Ethnic politics, public opinion forcing a second look at U.S. affirmative action

The U.S. Supreme Court has essentially said voters not judges should determine the future of civil rights-era affirmative action programs. News flash, Neil Macdonald writes, U.S. voters are doing just that.

Two recent Supreme Court decisions throw the ball to state legislatures

University of California-Berkeley students protest outside of the U.S. 9th Circuit Court of Appeals in 2012 during the first set of legal hearings seeking to overturn the 1996 voter-imposed ban on allowing racial, ethnic or gender preferences in public education, employment and contracting. (Associated Press)

Affirmative action was a feel-good term concocted to sell remedial social engineering in the civil rights era; today, it's dying, precisely because of what the euphemism was meant to obscure.

Put bluntly, the original idea of affirmative action was to correct two centuries of institutional discrimination against blacks by temporarily imposing some reverse discrimination against whites.

Given the black-and-white reality of this nation 50 years ago, there was probably no other practical solution.

But in modern America, the affirmative action of the '60s has led to some uncomfortable distortions, favouring a well-to-do minority student over a poor white, for example. Or setting one minority group over another.

That is what's happening right now in California, where there is a nasty racial fight going on that has nothing to do with racist white ranchers or vile old white basketball tycoons.

In fact, it doesn't have much to do with white voters at all. Because whites are no longer the majority in California. Hispanics are, albeit by a slight margin.

Hispanics are also sadly under-represented in the state's prestigious public university system (UCLA, UC Berkeley, etc.) As are black Californians.

That is often because they attend high schools in poorer neighbourhoods, where academic scores are lower.

The single largest ethnic group in the state university system, meanwhile, is Asian-Americans, particularly students of Chinese descent who are vastly over-represented in the university system there, given their tiny share of California's population.

The reason is awkward — it's most unfashionable to attribute any general characteristic to any ethnic group. But it's not even debatable: Asians achieve higher marks in school these days than any other ethnic group in America.

And California is one of the few states that has repudiated affirmative action — its voters prohibited consideration of race in state university admissions 18 years ago.

When the ban went into effect, Hispanic and black enrolment dropped sharply. Asian enrolment soared.

Enter the Supreme Court

Understandably enough, Hispanic and black voters in California now favour affirmative action, and want the ban revisited. They easily have the votes to overturn it.

Equally understandably, the Asian-American population is opposed.

A Democratic bill that would hold another California referendum on affirmative action, seeking to reinstate it, has trigged a powerful backlash where Asian legislators are clashing with black and Hispanic ones.

The state's governing Democratic party, in which minority groups are important constituencies, has been so shaken by the push-back it is now reconsidering the whole idea.

California, as usual, is simply ahead of the curve, though the U.S. Supreme Court is also taking note. 

The nation's demographics are changing rapidly. Since the '60s, a black middle class has arisen. Hispanics are now the fastest-growing demographic. Mixed-race students (such as Barack Obama, not so long ago) are much more common.

U.S. Supreme Court Justice Sonia Sotomayor, during a speech at Yale University in February. A product of affirmative action herself, Sotomayor grew up poor in the Bronx and wrote a lengthy and passionate dissent from last week's judgement. (Jessica Hill / Associated Press)

For all those reasons, the Supreme Court has been increasingly antagonistic to race-based admissions, a change from its earlier policy of upholding them.

"In a society in which those lines are becoming more blurred, the attempt to define race-based categories also raises serious questions of its own," wrote Justice Anthony Kennedy last week, as the court dealt affirmative action yet another setback.

"Government action that classifies individuals on the basis of race is inherently suspect, and carries the danger of perpetuating the very racial divisions the polity seeks to transcend."

The Asian American Legal Foundation argues exactly that: "At some universities, four out of five positions awarded to 'minorities' under affirmative action programs would otherwise have gone to Asian-American students," says its website.

Last week's Supreme Court decision, which followed years of litigation, affirmed that voters do indeed have the right to ban affirmative action.

"It is demeaning to the democratic process," wrote Justice Anthony Kennedy for the 6-2 majority, "to presume that voters are not capable of deciding an issue of this sensitivity on decent and rational grounds."

Make class the criteria

On the face of it, there is a serious flaw in that sort of thinking.

As the activist lawyer Joyce Schon put it to me, "It is not legitimate or fair to put a minority's civil rights and equality before the electorate for a vote. If that were the case, we'd still have slavery."

Schon flatly labeled the ruling racist — an attempt to return America to the Jim Crow laws of the segregated South.

One suspects, though, that the Supremes are keenly aware of the difference between constitutional democracy and majoritarianism.

What's more, the court is not saying nothing can be done about the huge social and economic inequalities that remain in America.

The way to do that, clearly, is to take socioeconomic status (or class or poverty, call it what you will) into consideration instead of race. In many cases, the result would be the same.

Automatic acceptance of the highest-scoring students from every high school would be one way of doing it. That would guarantee admittance to graduates from Latino and black neighbourhoods. A means test is less palatable, but would achieve the same end. 

Inevitably, that would mean  favouring, say, poor whites from Appalachia over black or Latino students from well-off families. Would that be wrong?

Americans, in fact, tell pollsters they favour corrective action. They still endorse affirmative action as a concept. It's when the policy is described as favouring any racial group over any other that people vote overwhelmingly to ban it.

Now, more such votes are probably inevitable in other states, especially after last week's ruling.

Affirmative action was always supposed to be a temporary measure. It implicitly involves violating the equal protection clause of the U.S. Constitution.

As Chief Justice John Roberts wrote in 2007: "The way to stop discrimination on the basis of race is to stop discriminating on the basis of race."

Activists like Joyce Schon regard that as trite conservative tautology that demeans minorities and can provide cover for racism.

Schon does make an excellent point, though, when she says the moneyed elite is determined to maintain its university privileges.

If race-based admissions are flawed, so-called "legacy admissions," which basically ensure Junior gets in if Daddy's an alumnus (and likely a donor) are even more so.

And just because someone can throw a football the length of a stadium is no reason to admit him to a sought after university spot if he can't put a sentence together.

About the Author

Neil Macdonald

Opinion Columnist

Neil Macdonald is an opinion columnist for CBC News, based in Ottawa. Prior to that he was the CBC's Washington correspondent for 12 years, and before that he spent five years reporting from the Middle East. He also had a previous career in newspapers, and speaks English and French fluently, and some Arabic.


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