The past, the present and the future of affirmative action

By Rachel ’19, Sophie ’20, Cameron ’20, Kayla ’19 and Fiona ’20

The term affirmative action was first used in the United States by President John FW. Kennedy during the Civil Rights Movement. In an executive order, Kennedy told government contractors to “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 1965, President Lyndon B. Johnson issued an executive order which not only reiterated the mandate for affirmative action, but banned discrimination against minorities and women in decisions regarding hiring or admitting. Furthermore, in 1969, President Nixon passed an executive order calling for affirmative action in all government employment, effectively widening its scope.

English Instructor and former Co-Chair of the Marlborough Equity and Inclusion Committee Christopher Thompson said that affirmative action was first established in America as a compensation for a history of mistreatment of minorities, to increase opportunities for African Americans because of the legacy of slavery.

He explained that affirmative action is a concept derived from the opinion that minority groups and women should be treated equitably, and in a way that grants each group the support it needs respectively in order to reach identical standards. This viewpoint is in contrast to those who support complete equality that gives the exact same amount of support to everyone regardless of advantage or disadvantage.

Since Johnson, Kennedy and Nixon’s executive orders, many colleges have started adopting affirmative action policies for admissions in order to improve educational opportunities for groups that historically been excluded or underrepresented, including minorities and women. Dean of College Counseling and English Instructor Brian K. Smith explained the philosophy behind the consideration of race in the context of educational admissions.

“Often times, individuals coming from selective schools, like Marlborough in particular, may have an unfair advantage whereas students who were of African American descent, Hispanic descent, or even Asian American descent or Indian descent were not always allowed the opportunities to be admitted to schools like this,” Smith said.

Smith explained that the uneven playing field for minorities in education gives them a disadvantage in college admissions. According to the United States Department of Education’s Office for Civil Rights, elementary and high schools with large numbers of minority students historically tend  to employ fewer experienced teachers, and offer less advanced courses and high-quality instructional materials. Minorities and women in America have also in the past suffered through discrimination, placing them in a socially, economically, and politically disadvantaged position.

Despite the way affirmative action is justified by its supporters, the first affirmative action-related policies created controversy among Americans about the constitutionality of benign, or helpful, discrimination.

An example of this is the 1978 case of University of California v. Bakke in which medical school applicant Allan Bakke sued the UC Davis School of Medicine after they rejected him for the second time.

Allan Bakke, a white man, claimed that his rejection was on the basis of race, and that the students of color who were admitted had a lower GPA and MCAT scores than him. The court was explicit in their decision that “the use of race as a criterion in admissions decisions in higher education was constitutionally permissible.” In other words, the use of affirmative action was a legal right of the college, but racial quotas were not.

Conservative justices on the Supreme Court, including Chief Justice John Roberts and Associate Justice Clarence Thomas, have a more negative view on affirmative action. Many conservative justices have argued that affirmative action is unconstitutional.

However, liberal justices have typically supported affirmative action. Debate Coach Adam Torson, J.D. from Hamline University School of Law, explained those judges’ viewpoint.

“Every law creates a classification—a law against murder creates unequal protection for murderers and non-murderers. So the point of the amendment can’t be just to say that there can’t be discriminations or distinctions between people in the law,” Torson said. Instead, the purpose of the 14th Amendment is interpreted as being “to correct or remedy historical discrimination.”

Many colleges have also argued that the state has an interest in admitting a diverse group of students because varying perspectives in the classroom are valuable for learning—thus less constitutional scrutiny should be applied.

“Not only is this a question of discrimination, but also, when the courts do these tests they balance it against the state’s interests…Is this the most narrowly tailored means to achieve a compelling government interest? So, when you throw in the colleges’ desire to have a diverse class as a function of their education, that bolsters the second part of that test,” Torson said.

Community Outreach Program Head Pamela Wright added that another facet of affirmative action is its impact on women, particularly those aiming to pursue male-dominated fields. She said that this component has often been left out of the discussion.

“It’s important that we understand that affirmative action benefits us all as women…in the past there’s been this notion that affirmative action only helps people of color, and that’s inaccurate,” Wright said.

Specifically Title IX, a 1972 act prohibiting discrimination on the basis of gender in any educational or federally funded program, sparked a decades-long period of advancement for women. Since the introduction of Title IX, the percentages of female architects, doctors, lawyers, police officers and scientists—all male-dominated fields—have increased exponentially.

