In the fall of 1977, the United States Supreme Court heard a landmark case by Allan P. Bakke and the University of California (UC). Bakke alleged
that he had wrongfully been denied admission to the UC medical school as a
result of the school’s affirmative action policies, which he believed violated
the equal protection clause of the fourteenth amendment to the US Constitution. The Supreme Court ruled in favour of UC, stating that the school’s affirmative action policies were not in violation of the U.S. Constitution. This ruling helped enshrine the practice of affirmative action into the U.S. framework, an approach that seeks to combat institutionalized biases pertaining to race and gender. However, forty-five years later and affirmative action still remains in place, despite its premise of being a tool to close the gap in inequality for minorities. In forty-five years it has failed to do this, and now the Supreme Court will hear cases against Harvard University and the University of North Carolina relating to affirmative action and its discriminatory nature. With a right titled Supreme Court now, it is believed we may witness the overruling of this powerful tool for equality. This article will address the foundations of affirmative action such as background justice theory and the validation of its presence within the United States and why it still remains necessary in achieving background justice and creating greater representation for minorities within the US.
From Rene Descartes’ earliest discourse on prejudice, there has been the
acknowledgement of biases in society and humanity’s inability to disregard our
individual differences; varying from matters as small as hair colour to
religion. From this, scholars have been able to formulate and derive a better
understanding of how this can affect society. Such scholars include John Rawls,
who lays the foundation for background justice, which seeks to observe how
justice is rarely achieved for those who are succumbed to biases. As a result
of Rawls’ conception of background justice, it has enabled more scholars to
further identify the societal problems that biases present and methods for
overcoming them.
Within his book A Theory of Justice, John Rawls seeks to address how,
despite our notions of acting justly, we must factor in what contributes to
helping us arrive at this idea of justice. Rawls highlights the
significance of prejudice within our society, most especially in institutions.
Rawls acknowledges that many of the prejudices experienced in society are
vested in institutions that we encounter and support daily and by way of this
we develop the need for background justice. Rawls states, “The natural
distribution [that being justice] is neither just nor unjust; nor is it unjust
that persons are born into society at some particular position. These are
simply natural facts. What is just and unjust is the way that institutions deal
with these facts.”[1] Identifying that naturally there will be differences in all of us, whether those are physical, social or psychological, the real problem to identify is that institutions knowingly are observant of these differences and may establish prejudice. However, as we just established, these institutions prove to be some of the most vital within our society, such as financial markets, federal or state laws, and other institutions. Institutions hold a significant presence within our society. I refer now to Joseph Barndt, an American Lutheran and anti-racism author who states in his book, Dismantling Racism: The
Continuing Challenge to White America, “a society is composed of a great
number of institutions. They may be either private or public, but all are
interconnected through their common task of helping the society to function.”[2] It’s impossible to ignore the relevance of institutions to our society, they provide a valuable framework towards guidance and adherence to standardised customs. However, within this many have ignored how a majority of these customs prove to be discriminatory or biased. Institutions formulate and find foundation through custom; therefore, it is not uncommon to find prejudice rooted in these institutions. Overcoming these prejudices once rooted can prove to be a great task.
While not many of those who are part of these institutions hold observant
prejudices to different demographics like people of colour (POC), women etc.,
many are products of these institutions and have inherited the customs of
prejudice now seen as the norm. Joseph Brandt elaborates on this, as he states.
“The walls that surround us, confining us within and oppressing others
without, are improperly and unjustly functioning institutions and systems of
the white society. These are the forces that make us, as individuals, into
racists. They are the forces that transform individual prejudice into corporate
racist action”[3]
Here Brandt expresses how an individual’s inherited biases have come
together to build the foundations of institutionalised discrimination; he further
states, “our personal bigotry and prejudice do not cause the primary damage.
Rather, the damage is done by racism that has been institutionally empowered
and is administered in seemingly impersonal ways.”[4] The damage implemented by institutions is the true detriment to our society. It is
negligent to believe that the inequalities and disparities that we encounter in
our social prism comes solely by way of individual biases or prejudices; in
fact, they arise through rooted partisanship in the pillars of our society such
as financial markets, healthcare, government, education etc. How does one
individual or one demographic counter the system that they are a part of?
