Analyzing Affirmative Action
The Civil Rights Act prohibits discrimination based on race in any program receiving federal financial assistance. The Equal Protection Clause of the Fourteenth Amendment decrees that “no State shall […] deny to any person within its jurisdiction the equal protection of the laws.” Taken together, these laws offer a forceful check against differential treatment based on race. Paradoxically, however, race-conscious affirmative action policies necessarily treat members of different races differently. How, then, is modern affirmative action constitutional?
Much like there are exceptions to free speech protections guaranteed by the First Amendment, it turns out that not all racial classifications are banned under the Constitution. Racial classifications fall under the umbrella of what the Supreme Court calls “suspect classifications.” For any law or program involving a suspect classification to be constitutionally valid, it must survive “strict scrutiny,” the most stringent standard of judicial review. This involves passing three tests: The program must serve a “compelling governmental interest”; it must be “narrowly tailored” to achieve only that interest; and it must be the “least restrictive means” of realizing that interest.
In the first piece of this column, I discussed the origins and development of two diverging notions of affirmative action: “soft” affirmative action, which avoids explicit distinctions along racial lines, and “hard” affirmative action, which calls for preferencing members of disadvantaged groups in order to increase representation and correct for past discrimination.
There is little agreement on what a “soft” or “hard” affirmative action policy constitutes. Over the past couple of decades, universities and states have experimented with various affirmative action programs. Several of these programs have faced legal challenges that have made their way to the Supreme Court, beginning most notably with Regents of the Univ. of Cal. v. Bakke. In Bakke, the UC Davis Medical School used a separate admissions process for applicants from disadvantaged groups, and reserved a fixed number of seats for such applications. In Fisher v. Texas, 75 percent of the University of Texas’s class was filled according to the Top Ten Percent Plan, which granted automatic admission to students in the top ten percent of their high schools, leaving only 25 percent of the class to be admitted using a process that factored in race. Meanwhile, Harvard — currently being sued for its admissions policies — admits its entire class through a single race-conscious program, but considers race as only one of several factors. Each of these programs, though very different from each other, are “hard” affirmative action programs in the sense that they give preference to race as a factor: Today, these are known as “race-conscious” admissions programs.
As Harvard continues to stand up for its race-conscious admissions policies against a lawsuit widely expected to reach the Supreme Court, it is instructive to examine how affirmative action became one of the most contentious social and political issues in higher education. This column is dedicated to examining the shifting narratives surrounding affirmative action: the changing arguments in favor of it, the arguments against it, and where it fits into the American cultural and racial landscape today.
The passage of the Civil Rights Act of 1964 and the Voting Rights Act of 1965 represented a watershed moment in the long and arduous struggle for racial equality in the United States. The Voting Rights Act secured Black Americans the right to vote, enforcing the Fourteenth and Fifteenth Amendments. The Civil Rights Act — specifically Title VII, which prohibited employment discrimination based on race, religion, sex, and national religion — secured for them the right to take up jobs without fear of discrimination. Having achieved, at least on paper, a notion of racial equality, the focus of the civil rights movement turned to securing economic equality for African Americans: equality not just of status, but of opportunity. At the core of that continuing struggle stands affirmative action.