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 14th 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 2 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.
But this whole fight has huge implications outside education, and I think this is where the diversity justification becomes especially important. Shifting gears a bit, consider, if you will, the ongoing FBI and NYPD surveillance of mosques and Muslim groups, an intense domestic intelligence program that operates almost solely on the basis of religion and not on the basis of evidence of credible threats. The Colorlines article I link to points out that FBI training material for new recruits also reinforces simplistic and Islamophobic beliefs about Muslims and Arabs. This program constitutes a huge violation of the rights of those observed, not least because they appear to be targeted solely for their religious beliefs, and no doubt there are elements of racism undergirding the program.
Those are the easy observations. It’s harder to know what to do about it—how not only to bring an end to the program but also to prevent the FBI from constructing similar programs. A big part of the answer, I think, lies with affirmative action. Part of the problem may be that the FBI doesn’t consciously realize or explicitly acknowledge that their surveillance program is discriminatory, but greater diversity among FBI workers might help to correct for that. For instance, in a 2006 study, social psychologist Samuel Sommers found that mixed race juries were much more likely than all-white juries to consider the possibility of racist practices in law enforcement and in the judiciary in making their decision. He suspects a sort of accountability effect—the members of the all-white juries probably know about these racist practices, too, but it’s the presence of people of color on the jury that compels them to acknowledge these practices and take them into account in the final decision. Similarly, I would hope that government affirmative action programs could correct for racial discrimination in FBI and other government practices today. If they actually made a difference, they would show that affirmative action shouldn’t just be a temporary measure to correct for hiring or admissions (as important as that is) but a long-lasting tool to fight racism in American government and society.