Final Blow to Affirmative Action?

Against the Current, No. 161, November/December 2012

Malik Miah

THE SUPREME COURT’S decision to take the case of Fisher v. University of Texas at Austin in its current term indicates that this Court may finally nail shut the concept of affirmative action. The case involves Abigail Fisher, who claims the only reason she was not admitted into her university of first choice was her white race.

The fact that race is only a very small consideration at the University of Texas system does not matter to her and her supporters. The university explained that many qualified students did not make the final cut for the limited number of slots that year. (Ms. Fisher attended and recently graduated from Louisiana State University.)

The University of Texas had gone out of its way to avoid a fight on affirmative action, setting up a system where the top 10% of students from each high school in the state would automatically gain admission to one of the state’s affiliated universities.

 “Top Ten” was a weaker policy than the system employed prior to the infamous 1978 Bakke case, when the Supreme Court ruled that using racial quotas in public higher education admissions was unconstitutional. It did not, however, explicitly reject affirmative action programs that mentioned race as one factor in deciding admissions. The University of Texas system until 1996 had an explicit racial preference system, based on its interpretation of the high court’s Bakke split ruling, to continue to expand opportunities to Blacks and Latinos in the state.

Because of the segregation and inequality of primary public education, particularly in urban areas, this approach allows more minorities admission to higher education than would likely be the case by test scores. Some 80% of admissions from the state are based on the 10% rule; the other 20% are based on various criteria including individual assessments, test scores, grades and other factors such as race.

In the most recent data, freshman who enrolled under the Top Ten program in 2011 were 26% Latino and six percent Black. Yet the state of Texas is 38% Latino and 12% Black.

The motivation for the lawsuit is clear: Fisher and her supporters claim that any use of race in admissions, and the openly stated goal of the University administration to reach a “critical mass of minority students” (diversity), is a violation of the Constitution. Their goal is to re-establish a system where working-class African Americans, Latinos and other disadvantaged youth are permanently denied equal opportunity in a system based on high costs (with fewer grants) and limited space.

Previous Rulings

In 2003, in the first challenge to the use of race in admissions using the Top Ten policy, the Supreme Court narrowly ruled 5-4 allowing it to stand. That decision in Grutter v Bollinger was taken by the university administration to mean that race could be used to increase diversity — arguing that diversity is a legitimate objective where society has sizable and growing Latino and other minority populations.

The far right rejects that concept entirely. Any discussion of the built-in advantages of historical racism and advantages for whites is simply dismissed as “race baiting” or reverse racism. Many go further, saying that “white guilt” is why president Obama won the 2008 election.

Clarence Thomas, the only African American on the Court, who benefited from affirmative action, sees such programs as a stigma. He goes out of his way to oppose any law or action that helps other minorities and women get the same opportunities he received.

The 2003 court minority declared its objective as soon as possible is to overturn that decision. Indeed, in June 2006 (in Parents v. Seattle and Meredith v. Jefferson), affirmative action suffered a setback when a bitterly divided court ruled by 5-4 that programs in Seattle and Louisville, Kentucky, which tried to maintain diversity in schools by considering race when assigning students to schools, were unconstitutional. (

Judge Thomas’s point has a certain logic. Since the end of legal segregation and second class citizenship for African Americans, the educated elite of the community have done quite well. They have moved to well-off neighborhoods, and became managers and even CEOs of Fortune 500 companies. This high end middle- and upper-class layer (which includes the first Black president) were beneficiaries of affirmative action but don’t need it for their children.

The problem is the deep class divisions in the Black population. A large majority of African Americans are working class and/or poor. Even within the working class Blacks are disproportionately at the lower end — not in the skilled trades. It’s why historic unemployment for African Americans is twice the level of official data.

The civil rights organizations’ leaderships that fought to end legal racism are mostly of the elite. They still stand up for civil rights, but identify more with those in the upper middle class who have made it. Their focus is not on those for whom Martin Luther King fought in 1968 with his “poor people’s camps” in Washington, DC. King was also supporting poorly paid striking sanitation workers in Memphis where he was assassinated.

