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Writer's pictureThe University of Wisconsin Pre-Law Journal
Jan 265 min read

Affirmative Action Stands Unmatched in its Effectiveness and Importance for American Culture



Writer: Madeline Odau

Editor: Kayla Buth

Fall 2023


Following a noteworthy decision made by the Supreme Court on June 29, 2023, Affirmative Action is now declared unconstitutional in the United States– the court claiming that, especially in university settings, it violates the Equal Protection Clause of the Fourteenth Amendment. One of the original cases reviewed, Students for Fair Admissions Inc. v. President and Fellows of Harvard College, was a long time coming. The clause itself was created nearly 200 years ago, and in the past three years or so, more than a dozen lawsuits have been filed using the clause to allege reverse discrimination (The Washington Post, 2023).


Affirmative Action has been a tool for universities and workplaces for nearly 50 years after it was created in response to the civil rights movement (Clinton White House Archives, n.d.), meaning these organizations were allowed to devote resources to ensure people were not discriminated against in the processes of applications and otherwise on the basis of race or sex. It shared the same goal as the Equal Opportunity Act, yet Affirmative Action was much more proactive in its measures, gaining much more backlash than its companion policy. Very soon after its creation, in 1978, explicit quotas and set-asides for different minority groups were prohibited, yet Affirmative Action still existed throughout many institutions in the United States with the use of ‘plus factors’ (Annual Review of Psychology, 2006). Particularly in university applications such as Harvard which were challenged, these plus factors were intended to give applicants who chose to disclose their race or ethnicity and were a part of a disadvantaged minority group a ‘boost’ to their application. The main problem this policy addressed is that disadvantaged minorities statistically have fewer credentials compared to their white counterparts, yet of course, the performance levels of both groups hold very little difference (Swedish Economic Policy Review, 2007). By slightly assisting disadvantaged groups into universities, the end goal of the policy was to slowly but surely mend the wide historical gaps of privilege as higher university admittance and then hopefully graduation rates led to higher employment rates and hopefully at least nearing equal rates of pay.


No alternative can be nearly as effective and important to American culture as Affirmative Action, yet with the result of the June Supreme Court decision, arguments have been thrown back and forth with different options around the ban, and whether an alternative should even be pursued. Justice, Ketanji Brown Jackson, proposed a hypothetical during the oral arguments in October and expanded upon it in her dissent months later that showcases one of the crucial reasons why Affirmative Action should not be replaced or removed,


“The first applicant says: ‘I’m from North Carolina. My family has been in this area for generations, since before the Civil War, and I would like you to know that I will be the fifth generation to graduate from the University of North Carolina. I now have that opportunity to do that, and given my family background, it’s important to me that I get to attend this university. I want to honor my family’s legacy by going to this school.’ The second applicant says, ‘I’m from North Carolina, my family’s been in this area for generations, since before the Civil War, but they were slaves and never had a chance to attend this venerable institution. As an African American, I now have that opportunity, and given my family– family background, it’s important to me to attend this university. I want to honor my family legacy by going to this school’… at bare minimum, one generation ago, James’s family was six generations behind because of their race, making John’s six generations ahead.”


Although yes, it is incredibly important for poverty-preference policies to be instituted as well, they cannot stand as replacements for race-focused policies. Socioeconomic status can be a factor in disadvantaged groups, and universities should absolutely be more accessible to lower-income applicants, but forgetting race in that equation would mean forgetting exactly what Justice Jackson was addressing– the struggles minority groups face have an innumerable amount of facets, so excluding those minorities that are of higher-income from these policies would not be just (Economic Policy Institute, 2023).


The best solution is to not replace Affirmative Action at all. Universities have the most power in achieving this goal by attempting to get the Supreme Court to reevaluate, so petitioning universities and local governments to still believe and fight for race-focused policies may be the most the public can do at this point in time. Another opportunity for universities lies in a possible loophole that was created by Chief Justice John Roberts at the end of the court’s statement, “Nothing in this opinion should be construed as prohibiting universities from considering an applicant’s discussion of how race affected his or her life, be it through discrimination, inspiration, or otherwise” (Mother Jones, 2023). Although he claimed that he was simply upholding the fact that the experiences of an individual can still be considered in an application if they are an effect of race as long as the evaluation of the entire application wasn’t based on race, this idea is what can allow Affirmative Action in a very small manner to continue to exist– even if only through personal essays and diversity statements for now.


In the end, no matter if Affirmative Action is returned or replaced, the inequities held historically by minority groups will be perpetuated for a long time to come– yet Affirmative Action takes the necessary steps to slowly bridge that gap in privilege. Although there are a few losses in advantaged group applicants, the losses are small when considering the actual percentages of each racial group in the United States in comparison to their numbers in higher education and the workplace. By devoting resources to help these specific disadvantaged groups achieve higher education and work, these disparities will over time lessen, and a truly equal and equitable society will be much more attainable.


 

References


Camera, Lauren. (2016, January 12). Poverty Preference Admissions: The New Affirmative


Crosby, F. J., Iyer, A., & Sincharoen, S. (2006). Understanding Affirmative Action. Annual

Review of Psychology, 57(1), 585–611. https://doi.org/10.1146/annurev.psych.57.102904.190029.


Equal Protection and Rational Basis Review Generally. (n.d.). Constitution Annotated.


Holzer, H. J. (2007). The economic impact of affirmative action in the US. Swedish Economic


Levy, Pema. (2023, June 29). Did Justice Jackson Sneak a Loophole into the Supreme


Mark, J. (2023, November 7). A law that helped end slavery is now a weapon to end


Sander, R. H. (2004). A Systemic Analysis of Affirmative Action in American Law Schools.

Stanford Law Review, 57(2), 367–483. https://www.jstor.org/stable/pdf/40040209.pdf.


The Supreme Court’s ban on affirmative action means colleges will struggle to meet goals of


2. AFFIRMATIVE ACTION: HISTORY AND RATIONALE. (n.d.). Clinton White House Archives.


20-1199 Students for Fair Admissions, Inc. v. President and Fellows of Harvard College.

(2023, June 29). Supreme Court of the United States. https://www.supremecourt.gov/opinions/22pdf/20-1199_hgdj.pdf.

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