Still Separate & Unequal

Affirmative action, the policy of giving preferences for jobs, university admissions, or government contracts to members of designated racial and ethnic groups, has never been popular, and it could soon be abolished. In 2003, the Supreme Court struck down an undergraduate admissions policy at the University of Michigan that provided extra points for minority applicants. At the same time, the Court approved by a single vote the more subjective practice of taking race into account as one factor among several in admissions to the university’s law school. The change of one vote (by the recently confirmed Chief Justice John Roberts?) would have meant the end of overt affirmative action in higher education. The trend against affirmative action in the states is even more pronounced. In California and Washington constitutional referendums have banned the government from using affirmative action in any of its activities. Other states have ended or severely limited affirmative action by executive authority.

More remarkable than the current opposition to affirmative action is the fact that it ever came into existence in the first place. On its face, the policy seems to violate one of the most basic American values—the idea that individual merit as manifested in a fair and open competition should be rewarded. A practice that seems to go against the individualistic and meritocratic American ethos is clearly vulnerable to an attack that is likely to be persuasive to many of those who do not stand to benefit from it. Moreover, affirmative action seems contrary to the emphasis on colorblindness that was characteristic of the civil rights movement of the Fifties and early Sixties, and was expressed in the language of its greatest achievement—the Civil Rights Act of 1964.

Two very different arguments have been advanced for affirmative action. One claims that it is just compensation for historical injustices and disadvantages. In the case of claims by African- Americans the emphasis is usually on the wounds inflicted by centuries of slavery, segregation, and discrimination. President Lyndon Johnson made one of the most elegant and influential statements of this position in his Howard University speech of 1965, which is quoted by Ira Katznelson in When Affirmative Action Was White:

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…. It is not enough just to open the gates of opportunity. All our citizens must have the ability to walk through those gates…. 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.

The other argument, which is reflected in recent Supreme Court decisions and is currently much heard, is based on the assumption that racial and ethnic diversity among “elites”—relatively well-off people who have some degree …

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