Affirmative Action

• Pages: 413-450
• Author: Khiara M. Bridges

413

Chapter 18

AFFIRMATIVE ACTION

It understates the case to describe race-based affirmative action

as a controversial issue in the U.S. today. Some passionately

champion race-conscious admissions and hiring programs, believing

them to be an essential part of the fight to undo the effects of the

country’s lamentable racial past. Folks in this camp conceptualize

such efforts as necessary elements of a multifaceted program to bring

historically disadvantaged racial groups into the body politic as

equals. Others passionately oppose race-based affirmative action,

believing it to be an immoral, divisive technique that is rife with

irony: In order to cure the problem of racial discrimination against

black, Latine, and indigenous people, institutions propose to practice

racial discrimination against white and Asian people.

On the whole, progressive race scholars tend to defend race-

based affirmative action programs and policies, understanding them

as the least that public and private actors could do to help produce a

racially just society. Unsurprisingly, however, progressive thinkers

are not uncritical of race-based affirmative action: They remain

aware of the possibility that it might help to legitimate the

exclusionary pathways that the powerful and privileged in society

have used to keep power and privilege inaccessible to all but the

precious few.

I. Historical Origins of Race-Based Affirmative

Action

The Civil Rights Movement of the 1950s and 1960s is rightfully

understood as the birthplace of race-based affirmative action. While

those who participated in this social movement recognized that

intentional racial discrimination was a key mechanism in the

relegation of black people to the bottom of social, cultural, political,

and economic hierarchies, they appreciated that other processes

functioned to produce the same results. Indeed, Dr. Martin Luther

King, Jr. argued that even if intentional racial discrimination was

never again practiced in the country, “Black poverty, the ‘historic and

institutionalized consequences of color,’ would continue.”

1

Hence,

thinkers of the day understood that formal legal equality for black

people would not result in substantive equality for this historically

disadvantaged group.

1

Tomiko Brown-Nagin, Rethinking Proxies for Disadvantage in Higher

Education: A First Generation Students’ Project, 2014 U. CHI. LEGAL F. 433, 438 (2014).

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AFFIRMATIVE ACTION

Ch. 18

Accordingly, activists certainly celebrated the passage of the

Civil Rights Act of 1964 (“CRA”), which outlawed race-based

discrimination (as well as discrimination on the basis of color,

religion, sex, and national origin) in significant areas of American

life. However, they conceptualized the CRA as a necessary, but not

sufficient, step in the fight for racial justice. They believed that the

nation also needed to take steps to dismantle the race-neutral

processes that destroyed black people’s ability to enter, and succeed

in, the labor market. They were convinced that exclusion from job

opportunities were “as much a function of the way in which an

employer traditionally did business as of an intent to discriminate.

The networks ordinarily tapped, the tests ordinarily used might

generate exclusion as effectively as intentional discrimination.

Nondiscrimination was not enough. Nondiscrimination by an

employer or by a college might still leave many blacks and minorities

marginalized, outside the mainstream, and embittered candidates

collectively for riots, or individually, for criminal acts.”

2

The Equal Opportunity Act (“EOA”), which was the legislative

piece of President Lyndon B. Johnson’s “War on Poverty,”

complemented the CRA inasmuch as the EOA implemented job

training and social welfare programs that were designed to help the

poor acquire skills that could help them participate in the labor

market and, ideally, emerge from poverty.

3

But, still, many felt that

the programs that the EOA implemented were incapable of

accomplishing what civil rights activists demanded: full-throated

racial justice. They proposed that race-based affirmative action

programs were the means for fulfilling that demand. It was these

programs to which President Johnson alluded in a speech on Howard

University’s campus in June 1965, in which he argued that it was

time for the country to enter the “next and the more profound stage

in the battle for civil rights.”

4

Critical thinkers emphasize affirmative action’s origins in the

Civil Rights Movement because they reject depictions of these

programs as handouts from kind-hearted, benevolent white people to

agency-deprived, powerless black people. For example, in his

vigorous dissent from the Court’s approval of the University of

Michigan Law School’s race-based affirmative action program in

Grutter v. Bollinger, Justice Clarence Thomas describes the program

2

John R. Howard, Affirmative Action in Historical Perspective, in AFFIRMATIVE

ACTION’S TESTAMENT OF HOPE 19, 30 (Mildred Garcia ed., 1997).

3

Some of the programs that the EOA made possible were Head Start for

preschool children, Upward Bound for high school students entering college, and work-

study programs for those already enrolled in college.

4

Lyndon B. Johnson, Commencement Address at Howard University (June 4,

1965).

Sec. II

THE UNCONSTITUTIONALITY OF RACE-

BASED AFFIRMATIVE ACTION?

415

at issue as one that has been dreamed up by a “cognoscenti”; he

claims that it amounts to nothing more than a “social experiment[ ]

on other people’s children.”

5

Critical scholars dispute this

characterization of affirmative action. Inasmuch as civil rights

activists involved in one of the country’s most powerful social

movements demanded affirmative action, progressive theorists argue

that these programs ought not to be understood as something that

generous and altruistic white people have gifted to the historically

disadvantaged. Rather, they say, it is something that the historically

disadvantaged exacted from the powerful in this country. These

thinkers propose that affirmative action is rightfully conceptualized

as something that the marginalized has forced power to concede. As

prominent critical race theorist Charles Lawrence has written:

The original vision of affirmative action proceeded from the

perspective of the subordinated. [When t]he students and

community activists who fought for affirmative action in the

1960s and ’70s . . . demanded affirmative action—when

they sat-in and sued and took over buildings and went on

hunger strikes and closed down universities—they sought

redress for their communities.”

6

II. The Unconstitutionality of Race-Based

Affirmative Action?

A. Regents of the University of California v. Bakke

7

(1978)

Bakke was the first case in which the Court ruled on the legality

of a voluntarily initiated race-based affirmative action program. The

case involved the Medical School of the University of California at

Davis [“the Medical School”]. The Medical School implemented a

race-conscious admissions program after it became apparent that

racial minorities would be underrepresented at the school if it

evaluated all applicants according to traditional standards of merit.

The program required the school to reserve sixteen out of the one

hundred seats in the incoming class for individuals belonging to one

of four designated groups: “Blacks,” “Chicanos,” “Asians,” and

“American Indians.” After Alan Bakke, a white applicant, was denied

admission to the school, he challenged the program on statutory

grounds (i.e., Title VI of the CRA) and constitutional grounds (i.e.,

the Equal Protection Clause of the Fourteenth Amendment).

5

Grutter v. Bollinger, 539 U.S. 306, 350, 372 (2003) (Thomas, J., dissenting).

6

Charles R. Lawrence III, Two Views of the River: A Critique of the Liberal

Defense of Affirmative Action, 101 COLUM. L. REV. 928, 951–52 (2001).

7

Regents of Univ. of Cal. v. Bakke, 438 U.S. 265 (1978).