The Future of Affirmative Action

There is an ongoing war in Michigan on the status of affirmative action in higher education, and a new chapter of this conflict opened on July 1: the 6th Circuit Court of Appeals reversed a lower court decision in support of the Michigan Civil Rights Initiative (or Proposal 2). The MCRI essentially banned affirmative action by denying any sort of preferential treatment on the basis of race, ethnicity, sex, and other categories. Michigan voters passed the MCRI in 2006 on a roughly 60-40 split, but the circuit court held that the law placed an unfair burden on racial and ethnic minorities and thus violated their 14^th Amendment rights to equal protection under the law.

A little history might help here: struggles over affirmative action in higher education reach back to 1978 in the case Regents of the University of California v. Bakke, which rejected stronger forms of affirmative action as a sort of “reverse discrimination.” Justice Lewis Powell in his decision claimed that affirmative action designed as a counterweight to existing discrimination or to correct for historical underrepresentation amounted to “discrimination for its own sake,” though “properly tailored” programs aimed strictly at promoting diversity in a class were acceptable. Similar decisions were reached about the University of Michigan’s affirmative action programs in two Supreme Court cases in 2003, Grutter v. Bollinger and Gratz v. Bollinger. The latter nixed UM’s undergraduate admissions process of using pre-assigned point values corresponding to race, though in the former the Supreme Court upheld UM Law School’s more holistic admissions process, which considered race among other factors but did not assign it a fixed weight. Grutter held up diversity as a “compelling interest” that could be pursued by appropriately designed affirmative action programs. But all such programs were wiped out in Michigan by 2006’s Proposal 2.

So, for the time being, affirmative action is legal once again in Michigan, though the July decision will certainly be appealed up to the Supreme Court. I really hope it survives its impending appellate challenges—even more than the diversity justification, I think affirmative action is an essential counterweight to discrimination that racial and ethnic minorities still face today. In our decidedly non-post-racial society, affirmative action is just as important as when the concept was introduced by JFK in 1965.  It’s about as hard, for instance, for a person of color to get a job than it is for a white person with a criminal record to get that same job.  We haven’t left racism and discrimination in hiring (and, probably, admissions) behind us, and we thus probably shouldn’t leave affirmative action behind us either.

(Stock photo courtesy of sxc.hu)