Among the most controversial issues of our day, perhaps with exception of another one of my favorites -- immigration reform -- is affirmative action. It appears that the Supreme Court of the United States may once and for all end such programs, and with it, society's ongoing debate concerning the propriety of such efforts. Indeed, just a week ago, the Court granted cert. in Fisher v. University of Texas Austin. In this case, the Court will examine UT's undergraduate admissions program in order to determine whether it comports with the United States Constitution's Equal Protection Clause.
If this issue were a matter left to public opinion, many believe there would be little question that affirmative action programs of virtually any kind would be held to be illegal. It is this fact that perhaps makes a defense of such programs challenging, to say the least. Many view such programs to be fostering the advancement of one race ahead of another. As such, affirmative action programs are associated with a repugnant policy of state-sponsored discrimination. Such views at first blush are quite appealing, and frankly understandable if the analysis begins and ends at that point.
However, when one examines the controversial issue, such programs' principles, history, and the purpose of said policies shed considerable light. Ultimately, it is principle and context that should carry the legal day on this issue, even if the Sisyphean task of convincing the public is not achieved.
Let us therefore examine the issue as the Court will in all likelihood address, namely, it will examine whether the affirmative action program in question, here the UT admissions plan, comports with the Constitution's notion of Equal Protection.
Though I believe my position should carry the day, even on the current Court, affirmative action is anything but popular. In fact, the anti-affirmative action stance is evidenced by the words of Justice Clarence Thomas, a jurist who many believe is a beneficiary of affirmative action. He has opined, "There is a moral constitutional equivalence between laws designed to subjugate a race and those that distribute benefits on the basis of race... In each instance, it is racial discrimination, plain and simple." In other words, the anti-affirmative action advocates argue that any efforts to use remedial measures to address is wrong -- this is known as the so-called philosophy of constitutional colorblindness, based largely on Equal Protection Clause and Justice John Marshall Harlan's famous dissent in Plessey v. Ferguson where he declaimed: "[o]ur constitution is colorblind, and neither knows nor tolerates classes among citizens." Such language appears to be a forceful reason to end affirmative action.
The appeal of using the above language, nonetheless, depends on the conflating of colorblindness from its intended goal in light of our history to a theoretical construct largely devoid of history and present day realities. In other words, the recent manifestation of colorblindness used to undermine affirmative action fails to recognize that the Equal Protection Clause itself was a remedial measure, much like the current versions of affirmative action used to promote diversity as well as aimed to address our country's long history of bias against racial and ethnic minorities.
As a long-time student of history and advocate of social justice, I have found it a bit peculiar the force of the recent morphing of the notions of the original intent of equal protection that is now used as a means to argue for equality came to light not when the historical atrocities that led to the enactment of the Equal Protection Clause occurred, or even when subsequent generations learned of them, but when the so-called newly disfavored viewed themselves as harmed. Such effective manipulation of doctrine belies the force of history, legal precedence, and even logic based upon even a cursory review of our history and that of the Equal Protection Clause.
Indeed, Justice Harlan, the originator of the now famous jargon associated with anti-affirmative action advocates -- the colorblind society and thus colorblind constitution -- when he wrote about colorblindness, he was seeking to end put an end to the stigmatizing and subordinating efforts of the majority against an attacked minority. Justice Harlan was using the above language of equality as a basis for race-conscious remedies to address historical mistreatment and abuse used to subjugate and subordinate minority. Thus, Harlan simply never meant to proscribe all governmental uses of race through his evocative call for colorblindness.
Thus, heightened review associated with cases examining racial subordination against an insular minority can be justified with respect to protected classifications only insofar as these operate as facets of social hierarchies, not because they involve the government's use of criteria largely beyond individual effort.
Thus current arguments, often using the label of reverse discrimination, simply miss the point of the Equal Protection Clause, do not recognize history, and thus take things out of context. As one of my colleagues and friends, Stanley Fish, years ago eloquently observed:
the [reverse racism] reasoning works only if the two practices are removed from their historical contexts and declared to be the same because they both take race into consideration. According to this bizarre logic, those who favor minority set-asides are morally equivalent to Ku Klux Klanners. It is just like saying (what no one would say) that killing in self-defense is morally the same as killing for money because in either case it is killing you're doing. When the law distinguishes between these two scenarios, it recognizes that the judgment one passes on an action will vary with the motives informing it.While affirmative action is a less than ideal solution, suffering at times from both under and over inclusiveness, it is one of the few remedies our society has put into place to address, not only centuries of subjugation, but also recent manifestations masked in pretexts like sovereignty and freedom to continue the "old boys" network. Interestingly, opponents, as one might expect, rarely if ever, provide any realistic solutions. In terms of affirmative action's continued need, one need only look to a similar context of the exclusion of women in position of power (i.e., the U.S. Senate) to demonstrate that our society has yet to act honestly as rational decision-makers. So when should affirmative action end, you might ask? That is an excellent question. Perhaps we should examine such queries when the pillars of power relinquish old tired ways of replicating themselves, and begin to resemble the society over which they rule?
In the end, the opponents of affirmative action take legal precedents out of historical and even textual context, they make broad-brush arguments that at first blush sound appealing, but ultimately fail to recognize the very goal of the Equal Protection Clause was to be a tool to remedy the history of discrimination that this country has, and sadly to some extent still endures. Let us not lose sight of context of the remedial nature of that cherished principle enacted to correct past wrongs and pervert its goals to allow us to have the freedom to discriminate because we can!
Editor's Note: This post has been updated since its original publication.