Now that the Supreme Court has ended affirmative action in college admissions, it may be useful to reflect on the history of the program. During past periods of manifest and violent racism, affirmative action, along with policies and laws protecting the rights of marginalized groups, held promise as a reasonable remedy for the ongoing practice and continuing effects of discrimination. Many thought that, in spite of its apparent limitations, such an approach would, if narrowly tailored, assist in bringing an end to the troubling legacy of discrimination.
I agree that the ideal of color-blind decisions should govern in a multiracial and multiethnic nation, but the realization of such an ideal requires neutral, ethical, well-informed, and well-meaning people committed to honoring the goal of fairness across all groups. We should therefore expect that if we rely exclusively on the infallibility of individuals in carrying out durably fair practices on the sole basis of objective assessment, such a goal may largely remain unfulfilled. Any public policy seeking to create a lasting commitment to fairness must first acknowledge what history has amply demonstrated — that the natural propensity to be self-serving and biased when judging others who are different will perennially interfere with the conduct of a fair process.
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The initiation and implementation of affirmative action programs demonstrated the difficulty of achieving equality under the law. While some members of groups that had historically experienced discrimination gained access to education and employment, persistent bias affected their ultimate ability to enjoy the full measure of inclusion. A stubborn resistance to the ideal of equal access continued to predominate in many companies, educational institutions, and government, making the experience of aspirants and newcomers less than equal. In the face of roadblocks to full access, many institutions broadened efforts to lower barriers to advancement.
Diversity offices and tenets of diversity arose as a means of making affirmative action more effective in eliminating the nearly impermeable barriers erected over centuries of bias and discrimination. Institutions proceeded with a dizzying array of efforts to curate environments that would be open and welcoming to a newly diverse population of students and workers. Educating community members about implicit bias in decision-making, offices of diversity and inclusion formulated ambitious plans to create environments in which all participants could feel validated and respected. Their efforts included calling out unfair attitudes and practices as well as identifying specific sectors where bias continued to result in limited access for different groups.
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The case brought against Harvard University by Students for Fair Admissions poses a timely and, in the end, fair question. After 40 years of affirmative action, is it time to reconsider not only the effectiveness of this policy, but its fairness in view of the implicit necessity of barring others in favor of admitting those from previously excluded groups? Should, for example, students applying for admission to Harvard University and the University of North Carolina with higher grade point averages and test scores than some students admitted under affirmative action be denied admission while students with lower test scores and grade point averages are admitted because of past discrimination against the group that they represent? This is decidedly an important question and one that deserved to be heard by the highest court.
As we weigh the import of the Supreme Court ruling, we should consider the circumstances that preceded affirmative action and that will likely persist well beyond the court’s decision. Mindful of the original intent of affirmative action, we should remember that ensuring equal access under the Constitution should not be subject to the whims and preferences of individual groups in control at any given time. At a minimum, a continuingly watchful approach, one that regularly monitors how marginalized groups are being treated, is of utmost importance. Manifest in our aim of having a common national purpose is the need for fairness in holding together an ever more fragile democracy. That fairness must be robust, not relying merely on individual winners and losers but on the strength of our belief in and commitment to the goal of fairness and inclusion across all groups.
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Before returning to pre-affirmative action admission practices, we should remember that the history of merit in college admission does not assure us of fairness. There has never been a sustained period of time during which university and college admission practices have been governed solely by test scores and grades. Yet, many presume merit to be reliant on both. Even prior to affirmative action, universities admitted students based on a variety of factors, including ties of family members to the university, past generosity and future potential to give, and the need for geographical and international diversity. The variation in the application of these factors clearly belies the assertion that admission can be based purely on “merit” if merit is understood to rely solely on prior academic performance as shown in grades and test scores.
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In judging merit, how does one quantify the value that a ballet dancer, lacrosse player, creative writer, or teen entrepreneur might bring to the environment? And what awaits a university that is giving preference on the basis of such factors? The argument that race or any personal characteristic should be barred as a factor rings hollow in view of the wide array of preferences that will continue to be in use across college admission. Further, there is no evidence to show that the use of these preferences has undermined the quality of education afforded students or the national interests. Quite the contrary. Other nations routinely observe that the strength of our higher education institutions has been their capacity to develop potential that stokes competition and achievement, creating an economic engine which has dominated the world for many decades. What happens to that engine when universities admit students based solely on quantitative factors, eliminating the consideration of compelling factors such as the role that society’s treatment of their group has on their learning and development?
Previous interpretation of the parameters of college admission following Grutter v. Bollinger held that the use of race as one factor in admission was not unconstitutional if narrowly tailored and carried out in furtherance of compelling interests, such as sustaining the educational benefits available in a diverse student body. As an expert witness in the Students for Fair Admissions v. President and Fellows of Harvard University, I pondered this provision in light of the current state of race relations and diversity in the country. I have never considered affirmative action the ideal solution to the history of racism in our country. While well-intended, it was flawed from the outset. Its overdependence on individual actors and institutions to shape perhaps the single most important issue in the country was unrealistic at best.
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So what are we to do with the decision of the Supreme Court to set aside affirmative action and, potentially, other efforts to resolve the enduring dilemma of bias in our nation? As I testified at trial, this is a dilemma on which rests our future as a country. The simple premise that we must find a way to uphold impartial treatment and equal access is central to what we will become and the key to how our children will fare as unfair practices continue to roil the nation and interrupt progress. My question at trial to opposing counsel when I was asked about diversity was, simply, “If we don’t pay attention to fostering proximity and understanding among the diversity of stakeholders in this country, what is to become of us?” Peace and prosperity depends on agreement among us as to how we will prioritize our goals. It depends on the degree to which we apply ourselves to embracing others who claim an equal right to be a part of this nation.
We must now make a sincere effort to reformulate the means of addressing historic and enduring inequities in the country. It is clear that we have not yet perfected the way forward but, given the urgency of this issue, we must redouble our efforts to avoid falling back into the dark days of segregation and racism.
Many will now claim that it was the overly zealous implementation of diversity and inclusion that created the climate for the elimination of affirmative efforts. One could just as easily claim that it was the overzealous racism of the ’50s and ‘60s that created the climate for affirmative action and diversity. Whether there is a middle ground that would allow for sufficiently effective and speedy progress toward our aim of a more perfect union is debatable, but we must try. If we are to be a nation at peace with its founding principles, we must try. If there is to be comfort that every child, no matter what race, gender, or identity, can expect to be treated fairly under the Constitution, we must try. If we are to be one nation, we must try with all our might.
Ruth J. Simmons is the former president of Smith College, Brown University, and Prairie View A&M University, the oldest of Texas’s historically Black colleges and universities, and the former vice provost of Princeton.