The fairness and effectiveness of affirmative action has become a growing topic of debate in the United States. The Trump Administration has begun to focus on the investigation of affirmative action policies within universities, claiming the implementation of affirmative action in admissions processes creates an issue of discrimination against white applicants. There are ongoing investigations into complaints of alleged racial discrimination in university admission policies and civil rights decisions surrounding affirmative action.

Science Instructor Khanichi Charles disagrees with the current administration’s opposition towards affirmative action. She explained that affirmative action is a necessary step in addressing a history of inequality.

“To say that [affirmative action] shouldn’t exist is not recognizing the fact that there are disparities,” Charles said.

Charles went on to voice her support for affirmative action and emphasize its importance.

“I absolutely believe that [affirmative action] is necessary. I’m probably not the best authority on the fairness of it, but anytime you can identify whether a disparity exists somewhere, if it’s apparent, if it’s in front of you and you see that it exists, you have to ask yourself why it exists and you have to do something about it,” Charles said.

Smith said that the representation of minorities in college has not greatly increased because of affirmative action.

“When you look at the statistics, there really hasn’t been a major shift,” Smith said. “A lot of people think affirmative action maybe has skewed it more towards students of color and it really hasn’t.”

Recent statistics show that minorities are still far less represented in college campuses than they are in the general college-age population. According to data from the New York Times, one of the largest gaps in California college campuses is among Hispanics. In 2015, close to half of the college-age population in California was Hispanic, but only ⅓ of undergraduate students at the Universities of California consisted of Hispanic students.

Additionally, about 6% of undergraduates at top universities are black, compared to the 15% of college-age Americans who are black. Thompson shared his thoughts on the disparities that remain in racial representation.

“By itself, affirmative action is insufficient. I think it is a compensation, but it is not enough,” Thompson said.

Some people, including many in the Marlborough community, believe that affirmative action is not enough

In a recent UltraViolet survey filled out by 68 upper school students, out of 90% who stated they knew what affirmative action was, only 34% felt that they benefit from affirmative action policies, while an even smaller 12% believed affirmative action has succeeded in its goal.

Furthermore, statistics show that Asian American students in particular are disadvantaged by the effects of affirmative action. According to a Princeton study, Asian Americans require an SAT score of at least 140 points greater than their white counterparts in order to be equally considered by college admissions officers. This balances out to be about 270 points above Latino students and 450 points more than African American students.

Several states have banned affirmative action in order to reduce this disparity. Proposition 209 was passed in California in 1996, banning the use of affirmative action policies in college admissions processes within the state. Asian American enrollment at the California Institute of Technology was 25% before affirmative action laws changed, It increased to 43% once the California ban on affirmative action was put into place.

In response to Proposition 209, there have been efforts made by specific schools to establish alternative race-based systems. In a statement made this year by UC President Janet Napolitano, she addressed University of California’s efforts to reinstate a system to aid minority groups in college admissions processes.

“UC has been increasing its outreach efforts to historically underrepresented groups like Latinos and African Americans, while still bound to the strictures of Proposition 209, which bars consideration of race or ethnicity in granting admission,” Napolitano said.

According to the LA Times, UCLA has focused on recruiting in high-minority areas in order to increase campus diversity, and has successfully met the numbers of minority student enrollment that it had before Proposition 209 was implemented.

The ongoing debate surrounding the topic of affirmative action in the United States, along with the more recent discussion within the Department of Justice (DOJ) and on college campuses, suggest that affirmative action policies will undergo changes in the coming years.

When the New York Times published an article after receiving an internal announcement from the DOJ in Aug., people began to wonder how the Trump Administration would affect future affirmative action policies.

According to the New York Times, the announcement called for lawyers who were willing to work on investigations about discrimination in college admissions.

The day after the article was published, DOJ spokeswoman Sarah Isgur Flores said in a statement that the announcement called for volunteers to investigate a complaint filed by a group of 64 Asian-American associations in 2015 against Harvard University, not universities in general.

However, some believe the announcement indicates the Trump administration’s desire to use this investigation as a starting point for deeper, more widespread changes to affirmative action policies.

Roger Clegg, current president of the Center for Equal Opportunity and an official in the Civil Rights Division during the Reagan and Bush administrations wrote in the New York Times on Wednesday, Aug. 2 that he hopes the Trump administration will begin investigating multiple cases regarding affirmative action.

A PBS Newshour article used past statements from Attorney General Jeff Sessions as an indication of how the DOJ plans to approach their investigations and the topic of affirmative action as a whole.

“[Affirmative action has] delayed the kind of movement to racial harmony we ought to be going forward [with] today,” Sessions said in 1997, according to the article. “I think it makes people unhappy if they lost a contract or a right to go to a school or a privilege to attend a university simply because of their race.”

