March 11, 2022 | OPINION | By Andrew Hoffman
After reading an article by retired University of Toronto professor Jordan Peterson, in which he decries the growing influence of diversity, inclusivity and equity initiatives (which he gives the not so subtle acronym of DIE) in academia, I couldn’t help but think of the ongoing American debate on the relevance of affirmative action.
But as I began to research the topic to provide my opinion on the affirmative action debate, I realized how deeply complicated even defining and understanding the topic actually is.
In order to write an argumentative article on the topic of affirmative action, I must define the concept first. So, this argument on affirmative action will be a two-parter.
Affirmative action is a set of policies originating from John F. Kennedy’s 1961 executive order, stating that “the contractor will take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, creed, color, or national origin.”
In other words, affirmative action is defined as policies taken to remedy the past effect of discrimination. What those policies precisely are, though, is very broad and can be interpreted as a variety of prescriptive policies.
Affirmative action in the higher education sphere is even more complicated; it exists as a series of federal laws, Supreme Court rulings, widely differing state policies, and private universities’ admission policies. The best place to start with these legal policies for affirmative action is at the federal level, as we can easily establish what affirmative action can and cannot be in America.
Thankfully, Cornell Law School provided an easy, comprehensible, and non-exhaustive list of these federal and constitutional limitations. The federal laws surrounding affirmative action include the federal regulation that educational institutions receiving federal funds are required to document their affirmative action policies, and educational institutions that acted discriminatorily in the past must use affirmative action policies as a remedy.
The other major affirmative action policies include Title VI of the Civil Right Act, which prohibits racial and ethnic discrimination in education, Age Discrimination Act of 1975, which addresses age discrimination, Title IX of the Educational Ammendments of 1972, which covers gender, Section 504 of the Rehabilitation Act of 1973 and Title II of the Americans with Disabilities Act, which protect those with disabilities, and finally Section 9525 of the Elementary and Secondary Education Act of 1965, as amended by the No Child Left Behind Act of 2001, which guarantees equal access to community members to school facilities after school hours.
While these laws are well known and relatively uncontroversial, they do reflect the key point that the definitions surrounding affirmative action are broad and tough to define; more simply put, what exactly counts as discrimination versus what serves as restoration.
If we examine America’s history of slavery, ethnically biased legal procedures, and multiple treaty violations with the first nations, even some free-market capitalists would argue that victims of these historical injustices are entitled to reparations because of their violated property rights.
On the other hand, this would require taking money back from people today who have not committed those crimes and thus they would effectively be paying for their ancestor’s sins. The point I am trying to illustrate is that to white people, it might feel that this restoration is actually punitive towards them. So, the question of where restoration ends is at the heart of the debate of the continued relevance of affirmative action.
While I’ll be saving my personal arguments for next block’s issue, I do want to highlight what the United States government considers “enough restoration”. In the 1978 Supreme Court Case, Regents of University of California v. Bakke, the legal takeaway was that it was unconstitutional to hold racial quotas in college admissions. In Gratz. v. Bollinger, in 2003, the University of Michigan used a point-based system where members of underrepresented minorities received additional points. The court ruled that this system failed the “strict scrutiny” requirement that race-based methods must be used, and thus a point-based system was ruled unconstitutional.
Also in 2003, in Grutter v. Bollinger, the University of Michigan’s law school was sued for accounting for race in its admissions process. In this particular case, though, the law school did not use a point system, and race was one of a large number of factors. Additionally, race could not automatically account for an acceptance or rejection (unlike Gratz, where 20 points could make or break your admission).
Rather, University of Michigan’s law school engaged in a highly individualized and holistic review process, where serious consideration was given to the myriad of ways a potential student could contribute to a diverse learning environment. That case was ruled in favor of the University of Michigan. Finally, in the majority opinion, Justice O’Connor wrote that “the Court expects that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.”
While there are other settled and potential cases that have relevance, including the ongoing SFFA v. Harvard case, which alleges that Harvard’s affirmative action policies are detrimental to Asian Americans and white Americans, I want to shift focus on to state policies. It is constitutional to ban affirmative action, and eight have already done so. These eight states are California (1996), Washington (1998), Florida (1999), Michigan (2006), Nebraska (2008), Arizona (2010), New Hampshire (2011) and Oklahoma (2012). Colorado considered banning it in their state constitution in 2008.
I hope that the most basic takeaway on this issue is that it is incredibly complex, and each case is deserving of its own in-depth research. As we aim to create a more equitable and just society that rectifies America’s historic wrongs, I cannot stress more the value of nuance when approaching these policies. Come back next block to read my defense on diversity in education, and the subsequent need for the consideration of race in college admissions.