(We see a similar class division today in South Africa. The vast majority of Blacks are economically worse off today than the last years of apartheid, while the leaders of the ruling African National Congress and others in the Black elite are doing very well. The recent miners’ strikes have exposed those divisions and privileges to the world.)

Affirmative Action Counteroffensive

One of the major victories won by the Civil Rights Revolution of the 1960s was the concept of affirmative action, to begin to remedy historic and present discrimination against African Americans (expanded later to all people of color and women). Based on the 14th Amendment of the U.S. Constitution under the “equal protection” provisions, the strongest affirmative action provisions were written under the Republican president Richard Nixon in 1969.

The concept is simple: due to structural racism and discrimination, affirmative steps must be taken by the government to give those discriminated against in all segments of society a foot up to make up for past denials.  Civil rights leaders made the simple analogy: Blacks were denied access to jobs, educational institutions and government positions because of the color of their skin. It was like starting a race 50 yards behind the white runners.

Initially the programs in higher education and in the private and public sector jobs involved actual quotas to end racial discrimination — requiring, for example, that a minimum of 10% of new skilled trades hires, or slots in a major university, must go to African Americans.

Even without hard quotas, supporters of affirmative action pushed for numerical goals or targets. This is what happened at United Airlines for mechanics and pilots in the 1970s. Suits were also filed against fire and police departments that hired on “legacy” and family connections.

The counteroffensive against the gains of the civil rights movement, including the issue of affirmative action, began immediately after the adoption of the Civil Rights Act in 1965. The far right saw full equality as a threat to the entrenched privileges and advantages that whites enjoyed under Jim Crow in the South and de facto segregation in the North.

White opponents claimed “reversed discrimination” and pretended to support a colorblind society where race is supposedly not a factor. African Americans have seen this game before. They reject this demagogy, knowing that race has always been a central issue of U.S. politics and history to the detriment of Blacks. The road to a true colorblind society is having full equality in deeds, not just words on paper.

The 1960s victories changed the dynamic so that African Americans, and by extension other minorities and women, could break out of the segregation box and achieve advances in all fields. Most needed doors to be open, using affirmative action programs, to “gain” equality with white men or even to show superior abilities.

Busing and Affirmative Action

Two issues took center stage in the 1970s as targets for this reactionary counter offensive: school busing to desegregate public education, and affirmative action programs across the public and private sector. It is not an accident that these two issues remain a focus of the far right. Education is a key to advancing in society. The attacks on teachers and their unions, and the push for charter schools and voucher education, are disguised ways of keeping down minorities without means.

Demonized as “forced busing,” for the most part today busing programs to integrate schools no longer exist. The campaign to crush teachers’ unions and privatize public education continues. The victorious Chicago teachers’ strike was the first significant defeat suffered by the opponents of urban quality education in years.

Working-class African Americans need government–backed programs more than ever today, in order to get the quality education and jobs that they must have to survive in a global economy.

The election of Barack Obama only encouraged the most reactionary conservatives to deal blows to civil rights laws and push back progress for working-class Blacks. The failure of Obama and his supporters to fight aggressively against these attacks, and to defend affirmative action and other civil rights gains, is one of the biggest failures of his presidency.

Diversity Issue

To be sure, in the long run the U.S. ruling class knows that a diverse wealthy elite is necessary for its own power and survival.  Most corporations recognize, as global businesses, that their workforces and leadership must be diverse. Many major companies have filed “friend of the court” briefs in support of the Texas policy.

But the far right knows that demagoguery about “reverse racism” is a way to win the votes of misguided white people who see race as the reason they don’t gain or succeed.

The new Texas case is now center stage of the legal battle. The movement needs to reclaim the meaning of King’s push for a genuine “colorblind” society: He understood that meant first achieving a quality education and Black empowerment. Malcolm X called it the right of self-determination.

The Supreme Court ruling is expected next spring 2013. No matter its decision, affirmative action and other anti-discrimination tools will remain essential for winning the battle to achieve full equality.

November/December 2012, ATC 161