmative action debate has long tapped into resentments and
anxieties that beset the American electorate. Though the policy directly affects
a relatively small number of people at only a few higher education institutions
across the country, it draws disproportionate attention, personifying deeply
moral, political, institutional, economic, and cultural contradictions.

On the surface, the cultural skirmishes have focused on circular questions, like
whether affirmative action policies count as preferential treatment, the
difference between quotas and diversity goals, whether reverse discrimination
exists, and whether affirmative action is merely a stopgap measure or here to
stay. Below the surface, the enduring debate gets at something deeper, something
that seems to nag even at Thomas, an affirmative action beneficiary: In
America’s fractured society, what does fairness look like?



--------------------------------------------------------------------------------

Affirmative action was hobbled from the start.

Though political leaders were well-intentioned, they never clearly defined
affirmative action, leaving the door open to early resistance. When President
John F. Kennedy signed Executive Order 10925 in 1961, encouraging affirmative
action in employment, he acknowledged that deep-rooted structural oppression was
the cause of modern-day inequality. Two years later, shaken by the bombings and
riots in Birmingham, Alabama, Kennedy pleaded with university leadership to
further “expand opportunities for Negroes at all levels of the educational
system” as a way of defusing racial tensions. He also embraced the idea that
equal opportunity for education, bolstered by Brown v. Board of Education,
wasn’t enough if Black people couldn’t apply and be admitted. “Young people and
adults alike who have been disadvantaged need special programs in both general
and vocational education if they are to be ready for further formal education or
for employment,” he wrote. “The main task, of course, has to be carried out by
state and local educational systems and by public and private institutions.” But
he never offered specific solutions. His successor, Lyndon B. Johnson, carried
on the message, proclaiming in a 1965 speech that “we seek not just legal equity
but human ability, not just equality as a right and a theory but equality as a
fact and equality as a result.”

Justice Clarence Thomas, left, is pictured with other Supreme Court justices in
October 2022.
Jabin Botsford/The Washington Post via Getty Images

Affirmative action was meant to increase equality by countering historical
imbalances. Those who were at a disadvantage due to slavery, Jim Crow, and
racial discrimination would be brought up to the starting line to better compete
with those who were privileged. Following Kennedy’s original mandate, university
presidents by the late 1960s took steps to admit students and hire faculty of
color, also making room for white women in the process.

Almost immediately, culture clashes challenged these efforts, continuing over
the following decade. One white man who filed a lawsuit against the Virginia
Commonwealth University for alleged discrimination on the basis of sex told the
New York Times in 1977, “For a while in the 60’s, we were afraid to say what we
believed. … All conscientious whites wrestled with white guilt, and reverse
discrimination was the vehicle to get rid of that guilt. Now we can speak our
minds.”

The conflict was drawn. On one side of the aisle, supporters of affirmative
action decided it was up to schools to reimagine ways of measuring academic
merit and expand the pool of people who were considered for admission. On the
other, the opposition believed that the white students applying to college
weren’t rabid segregationists and that it was wrong to hold them accountable for
the sins of their forefathers. Affirmative action, these critics claimed,
amounted to a new form of racial discrimination, one that moved the country
further from a supposed colorblind ideal. The 1974 case DeFunis v. Odegaard led
a trial court to require that the University of Washington Law School admit a
white man after he was rejected despite having higher test scores than some
applicants of color — and put affirmative action on the legal radar. Four years
later, in Regents of the University of California v. Bakke, the Supreme Court
ordered the university’s medical school to admit Allan Bakke after he was
rejected twice, seemingly as a result of the school’s 16-seat quota system for
applicants of color that the Court deemed illegal, dealing affirmative action
its first blow. But the policy itself, albeit weakened, managed to hold.



“These cases launched and fired up the culture wars of the 1970s,” said Anthony
S. Chen, a sociologist at Northwestern University. “The Supreme Court acted like
a sieve, taking the rationales and policies that grew out of the reformist
energies in the 1960s and sorted them. They determined which were permissible
and which weren’t.”

