In 1961, at the height of the civil-rights era, President John F. Kennedy signed an executive order designed to improve access to opportunity for Black Americans. Government contractors were compelled to “take affirmative action to ensure that applicants are employed, and employees are treated during employment, without regard to their race, creed, color, or national origin.” Six decades on, Americans remain divided over affirmative action. Some believe we do not have enough of it; others believe we have too much of it. And now the debate is about to get even more contentious.
Today, the Supreme Court will hear opening arguments in two affirmative-action cases: Students for Fair Admissions v. Harvard and Students for Fair Admissions v. University of North Carolina at Chapel Hill. The first case contends that Harvard’s race-conscious admissions policy violates Title VI of the Civil Rights Act of 1964. The second case alleges that UNC unconstitutionally favors Black and Latino students over others in its admissions process, violating the Fourteenth Amendment’s equal-protection clause, which prohibits selective denial of rights on the basis of race.
The cases represent a standoff between those who insist that the college-admissions process should essentially be limited to quantitative metrics, such as grades and test scores, and those who believe grades and test scores should be one of many factors in the admissions equation—along with leadership qualities, personal talents, race and ethnicity, and family circumstances. Ostensibly, the conflict between these opposing viewpoints was resolved two decades ago in the 2003 Supreme Court decision that bears one of our names, Grutter v. Bollinger—which held that the University of Michigan’s law-school-admission policy was constitutional because it was narrowly tailored to serve the compelling interest of attaining a diverse student body. Grutter was a landmark decision on affirmative action in higher education: It was the first case in which a majority of the Court adopted a unified position holding affirmative action to be constitutional under the Fourteenth Amendment. But, as the upcoming cases attest, as a matter of legal interpretation, disagreement continues between those who aspire to absolute color blindness and those who defend the need for fostering a racially and ethnically fair learning environment.
A core element of this debate hinges on the notion of what constitutes “diversity” in contemporary America. In 1954, when Brown v. Board of Education compelled the desegregation of American schools—and sought to integrate American society—racial inequality in the U.S. was literally a black-and-white issue: 89 percent of the country was white, and 10 percent was Black. Today, white, Black, Asian American, and Latino students vie for admission alongside students from around the world. Some students—regardless of ethnicity—are privileged; others are disadvantaged.
Against this backdrop, we contend that Black students remain particularly and egregiously disadvantaged. Further, we contend that we need affirmative action now more than ever precisely because of today’s increased demographic complexity. If we do not redouble our commitment, Black students won’t just remain at the back of the line in American life; they will be pushed even further back.
To be sure, efforts to create equal opportunity and remediate past injustice through affirmative action have driven progress for Black Americans, who now occupy senior positions in many of our most prestigious and influential institutions—including the courts, universities, and corporations. But we must confront the irrefutable truth that in contemporary America, Black students’ educational opportunities vis-à-vis other groups remain separate and unequal.
From 1988 to 2014, the number of K–12 schools in the U.S. that had a 99 percent nonwhite student population more than doubled, from 2,762 schools to 6,727. By the 2010s, the percentage of Black students attending schools across the South that were at least 50 percent white had plunged by nearly half, from a peak of 44 percent to 23 percent. Predominantly white school districts collectively receive $23 billion more a year than predominantly nonwhite school districts, where Black students are less likely than white students to have access to college-preparatory-level math and science courses. Black Americans still lag behind white Americans in overall educational attainment. And Black males are twice as likely to quit school as their white male classmates.
Consequently, getting into college, competing once there, and graduating four years later is a harder slog for Black students, many of whom are underprepared and underfinanced compared with their white counterparts on campus. As a 2022 report issued by the Economic Policy Institute notes, “In 1968 blacks were just over half (56.0 percent) as likely as whites to have a college degree, a situation that is essentially the same today (54.2 percent).”
In Grutter, Justice Sandra Day O’Connor, writing for the majority, posited a “sunset clause” on racism in America. By the year 2028, she contended, puzzlingly, America would be color-blind. About five years shy of the arbitrary deadline she established, it is impossible to argue that Black Americans enjoy equality of opportunity. They do not. Affirmative action must continue, potentially for generations to come—because the invidious discrimination experienced by Black Americans over a three-century span has not been undone.