Defending affirmative action
In 1977, Harvard Law School’s Archibald Cox made a catastrophic decision in a remote office. Cox, the former Watergate prosecutor hired to defend universities’ affirmative action usage before the Supreme Cout, was looking for a winning argument. Diversity was his solution.
Liberal justices may support affirmative action to remedy historical wrongs. Conservative justices were skeptical. Cox noted that racial variety could educate students for pluralism to appeal to them.
He succeeded.
The court upheld affirmative action in Bakke by one vote, citing diversity as the lone rationale. My colleague Emily Bazelon wrote a story in The Times Magazine about how Bakke saved affirmative action but also set the stage for the Supreme Court to reject it later this year.
Today, she and I explore how we got here and what happens next.
Bakke’s trap
David: Emily, your story was incredibly informative. Is this right? Affirmative action can’t win a ballot initiative in California because diversity doesn’t convince many Americans. Fairness matters more. They think diversity shouldn’t exclude a more deserving applicant.
Emily: You’re probably right about the most persuasive argument. It makes defending affirmative action in court difficult.
Universities had to struggle with one hand tied behind their backs when the Supreme Court removed the fairness argument. The public won’t accept universities’ diverse student bodies until they know why.
One caveat. Diversity improves learning and productivity. Since the 1970s, many people across ideologies have seen racial diversity as a social virtue, even if it isn’t achieved. The means—allowing race-based preferences—remains contentious.
David: I’m amazed affirmative action supporters, including Cox, didn’t raise a fairness argument. He did not deny that Black kids were still discriminated against. He discussed historical discrimination. Justice Thurgood Marshall frankly stated, “They owe us.”
Another explanation of the program is that Black kids are disadvantaged by a lack of family money (induced by racist government policies) and continued biases. According to this evidence, a Black student who scores 50 points lower on the SAT than a similar white student is more qualified. Running in the wind. Fairness. Could Cox have argued harder?
Emily: Yes. In the months the justices deliberated over Bakke, Marshall, the quintessential civil rights crusader, wrote a memo about “whether Negroes have ‘arrived'”—if they no longer needed affirmative action. Marshall cited the court’s three Black law clerks as evidence that Black people had “very certainly” not arrived. Like you, he emphasized racial and economic inequities.
In fairness to Cox, structural racism claims are more common than in the 1970s. The conservative judges stated that the fairness argument applied only if the defendant discriminated, not to systemic issues.
David: Good point. Affirmative action supporters today committed a tactical error. The narrow Bakke ruling shaped their entire narrative. they didn’t make a strong political case for affirmative action, which can sway the Supreme Court. Finally, let’s look ahead.
Class-based affirmative action might follow a court ruling against race-based schemes. What would that change?
Emily: It may have political repercussions. Polls reveal stronger public support for increasing students’ admission prospects based on their economic status than race or ethnicity.
Class-based criteria like family wealth or neighborhood poverty could improve social mobility at highly selective colleges. In the Ivy League, children from the top 1% of the economic distribution are 77 times more likely to attend than those from the bottom 20%.
Tradeoffs exist. If the Supreme Court kills affirmative action as we know it, many selective schools will lose Black students, according to most experts. Low-income pupils of all races may grow but Black students may drop. The Supreme Court’s ruling affects this. June brings the verdict.