Related

AFFIRMATIVE ACTION IS FACING ITS MOST DIFFICULT TEST

More than 40 years later, these clashes still haven’t been resolved — some
Americans aren’t pleased with where the Court has left affirmative action. The
two cases now before the justices are only the latest on a continuum of
challenges in which plaintiffs say the law discriminates against them. The
lawsuit against Harvard in Students for Fair Admissions v. Presidents and
Fellows of Harvard College claims that affirmative action harms Asian American
students because Harvard attempts to design or “balance” the racial makeup of
every class — designing a class that’s about half white, 20 percent Asian, 12 to
15 percent Hispanic, and a remainder of students who are Black, mixed race,
Native American, or other groups. The plaintiffs say achieving that calculus has
led the university to penalize Asian applicants in the “personal” category
despite high test scores, grades, and various extracurricular activities. The
UNC case is similar but argues that the practice violates both Title VI and the
guarantee of equal protection under the 14th Amendment.

Edward Blum, the white conservative activist behind both cases, is demanding a
college admissions process that evaluates students without factors such as race
or ethnicity, to get back to what he calls the “original vision of the
civil-rights movement.”



“Our nation cannot remedy past discrimination and racial preferences with new
discrimination and different racial preferences,” Blum has said in a statement.

--------------------------------------------------------------------------------

The clashes, activism, and extensive discussion around affirmative action have
helped keep it in motion. The fight, however, began to feel different. “With
litigation in the 1970s, there were no conservative public interest law firms
hunting around for plaintiffs to sue universities and colleges,” said Chen. By
the 1980s, affirmative action, in both employment and educational contexts, was
again a flashpoint in the culture wars, and by the 1990s, litigation against the
policy in higher education started up again, this time with the muscle of a
cadre of conservative attorneys who had come up under Presidents Reagan and
George H.W. Bush. The ’90s also brought the rise of the Center for Individual
Rights, an organization that prided itself on challenging affirmative action on
behalf of white plaintiffs.

A young protester in California in 1995 marches in favor of the University of
California’s affirmative action program. It was ultimately ended by voters.
David Butow/Corbis via Getty Images
Decades later, in 2022, a protester holds up a sign in support of affirmative
action in college admissions as arguments began on two cases being considered by
the Supreme Court.
Jabin Botsford/The Washington Post via Getty Images

Since its founding in 1989, much of the CIR’s efforts were aimed at affirmative
action to “get the government out of the business of granting preferential
treatment to individuals based on their race or sex.” In 1996, the CIR landed a
victory in the case Hopwood v. Texas, the first successful legal challenge of a
school’s affirmative action policy since Bakke. Because the Supreme Court
declined to review the case, the Fifth Circuit’s opinion that race couldn’t be
used as a factor in admissions at the University of Texas School of Law —
delivered by judges appointed by Presidents Reagan and George H.W. Bush — became
the law of the land in Louisiana, Mississippi, and Texas.

The case brought affirmative action back into the legal system and sparked fears
about the resegregation of higher education and the deprioritization of
diversity. Faculty and students protested. Conservatives rejoiced. One of the
three plaintiffs, Cheryl Hopwood, a white woman, told Rolling Stone in 1995 that
“affirmative action should be used to help disadvantaged people of whatever
background.” Regarded as the “perfect plaintiff,” Hopwood was admitted to
Princeton as an undergraduate but was too poor to attend, so she opted to work
part-time and attend community college. Her father died when she was young, and
she faced other difficult circumstances. When she applied to the University of
Texas’s law school, she was shut out. “You can find injustice anywhere. The fact
that I have one severely handicapped child and another one died is an injustice.
But nobody’s helping me,” she told the magazine.



The moment also drew attention to fissures among African Americans. In 1991,
Stephen Carter, a Black Yale Law School professor, published Reflections of an
Affirmative Action Baby, a memoir that attempted to capture the essence of the
affirmative action culture war and remake the debate.

Carter asserted that he would not have accomplished his career achievements if
not for receiving racial preference in professional school admissions. “I call
us the affirmative action babies. I know that this term is sometimes used
pejoratively, but it is my intention to invert that meaning, to embrace that
term, not reject it,” Carter wrote.

Related

WHAT THE CONSTITUTION ACTUALLY SAYS ABOUT RACE, EXPLAINED

Carter, however, did not counter Justice Thomas’s accounts of how tense it was
for Black beneficiaries of affirmative action on Yale’s campus in the 1970s.
After the Bakke decision, Carter wrote, “Everywhere we turned, someone seemed to
be pointing at us and saying, ‘You don’t belong here.’” He and his fellow
classmates looked around and saw an academic world that seemed to be doing its
best to get rid of them.



