Race-based affirmative action in higher education is America’s zombie policy for justice. About once every decade since the 1970s, Americans think it is dead, killed by a court case, only to see it revived in a still-recognizable, but mutated form. In the latest case, a federal judge will decide if Harvard University’s admissions policy, which considers race to advance “diversity,” discriminates against Asian Americans. The case reveals how race-based affirmative action in college admissions, which promotes diversity and expands membership in the Black middle class, is the racial justice we have. Is this case the racial justice we need?

Defenders of race-based affirmative action have not shied away from criticizing it. Almost 30 years ago, legal scholar Stephen L. Carter decried that racial preferences in higher education admissions had become a way to promote “racial justice on the cheap.” In a New York Times opinion, Carter found that educational affirmative action policies helped middle-and-upper class Black applicants, but did not uplift poor Black people. Admissions practices did not redress histories of racism but instead exacerbated income gaps between all Black Americans.

Carter also reminded readers that the affirmative action achievements which created parity between Black and white total incomes came as conservatives gutted the Great Society, and spit on and co-opted the Civil Rights Movement. President Ronald W. Reagan cut the social safety net out from under impoverished citizens and characterized single Black mothers as “welfare queens” who pilfered the public coffers. The same president who made Martin Luther King Jr.’s birthday a national holiday kicked off his 1980 national campaign with a speech supporting states’ rights in the same Mississippi county where white terrorists had snuffed out the lives of three Civil Rights organizers in 1964.

As political and economic conservatism, and post-Civil Rights Era racism, reached a high point, the US Supreme Court affirmed racial preferences in college admissions practices. The 1978 Regents of the University of California vs. Bakke case struck down admissions programs that created racial quotas, but protected policies that promoted diversity. “The diversity that furthers a compelling state interest,” Justice Lewis F. Powell wrote in the Bakke decision’s majority opinion, “encompasses a far broader array of qualifications and characteristics of which racial or ethnic origin is but a single, though important, element.”

Affirmative action survived major challenges throughout the decades. The case against the University of Michigan undergraduate school found that the school’s practices violated the Constitution because an applicant’s race was granted a set number of points in the admission scoring system. That same year, the Justices affirmed the university in a case against its law school, which employed a flexible system where an applicant’s race was one of many factors that influenced acceptance decisions. Yet anti-affirmative action activists persisted. Borrowing from a successful tactic used in California in 1996, Michigan voters outlawed racial preferences through a state-wide ballot referendum in 2006. Columbia University President Lee Bollinger (who led the University of Michigan during the late-1990s), gave a classic defense of racial affirmative action.

“The experience of arriving on a campus to live and study with classmates from a diverse range of backgrounds is essential to students' training for this new world, nurturing in them an instinct to reach out instead of clinging to the comforts of what seems natural or familiar,” Bollinger wrote in 2007. “Affirmative action programs help achieve that larger goal,” he wrote.

Stephen Carter agreed but maintained skepticism in Reflections Of An Affirmative Action Baby: “if the nation adopts the Civil Rights agenda involving racial preferences” but “rejects the Civil Rights agenda requiring the expenditures of money to help the worst off among us, the true inheritors of the decades of oppression,” such practices stem from “a society that prefers its racial justice on the cheap.” Years later, Harvard Law School professor Randall Kennedy defended race-based affirmative action in For Discrimination: Race, Affirmative Action, and the Law. Kennedy made the case that ending affirmative action prematurely “would be a calamity.” “Throughout American history,” Kennedy wrote, “there has surfaced repeatedly a regrettable tendency to underestimate the power of racism’s influence and to bring to an end too soon promising interventions.”

The latest case against Harvard comes at a time when questions about the value and future of American higher education abound.

Public higher education systems are dying a slow, painful death. Access to federal Pell grants shrunk under the Trump Administration’s 2017 budget to the tune of $3.9 billion in cuts. The price tags of private colleges, and student debt levels, have ballooned to staggering levels. In 2018, Forbes magazine noted student loan debt had become the second highest consumer debt category in the United States. For-profit colleges prey upon people with promises of high-paying careers, but the Trump administration ended regulation of such practices.

America cannot promote racial justice without paying attention to race.

Affirmative action’s social and educational benefits deserve defense, but if affirmative action in college admissions remains a primary form of educational racial justice, then the increasing injustices that rage through American higher education and hurt the most vulnerable citizens will endure.

Thirty years after Bakke, with affirmative action limping along, Carter continued to sound an alarm. “Unless racial justice once again becomes the centerpiece of American politics,” he wrote, “with both parties willing to rethink their positions, those who are suffering most from our legacy of racial oppression will continue to fall further behind.”

Affirmative action that promotes diversity is the imperfect racial justice we have. Without it, Black students’ hopes for justice may need to come in the form of miracles and magician acts. They can pray for their school to invite Robert F. Smith, or another billionaire, as a commencement speaker. They can hold their breath to see if that individual pulls a six-figure rabbit out of an honorary degree hat.

About the Author

Brian Purnell is the Geoffrey Canada associate professor of Africana studies and history, and director of the Africana Studies Program at Bowdoin College.