The 50-year fight to dismantle affirmative action

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In a historic commencement address at Howard University on June 4, 1965, President Lyndon Johnson laid out the intellectual and moral basis for affirmative action. Speaking less than a year after the passage of the Civil Rights Act and two months before the passage of the Voting Rights Act, he invoked a metaphor that remains resonant 50 years later: "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."

Heeding Johnson's call and responding to the demands of the civil rights movement for racial justice, many selective colleges and universities altered their admissions policies with the express intent of increasing the number of Black students. The need for change was undeniable: As late as 1960, just 15 students (0.5%) of the combined entering classes at Harvard, Yale and Princeton were Black. At the UCLA School of Medicine, which, like other University of California institutions, followed an official policy of colorblindness, not a single Black person was among the 764 students who received MDs from 1955 to 1968. Among people in the legal profession as a whole, including graduates of the five historically Black law schools, fewer than 1% were Black in 1968. Affirmative action offered a way to take into account far-reaching differences in personal circumstances and to begin to right a historic wrong.

After a brief honeymoon of public support, affirmative action was met with a powerful backlash, and the policy has been under attack ever since. Decades of lawsuits and legislation have chipped away at the use of racial preferences. And now, in a 6-to-3 decision Thursday, the Supreme Court has consigned them to the grave.

The intensity and duration of the attack is sad confirmation that many Americans remain unwilling to reckon with the barbarity of our racial history. Every period of progress for Black people has been met with a racial backlash. In response to Reconstruction, Southern white people developed an entirely new and mythical history of slavery, the Civil War and ultimately Reconstruction. More than a century later, this insistence on denying history lives on. Witness the laws in a growing number of conservative states that prohibit teaching the truth about racial oppression, with dismissal and possibly even jail for teachers who dare to defy them.

Affirmative action was at best a modest form of recompense for centuries of exploitation and exclusion — far short of the reparations favored by more than three in four Black Americans. But it produced important gains: greater Black representation in elite colleges and professional schools, a growing African American middle class and more minorities in positions of leadership in key institutions. Affirmative action's elimination is a monumental setback for racial justice. It will likely lead to a substantial decline in racial and ethnic diversity at our leading colleges and universities and over time will narrow the pipeline that has led to a more diverse — and representative — leadership class.

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Almost immediately, it was the reparative element of affirmative action that provoked the most passionate opposition. As early as 1970, a leading policy journal, the Public Interest, ran an article denouncing what critics said were quotas at Yale Law School. The following year, the New York Times published an opinion essay by the eminent philosopher Sidney Hook claiming that the federal government was pressuring institutions of higher education to discriminate against qualified applicants. By 1972, the charge of reverse bias was published in the Wall Street Journal and elsewhere and then fully elaborated in Nathan Glazer's influential book, "Affirmative Discrimination."

Alongside the escalating ideological assault emerged a serious legal challenge. In 1971, Marco DeFunis Jr., a white Phi Beta Kappa graduate of the University of Washington, filed suit, arguing that he had been passed over by the university's law school in favor of less qualified minority applicants. In September 1971, a state court agreed, ruling that he be admitted in time for entry in the fall of that year. The university complied with the order but appealed the ruling, requesting that the case go directly to the Washington State Supreme Court.

In March 1973 the court ruled in favor of the University of Washington in a 6-to-2 opinion, declaring that the university had a compelling state interest in producing a racially balanced student body. But two justices issued ringing dissents, with one of them declaring "racial bigotry, prejudice and intolerance will never be ended by exalting the political rights of one group or class over those of another." DeFunis, then well into his second year at law school, had little inclination to appeal, but his attorney pointed out that the law school was now legally free to dismiss him if so inclined. The United States Supreme Court heard the case in February 1974, with DeFunis by then in his final semester. The court, well aware that affirmative action was a hot-button issue, declared the case moot in April 1974 in a 5-to-4 vote.