By the ’90s, after a decade in the classroom, Carter was worried that the young
students of color in his classes could become the last members of the
affirmative action generation. He noticed, too, that affirmative action was
moving away from its original meaning — “a provision of opportunities for
developing talent” — to “a tool for representing the ‘points of view’” of
excluded groups. With Bakke, the Court allowed affirmative action, but only to
achieve a student body with diverse perspectives that would benefit everyone.

Carter also tried to bridge the divide to prominent Black dissenters who thought
self-determination was all Black people needed to succeed, men whom he believed
had valid criticisms of the policy but were being publicly castigated as “race
traitors” or “conservatives” for their views. Those men included Black
conservative economist Thomas Sowell, who authored the 1975 book Affirmative
Action Reconsidered: Was It Necessary in Academia? — and who has been a major
influence on Thomas’s jurisprudence.

The author Stephen L. Carter, pictured in 2002, a decade after he made waves as
the author of Reflections of an Affirmative Action Baby.
Robert Gauthier/Los Angeles Times via Getty Images

“You move from Clarence Thomas, who felt undermined and who internalized
traditional arguments against affirmative action, to Steven Carter, who felt
that Black students should do everything they can to demonstrate to whites that
we work harder than anybody. Most of us worked hard because we were going to
work hard but also because we wanted to push back against stereotypes,” said
Luke Charles Harris, a professor of political science at Vassar who was a year
behind Thomas at Yale Law School and calls himself a typical first-generation
beneficiary of the program. “The public debate about affirmative action during
that time colored the perspectives of even some of the beneficiaries,” Harris
said. “But there’s never been a measure to integrate people of color into
American society that wasn’t made controversial. Anything that brings us into
these environments, there’s going to be pushback — even in situations where we
continue to be underrepresented.”

The debate kept going, in magazines, newspapers, and all over television. In
October 1995, the conservative Weekly Standard published an editorial expressing
dismay that the energy to kill affirmative action had stalled that year. “Expect
to hear that affirmative action is alive and well. But understand that what
you’ll be hearing is wrong. Affirmative action is still dying.” the magazine’s
editorial board wrote. Sure enough, the states of California and Washington
would eventually ban it by public referendum fanned by the culture wars and
conservative gadflies, and cases filed in that era would culminate in the
Supreme Court further gutting the policy.



Above all, many pointed out that the affirmative action debate had become
political theater, with leaders like President Bill Clinton using it to “foment
racial and gender rancor,” one Newsweek article argued.

Research from the time offers some insight into why Americans have been so
divided over the issue. Researchers Lee Sigelman and Susan Welch conducted
surveys throughout the ’80s about feelings toward racial preferences. In a 1984
survey, only 23 percent of Black respondents and 10 percent of white respondents
agreed with the idea that Black people and women should receive “preferential
treatment in getting jobs and places in college as opposed to mainly considering
ability determined by test scores.” In 1988, a survey question that was phrased
differently found different results. Asked whether they favored “affirmative
action programs in employment for Blacks, provided there are no rigid quotas,”
78 percent of Black respondents and 73 percent of white respondents said “yes.”
These mixed responses show that Americans haven’t always had the same
understanding of what affirmative action is.

In 1999, Jennifer Hochschild, a professor at Harvard, wrote in “Affirmative
Action as Culture War’’ that “some Americans see strong forms of affirmative
action as violating the values of individualism, equal opportunity, and
meritocracy that instantiate the American dream” while others see them as “the
only lever available to pry open the hypocritical claim of purported equality
but actual racial domination that characterizes ‘Amerikka.’” Back then,
Hochschild argued that affirmative action is “precious as a political weapon in
a broader cultural war about what America stands for.”



Today, she believes that in an increasingly diversified America, affirmative
action is no longer just a political tool. “It has kept resurfacing because it’s
a relatively safe space for people to make arguments that they genuinely
believe,” she said. “There’s a huge systemic structural underlay, and
affirmative action is a tiny little pinprick that we focus our attention on.”

--------------------------------------------------------------------------------

The morning of Halloween 2022, Justice Thomas cleared his throat and began
peppering Ryan Park, the lawyer for the University of North Carolina and the
state’s solicitor general, with questions about diversity during oral arguments.
Thomas, who has a reputation for staying silent during oral arguments, was
chatty that day.

