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What the Harvard Decision Gets Right about Affirmative Action

Yuvraj Joshi, Doctoral Candidate, Yale Law School

A federal judge has upheld Harvard College’s admissions program against a challenge from Edward Blum. Her opinion reinforces what I interpret to be the true purpose of affirmative action in the U.S., which is the pursuit of racial transition.

Blum is the president of Students for Fair Admission (SFFA), an organization with the mission of eliminating the use of race and ethnicity in college admissions. He is responsible for orchestrating multiple anti-affirmative action lawsuits; he brought Abigail Fisher’s unsuccessful case against the University of Texas Austin before the Supreme Court. In his latest attempt to end affirmative action, Blum alleges that Harvard’s admissions practices have “disproportionately negative effect on Asian Americans” compared to white applicants.

U.S. District Judge Allison D. Burroughs of the U.S. District Court for Massachusetts concluded that Harvard does not discriminate against Asian Americans in its admissions process. Judge Burroughs’ opinion follows longstanding U.S. Supreme Court precedent that allows universities to consider race as one of several factors in the pursuit of a diverse student body. A conservative Supreme Court bolstered by a pair of Trump nominees may be willing to depart from that precedent. But at least for now, Judge Burroughs’ opinion is right on the law.

What the opinion also gets right is the aim of affirmative action. As I argue in Affirmative Action as Transitional Justice and other forthcoming work, the purpose of affirmative action in higher education is not merely to diversify the student body; instead, its purpose is to facilitate and negotiate the nation’s passage from its racial past to its racial future.

As I show, the U.S. is not unique in employing affirmative action for transitional ends. Affirmative action in both South Africa and the U.S. emerged as an attempt to undo the legacies of racial discrimination and move away from racial wrongdoing. South African affirmative action has been profoundly shaped by the legacy of apartheid, and American affirmative action by that of slavery and segregation.

But while South Africans widely recognize affirmative action as a post-apartheid transitional measure, the American affirmative action debate has dwelled on the value of “diversity” and permissible ways to achieve it. The American terminological shift from “justice” to “diversity” has masked the ways we might think about affirmative action as transitional justice. To many Americans, today’s affirmative action policies appear to have little to do with transitioning from an oppressive past.

This perspective overlooks how U.S. affirmative action remains a distinctly transitional practice. Courts have allowed the use of race in admissions with the understanding that race still matters in American society, and so an element of race-consciousness is needed to move toward a world in which race no longer matters. This imperative of transition underpins both the recent Harvard decision and several decades of the Supreme Court’s affirmative action jurisprudence.

“The rich diversity at Harvard and other colleges and universities and the benefits that flow from that diversity will foster the tolerance, acceptance and understanding,” Judge Burroughs wrote in SFFA v. Harvard. “[T]hat will ultimately make race conscious admissions obsolete.”

This reflection — that affirmative action will help the U.S. transition to a society in which affirmative action is no longer needed — has deep roots in earlier Supreme Court opinions. In a 1978 case that is the basis of the current legal regime of affirmative action, Justice Blackmun wrote that “beyond any period of what some would claim is only transitional inequality, the United States must and will reach a stage of maturity where action along this line is no longer necessary.”

Justice Blackmun refused to set a timer for when transition will be done. “I would hope that we could reach this stage within a decade at the most,” he said. “But the story of Brown v. Board of Education, decided almost a quarter of a century ago, suggests that that hope is a slim one.” Instead of specifying a duration of time, he linked transition to the realization of a society in which “discrimination of the type we address today will be an ugly feature of history that is instructive but that is behind us.” 

Twenty-five years later, in 2003, the Supreme Court allowed the use of race in admissions because a transition from the nation’s past was incomplete. Justice O’Connor pointed to “the unique experience of being a racial minority in a society, like our own, in which race unfortunately still matters.” As she explained: “By virtue of our Nation’s struggle with racial inequality, [minority] students are both likely to have experiences of particular importance to the Law School’s mission, and less likely to be admitted in meaningful numbers on criteria that ignore those experiences.”

It is, of course, possible to share the Supreme Court’s concern with racial transition and yet to disagree with the way the court imagines that transition unfolding. Justice O’Connor famously predicted in 2003 that “25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today,” a timeline that she came to doubt after retiring. In contrast, Justice Ginsburg described the timeline of twenty-five years as a “hope, but not firm[] forecast,” adding that “[t]he stain of generations of racial oppression is still visible in our society, and the determination to hasten its removal remains vital.”

The current Supreme Court may take a different view of transition. Debates over how long affirmative action should continue and whether or not it should rely on race are ultimately debates about whether affirmative action facilitates or impedes transition. For some conservatives on the Supreme Court, reliance on race in admissions suggests a continuation of the nation’s racial past.

When the issue of affirmative action returns to the Supreme Court, supporters and critics will not only be litigating specific admissions policies. They will also be litigating whether America’s racial past is truly behind it — and whether affirmative action can help complete the transition.

Suggested citation: Yuvraj Joshi, What the Harvard Decision Gets Right about Affirmative Action, Int’l J. Const. L. Blog, Oct. 11, 2019, at: http://www.iconnectblog.com/2019/10/what-the-harvard-decision-gets-right-about-affirmative-action/

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Published on October 11, 2019
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