Watching the DeFunis case with intense interest was Allan Bakke, a white man in California who had been twice rejected by the University of California, Davis, medical school. Two months later, he filed suit against the University of California, claiming that it had turned him down in favor of less qualified minority applicants. In September 1976, the California Supreme Court sided with Bakke, 6 to 1, declaring that "the principle that the Constitution sanctions racial discrimination against a race — any race — is a dangerous concept fraught with potential for misuse."

The University of California appealed the ruling, and by the time it reached the Supreme Court of the United States for oral argument in October 1977, it was clear that public opinion was decisively against preferential treatment by race in college admissions. Asked in a 1977 Gallup poll whether "to make up for past discrimination … members of minority groups should be given preferential treatment in getting jobs and places in college" or whether "ability, as determined by test scores, should be the main consideration," 84% of white respondents and 55% of Black respondents favored selection by ability.

At the time, the medical school reserved 16 spots a year for minority students. Four justices of the court upheld that quota, arguing that "we cannot … let colorblindness become myopia which masks the reality that many 'created equal' have been treated within our lifetimes as inferior both by the law and by their fellow citizens." It concluded that government, which in this case meant a publicly funded university, "may take race into account when it acts not to demean or insult any racial group but to remedy disadvantages cast on minorities by past racial prejudice."

The four more conservative justices disagreed vigorously, citing Title VI of the Civil Rights Act to argue that "race cannot be the basis of excluding anyone from participation in a federally funded program" and that the Davis program violated the law because it "excluded Bakke from participation in its program of medical education because of his race."

The deciding vote was thus in the hands of Justice Lewis Powell, a gentlemanly Virginia millionaire and Nixon appointee. His deeply conservative views were revealed in a confidential memo he wrote for the U.S. Chamber of Commerce just two months before his nomination to the Supreme Court. But on the issue of affirmative action, he, like many members of the elite, was a moderate, and he sought a middle ground.

Aligning himself with his conservative colleagues on the issue of quotas, he declared the Davis program's use of them impermissible; moreover, he categorically rejected the contention of his more liberal colleagues that preferences were justified by America's long history of slavery and segregation, dismissing the argument of societal discrimination as "an amorphous concept of injury that may be ageless in its reach into the past." (Justice Thurgood Marshall, who had argued the plaintiff's case in Brown v. Board of Education and was the court's sole African American member, noted pointedly, "It is more than a little ironic that after several hundred years of class-based discrimination against Negroes, the court is unwilling to hold that a class-based remedy for that discrimination is permissible.")

But Powell did not rule out racial considerations altogether. He identified what was to become a more palatable rationale for taking race into account for admission: to obtain "the educational benefits that flow from an ethnically diverse student body." A recipient of a master of laws degree from Harvard Law School, Powell pointed to the "Harvard College program" as an "illuminating example" of one that avoided racial quotas while considering race as one plus factor among many in determining whom to admit. "Minority representation in the undergraduate body," he wrote (citing Harvard's description of its admissions process), was a "compelling state interest," for "diversity adds an essential ingredient to the educational process."

With affirmative action under sustained intellectual assault for nearly a decade and opposed by a majority of the American people, the Supreme Court declared that the foundational reason for considering race in college admissions — as a remedy for a centuries-long history of racial oppression — had no legal standing. Affirmative action was hanging by a thread, dependent on the slenderest majority of the Supreme Court. Other legal challenges were clearly just a matter of time.

Yet the next major blow to affirmative action was to come not from the courts but from voters. In the wake of an intensifying racial backlash exemplified by the passage in 1994 of California's fiercely anti-immigrant Proposition 187, Gov. Pete Wilson, then harboring presidential ambitions, threw his weight behind Proposition 209, a 1996 anti-affirmative-action ballot measure cleverly called the California Civil Rights Initiative. Under the banner of colorblindness, it called for prohibiting state governmental institutions from considering race in public education, public employment and contracting. After a bitterly contested campaign, the measure passed, 55 to 45%, with a majority of Black, Hispanic, Asian and Jewish voters opposed.