“Mr. Park, I’ve heard the word ‘diversity’ quite a few times, and I don’t have a
clue what it means. It seems to mean everything for everyone,” Thomas said.
What, he wanted to know, did it mean on the University of North Carolina campus?
And what exactly were the educational benefits?



Park, a Korean American who was himself a Harvard Law School graduate and once a
law clerk for Ruth Bader Ginsburg, defended the school’s policy this way:
Diversity at UNC was achieved by a “set of criteria that extends to all
different backgrounds and perspectives and not solely limited to race.” Under
this definition, UNC has recruited and enrolled rural North Carolinians, for
example. In UNC’s last incoming class, four out of every 10 students who stepped
onto campus were from rural North Carolina and one out of every 12 students has
a military affiliation. This diversity had “real and meaningful educational
benefits,” Park argued, citing evidence from Students for Fair Admissions, the
very organization that had filed both the UNC and Harvard cases in an attempt to
gut affirmative action for good. Diversity, he concluded, leads to a “deeper and
richer learning environment” and “more creative thinking and exchange of ideas,”
and has “reduced bias between people of different backgrounds and not solely for
racial backgrounds.”

“But you still haven’t given me the educational benefits,” Thomas retorted. “I
didn’t go to racially diverse schools, but there were educational benefits. And
I’d like you to tell me expressly, when a parent sends a kid to college, that
they don’t necessarily send them there to have fun or feel good or anything like
that; they send them there to learn physics or chemistry or whatever they’re
studying. So tell me what the educational benefits are.”

Park pointed to “rigorous peer-reviewed” literature to argue that racially
diverse groups perform at a higher level because it “reduces group think and
people have longer and more sustained disagreement, and that leads to a more
efficient outcome.”



Thomas wasn’t buying it. “Well, I guess I don’t put much stock in that because
I’ve heard similar arguments in favor of segregation, too,” he said, before
abruptly moving on to another question.

Despite Thomas’s dismissiveness, the educational benefits are well-documented.
The seminal book The Shape of the River by the late William G. Bowen, a former
Princeton president, and former Harvard president Derek Bok, has examined the
impact of affirmative action during its first three decades on students who
probably benefited, and found that the students had better life outcomes — they
were more likely to graduate from college, earn professional degrees, and have
higher incomes — than peers who went to less competitive colleges and probably
didn’t benefit from affirmative action.

For the broader student body, particularly white students of higher
socioeconomic status, affirmative action has been proven to foster positive
racial attitudes toward marginalized groups, help them develop stronger
leadership skills, and make them likelier to engage civically after they
graduate.



The diversity rationale is the final leg upon which affirmative action stands.
“The Supreme Court shifted the conversation from restorative justice to
diversity, diversity predominantly in racial and ethnic terms,” said Hochschild.
“Diversity has become more useful to a country that’s become more
demographically complicated. Diversity does a lot of work now.”

At a time when dozens of states are introducing and passing legislation to ban
diversity, equity, and inclusion efforts in higher education, however, the
entire future of “diversity” is uncertain. The culture war over critical race
theory has become an extension of the affirmative action fight.

“The strategic plan from conservatives to galvanize white Americans against
affirmative action has reframed it as a policy that takes away opportunities for
white people as opposed to what it really is — a policy that’s designed to
rectify the centuries-long damage that is a function of systemic racism,” said
Harris, the Vassar professor. “Their attacks on affirmative action are meant to
make its beneficiaries — people like me — feel like we are not deserving of the
opportunities made available to us by affirmative action.”



“They want the burden of guilt to fall on people of color as opposed to racist
systems that have created systematic advantages for white Americans,” Harris
added. “And in this sense, the current attacks on antiracist ideas like critical
race theory and intersectionality are meant to keep the beneficiaries of
affirmative action, as well as most Americans, from understanding our nation’s
history and how racist systems impacted our past, our present, and our future.”

The fate of affirmative action is expected to be decided in the coming days, but
the arguments that have long underpinned it are far from resolved. What remains,
amid this period of backlash to progressive action, are tensions about how
America should address lingering inequality and whether policies that address
bias will have any place in its future.

--------------------------------------------------------------------------------

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