Retain Affirmative Action—Because It's the Morally Right Thing to Do

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Lyndon B. Johnson and Martin Luther King Jr. in 1965. In a speech that year at Howard U., President Johnson said civil-rights laws alone were not enough to make up for "ancient brutality, past injustice, and present prejudice." Affirmative action was needed.
October 08, 2012

We have heard it before: "In America, you will go as far as your talent and work ethic will take you." This mantra has served as a guiding principle since the earliest days of our nation. It expresses the virtues of freedom, equality, and American ingenuity, and has served as the premise of the "up by the bootstraps" and rags-to-riches stories that inspire us all. It is the American Dream. Too bad it is a myth.

The truth is that there are people in this country who will never make it, no matter how talented they are or how hard they work. The myth of American meritocracy—the notion that all men (and women) not only are created equal but are afforded equal opportunity—has served as a cruel yet compelling means of compounding the effects of historical inequality. Poverty, so it goes, is the result of deficient intelligence or a subpar work ethic among the poor. The radiating effects of history and contemporary structural barriers are not considered. Poverty, bad grades, even bad health represent flaws of the individual.

In his 1965 commencement speech at Howard University, President Lyndon B. Johnson lamented that even during the postwar boom, a period of unprecedented prosperity, black Americans were falling behind. This "widening gulf" was typified by unemployment rates that had gone from rough equivalence between blacks and whites just after the Second World War to almost double for blacks by 1965. The period also saw declining income, wealth, and health-care outcomes among blacks relative to whites. "Negroes," according to LBJ, were "trapped ... in inherited, gateless poverty."

These trends persist to this day. The wealth ratio between whites and blacks is now 20 to 1—meaning that the typical black family possesses just 5 percent of the wealth of the typical white family. The unemployment rate for blacks is roughly double that of whites, and median earnings for employed blacks lag behind that of whites. Likewise, life-expectancy and infant-mortality rates have a disparate racial character, as do educational outcomes. These disparities, viewed through the myth of the American meritocracy, would suggest that blacks are simply dimwitted and idle. The truth, however, is that the disparities, in the words of President Johnson, are "the consequence of ancient brutality, past injustice, and present prejudice."

Even though our mythical meritocracy has been a powerful means of advancing immoral objectives, attempts have been made to introduce some semblance of morality. In his speech at Howard, President Johnson argued that civil-rights laws alone were not enough to level the playing field. Shortly thereafter, he signed the first executive order mandating affirmative action in government contracting. Around the same time, colleges and universities began making affirmative efforts to recruit and enroll students of color.

The use of affirmative action in college admissions and other means of recruiting students of color has led to significant increases in diversity on the campuses of many predominantly white institutions. The proportion of black students attending such colleges has increased from 30 percent in the early 1960s to 80 percent today. This trend represents an opening of formerly closed pathways over the last half century, but it should not be confused with an "arrival." Blacks, Latinos, and Native Americans are still underrepresented in higher education, especially at the nation's most competitive schools. And depending on the Supreme Court's decision in Fisher v. University of Texas at Austin, which the court hears this week, affirmative action may soon be rendered little more than an abstract notion.

President Johnson saw affirmative action as a form of redress—a practical supplement to the theoretical freedom that had only recently been guaranteed. Indeed, this was the most compelling justification for affirmative action. The consequences of ancient brutality, past injustice, and present prejudice necessitated intentional, affirmative efforts to ensure that all Americans could go, unburdened, as far as their talent and work ethic would take them. This justification, however, was deemed illegitimate by the Supreme Court in Regents of the University of California v. Bakke, the seminal case involving affirmative action in higher education.

Justice Lewis F. Powell Jr., in his controlling decision, held that affirmative action could not be used to remedy "historic deficits of traditionally disfavored minorities." Moreover, it could not be used to help "certain groups ... perceived as victims of societal discrimination." Justice Powell, nonetheless, held that a college could consider race in admissions, but only pursuant to its right to select students it felt would best foster a "robust exchange of ideas." Twenty-five years later, in 2003, Justice Sandra Day O'Connor relied on Justice Powell's reasoning in upholding the University of Michigan law school's affirmative-action admissions policy in Grutter v. Bollinger.

But the Supreme Court's narrow acceptance of affirmative action misses the point of the policy. There would be no need for compensatory preferences like affirmative action if there were no harms for which to compensate. The student diversity that contributes to robust learning environments would occur organically were it not for the systematic injustices aimed at certain groups of people. The court's eschewing of affirmative action's most compelling justification placed the policy on an unstable footing that will probably be disturbed further in Fisher v. Texas. The philosophical makeup of the court portends a significant restricting of the permissible use of affirmative action in higher education, and with this shift will go probably the most successful means of making our meritocracy the moral construct we have been duped into believing it already is.

One of my favorite documentaries is School Crusade: A Tale of Urban School Reform. It follows David Hornbeck, a former superintendent of Philadelphia's troubled school district. Mr. Hornbeck, an ordained minister, had a messianic belief that all children could learn, irrespective of race, class, or disability. The final scene is set at his going-away party, where a group of young schoolchildren, clad in their Sunday best, serenades him with a rendition of "Ain't No Mountain High Enough." This scene never ceases to move me. For far too many of those kids, poor and stuck in terrible schools, the mountain was high enough. Too high. And across the country there are so many more children whose talents and work ethic will be irrelevant to how far they go in life. Their places within our meritocracy are sadly preordained. Morality be damned.

Aaron N. Taylor is an assistant professor at the Saint Louis University School of Law.