The proposition's success was followed by electoral defeats for affirmative action in Washington, Michigan, Nebraska, Arizona and Oklahoma; legislative bans in New Hampshire and Idaho; and a ban by executive order in Florida. In 2020, Proposition 16, a measure to restore affirmative action in California, was defeated, 57 to 43% — a larger margin than in the vote against affirmative action 24 years earlier.

These outcomes empowered the anti-affirmative-action movement, and national surveys left little doubt that they reflected the views of a majority of Americans. In four Gallup surveys from 2003 to 2016, 67 to 70% of Americans favored admitting applicants into college "solely on merit," while 23 to 28% supported considering "an applicant's racial and ethnic background to help promote diversity on college campuses." More recent studies by the Pew Research Center point in the same direction; in 2022, while 93 and 85% of Americans viewed high school grades and standardized test scores as legitimate considerations in college admissions, only 26% supported taking race and ethnicity into account.

But the Supreme Court, at least in principle, is supposed to follow the law and the Constitution, not public opinion. In major decisions on affirmative action in 2003 (Grutter v. Bollinger) and 2016 (Fisher v. University of Texas), the court again upheld — in both cases by a single vote — the right of universities to consider race as a factor in college admissions. Justice Sandra Day O'Connor was the swing vote in 2003, and in addition to citing the diversity argument endorsed by Powell, she offered a new justification for affirmative action: "In order to cultivate a set of leaders with legitimacy in the eyes of the citizenry, it is necessary that the path to leadership be visibly open to talented and qualified individuals of every race and ethnicity." Clearly influenced by amicus briefs filed by corporate and military leaders, her rationale, which highlighted a concern with maintaining the legitimacy of the social order, revealed the gap between elite and popular perspectives on the issue. Yet having saved affirmative action, she remained ambivalent about it, expressing her belief that "25 years from now, the use of racial preferences will no longer be necessary."

The Supreme Court didn't wait that long. In its new ruling, it said that racial preferences violate the equal protection clause of the 14th Amendment. Chief Justice John Roberts's decision did clarify that "nothing in this opinion should be construed as prohibiting universities from considering an applicant's discussion of how race affected his or her life, be it through discrimination, inspiration or otherwise."

While race-conscious affirmative action is no longer permissible, it is worth noting that the Supreme Court ruling leaves intact many other forms of affirmative action — preferences for the children of alumni, preferences for the children of donors and preferences for student athletes, including for such boutique sports as sailing, fencing and squash. The consequences of this change are not entirely predictable, but based on what happened at the University of Michigan and the University of California, Berkeley, after they were barred from pursuing race-conscious admission policies, a sharp decline in Black and perhaps Hispanic enrollments at highly selective colleges and professional schools seems almost certain. To offset the loss, many colleges are likely to switch to a policy of affirmative action based on economic class. Such a policy would attenuate, although by no means eliminate, the racial impact of the Supreme Court's ruling.

Affirmative action based on economic class is likely to enjoy broader public support than race-conscious affirmative action; according to a recent Washington Post poll, 62% of Americans believe that students from low-income families have an unfair disadvantage in getting into a good college. But affirmative action on its own, whether based on race or economic class, is far too limited a tool to realize the dream of the great civil rights movement of the 1960s for full racial equality. As we confront a world without race-conscious affirmative action, we would do well to remember the Rev. Martin Luther King Jr.'s admonition that to produce real equality, "the movement must address itself to the question of restructuring the whole of American society."

Jerome Karabel is a professor emeritus of sociology at the University of California, Berkeley, and the author of "The Chosen: The Hidden History of Admission and Exclusion at Harvard, Yale, and Princeton," among other works. He is writing a book on the United States as an outlier nation. This article originally appeared in the New York Times.