The Supreme Court’s 2016 decision to uphold that that race is a constitutional factor in university admissions decisions suggests an opposing point of view. However, because the Supreme Court also clarified the illegality of racial quotas, according to the New York Times,  the potential impact of the DOJ’s investigations remains unclear.

The investigations alone cannot force colleges to change their affirmative action policies. Yet, they are “time-consuming, expensive, and attention-getting — and can have a major effect on colleges’ policies,” by putting them in the public eye, according to a Vox article published in Aug.

Whether or not the investigations directly affect affirmative action policies, some universities have already begun to change the factors they consider in admissions. Class-based affirmative action has been implemented by some universities, in an effort to move away from race-based affirmative action altogether, according to an NBC article published in 2015.

For example, the NBC article cited the University of Colorado-Boulder’s system, which allows them to “measure the students’ relative perseverance in the context of obstacles to their upward mobility.”

This program increased admission of low-income and underrepresented minorities compared to race-based admissions policies at University of Colorado-Boulder, according to an opinion article written by Richard D. Kahlenberg and Halley Potter of The Century Foundation for The New York Times in 2014.

Marlborough students are also supportive of class-based affirmative action. 91.7% of students who responded to the UltraViolet survey said class should be a factor in affirmative action.

Support for class-based affirmative action and success of policies like UC Boulder’s suggests that affirmative action may be shifting towards factors other than race in the coming years.

In response to these changes, both advocates and opponents of affirmative action question the amount of time these policies will take to accomplish their goal.

“We can decide that we are all free and equal, but if, within the population, persistent racism keeps a particular population down, then the time factor in the affirmative action legacy is going to last much much longer,” Thompson said.

This belief suggests that, based on our country’s history, affirmative action will need to remain part of society for years to come.

Vitanza agreed that policies that aim to encourage diversity and equity will continue to be important, and said that without them, people may not interact with those who come from different backgrounds.

“At a certain point, either through public policies or laws, you have to encourage people to come together again,”  Vitanza said.

Marlborough’s Opinions of Affirmative Action

Affirmative action is an issue of some debate in the Marlborough community. Teachers and students have a variety of opinions, many in support of the policy. In the UltraViolet survey, 98.5 % of the respondents answered yes to the question, “Should institutions such as schools have policies that provide equal access to education for those groups that have been historically excluded or underrepresented, such as women and minorities?”

“We’re not going to get to an equal playing field if people who have been historically disadvantaged are not allowed to reach the level of people who have been historically privileged,” Kate ’18 said.

English Instructor and former Co-Chair of the Diversity Committee Chris Thompson agreed that the role of affirmative action is to help make up for social injustice, an issue certain groups of people have faced since the founding of America.

“Several centuries of injustice have had an unfair effect on certain parts of our population and the country needs to fix that problem, partially by helping those oppressed peoples climb on the ladder to where they would have been if they hadn’t been oppressed to begin with,” Thompson said.

A common argument of people opposing affirmative action is that it can give certain people an unfair advantage over others just because of their race. In the Ultraviolet survey, 32.8% said that affirmative action policies decrease traditionally overrepresented groups’ (eg. white Americans) chances of getting into schools and 39.8 % think affirmative action policies have caused them to question their achievements.

Similarly, Charles said she feels that claims she has an unfair advantage undermine her accomplishments.

“I think for some people there’s a presumption that you are somehow underqualified, but just because of your [racial] background, you were accepted. Sometimes there’s a presumption that you’re not at the same level as other students in the program and should therefore be based on socioeconomic status instead,” Charles said.

EAST (Exploring Asian Societies Together) affinity group member Amanda ’18 explained that she is not in opposition to affirmative action, but feels that it might be more effective if it were based on socioeconomic status rather than race.

“For me personally, if there was to be a system of affirmative action, I would rather it be based on socioeconomic status rather than racial status because a socioeconomic system would still most likely represent racial minorities because of how our society has unfortunately traditionally segregated those… groups of people….but at the same time also represent poor Asian Americans and poor Caucasian Americans who don’t have the same opportunities as, say, a wealthy African American student,” Amanda said.

Raina ’18, co-leader of African American Cultural Exchange,  AACE, thinks that justifications for affirmative action are fair.

“I think it’s important to realize that the whole point of having affirmative action is because someone recognized that [minorities] don’t have the same opportunities… It’s because we don’t have an advantage that we get this extra boost,” Reina said.

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