Race-Conscious Policies—Including Affirmative Action—Are Necessary For Addressing Racial Inequity

Affirmative action recently survived yet another legal attack when the First Circuit Court of Appeals ruled in Harvard’s favor in a case challenging affirmative action. But the fight for affirmative action and other race-conscious policies—policies that explicitly address systemic racial barriers—is not over.

Race-Conscious Policies—Including Affirmative Action—Are Necessary For Addressing Racial Inequity
A demonstration on the 40th anniversary of the 1963 Civil Rights March on Washington on August 23, 2003. (Elvert Barnes Protest Photography / Flickr)

Affirmative action recently survived yet another legal attack: Last week, the First Circuit Court of Appeals ruled in Harvard’s favor in a long-running case challenging affirmative action. The court rightly upheld a lower court finding that Harvard’s use of race as a factor in its admissions process is constitutional. The decision is a welcome affirmation that using race-conscious decision-making is both lawful and necessary in higher education.

Consideration of all aspects of a student’s background for admission—including race—is not only constitutional; it’s critical to becoming a more equitable society. That’s why the ACLU filed a friend of the court brief (also known as an amicus brief) supporting Harvard’s ability to consider race when deciding which of its 35,000 applicants will fill the 1,600 seats in its incoming class each year.

But the fight for affirmative action and other race-conscious policies—policies that explicitly address systemic racial barriers—is not over.

The Harvard affirmative action case is the latest legal challenge engineered by conservative legal strategist Edward Blum, who has been suing to bring an end to race-conscious policies, including affirmative action, for more than 25 years.

Opponents of race-conscious decision-making, like Blum, misleadingly characterize such policies as discriminatory simply because they acknowledge the reality of race. But in fact, race-conscious policies aim to address racial discrimination by recognizing and responding to the structural barriers that have long denied full social, political and economic participation to people of color in the U.S.

Blum opposes race-conscious policies in part because he believes that these barriers no longer exist. “In 1964 and 1965,” Blum has stated, “America was held hostage by the legacies of slavery and the chokehold of Jim Crow. Fast forward to [today] … the chokehold has gone away.”

This view is misguided at best.

Affirmative action opponents often favor so-called race-neutral admissions policies, which do not explicitly consider race. But in the face of persistent structural inequality, such policies are anything but “neutral.”

Research shows that schools that rely on race-neutral policies are less diverse and less accessible to historically underrepresented students of color.

Campuses that have implemented race-neutral admissions policies in recent years have seen dramatic declines in enrollment numbers among underrepresented groups. For example, in the first year UC Berkeley eliminated race as a factor in its admissions, the admissions rate for Black students dropped from 50 percent to 20 percent and from 45 percent to 21 percent for Latinx students.


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For its part, although the Supreme Court has consistently ruled it is legal to use race as a factor in a holistic application process, it has long viewed race-conscious policies with suspicion. Since its 1978 decision in Regents of the University of California v. Bakke, the court has failed to meaningfully distinguish race-based policies, which seek to dismantle racial hierarchy, from those that aim to perpetuate it.

While the court continues to permit affirmative action policies in higher education, it has done so with increasing hesitance and an ever-growing preference for race-neutral alternatives.

And importantly, the court is not the only place where skepticism of race-conscious policies exists: Voters in California recently rejected a ballot measure that would have restored the state’s affirmative action policy, suggesting broad public unease with race-conscious decision-making.

But the view of race consciousness as racial discrimination is deeply flawed. As the late Justice John Paul Stevens once asserted:

“There is no moral or constitutional equivalence between a policy that is designed to perpetuate a caste system and one that seeks to eradicate racial subordination.”

This latest case against Harvard demonstrates that color-blindness cannot uproot this country’s legacy of racism. We must face race head-on to meaningfully address the racial inequality that persists in our society.

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About

Tiffani Burgess is a Legal Fellow with the ACLU Racial Justice Program.