The route of affirmative action adopted by UC is one best illustrated by American philosopher James Rachels who specialized in ethics. He encapsulates the practice of affirmative action in his publication, What People Deserve and his chapter “Reverse Discrimination.” Rachels describes reverse discrimination as a method of generating equity and representation as “it reverses past patterns so that those who have been discriminated against are now given preferential treatment.”[5] Rachels presents the argument through a structured analogy of a Black student and a white student who are both seeking admittance to a law school, where the white student’s score is slightly higher than that of the Black student, yet the Black student is given preferential admission as their circumstances of being a minority tend to pose greater challenges.
As a black man, I use to always fear addressing the visible discrimination,
these practices present, however, I learnt; many institutions understand that
while there may be laws in place to deter discrimination, many still hold these
prejudices, which can affect equity and representation. These prejudices are
built into the system, and the law is not enough to combat these inherent
biases. Further actions are required to level the playing field for minorities
in efforts to establish background justice and enable a fairer representation
of minorities. It is the duty of these institutions to facilitate the means for
equitable standards. By accounting for the advantages that white students in
America have historically inherited, institutions like UC sought to now present
students of colour these advantages to close the gap in representation and
create a level playing field.
However, there are objections to the framework of affirmative action, the
primary one being it knowingly discriminates against individuals. For
affirmative action to achieve background justice for women and people of
colour, it is inevitable that we must discriminate against white men. But if
this discrimination provides equitable standards and opens up opportunities
that women and people of colour have been deprived of as a result of
discrimination is this a bad thing? The primary objective of institutions
wasn’t to support and perpetuate societal biases; however, by way of
nature, they became instrumental roles. Therefore to create a level playing
field and build more representation, we must re-introduce discrimination to
favour those who have been excluded. Iris Marion Young does a more than
adequate job of identifying this in her work Justice and the Politics of
Difference as she highlights the need of finding background justice for
oppressed groups of difference like women and people of colour. She states;
“Discrimination in this sense may or may not be wrong, depending on its
purpose. An all-male club of city officials and business people is wrong, for
example, because it reinforces and augments networks of privilege among men
that exist even in its absence. It is not wrong to found an all-women’s
professional association, on the other hand, to counteract the isolation and
strains that many professional women experience as a result of being less than
welcome minorities in their fields.”[6]
If the discrimination in hand seeks to rectify the past and current
injustices of oppressed groups, then one must understand the validity of its
purpose.
However, as we already know, discrimination within the US is ingrained into
societal practices since its founding, dating as far back as the three-fifths
compromise. Hence why the Supreme Court understood the importance of
establishing a method for background Justice. Through affirmative action, they
believed that they would see more representation of minorities within America.
It is safe to say, at that period, the US was in a place where there was much
growth needed in dismantling institutional racism. Many in America had become aware of these institutionalized biases and were working to overcome them.
In 1933, the US federal government established the Home Owners’ Loan Corporation (HOLC) to spur confidence back within the housing market following the Great Depression. The purpose of this initiative was to purchase existing mortgages to rescue households that were about to default. They created a scheme in which middle-class working families could make low-interest regular payments to the government as opposed to the bank to help purchase homes.[7] Within this initiative, there is assumed risk, and to calculate this risk, the US government used some unsavoury methods that would help further establish institutionalized discrimination. The HOLC used racial composition as part of its assessment. American writer Richard Rothstein in his book, The Color of Law: A Forgotten History of How Our Government Segregated America states,
“The HOLC created colour-coded maps of every metropolitan area in the
nation, with the safest neighbourhoods coloured green and the riskiest coloured red. A neighbourhood earned a red colour if African Americans lived in it, even if it was a solid middle-class neighbourhood of single-family homes.”[8]
This initiative helped strengthen the presence of segregation within the U.S.
through the redlining of neighbourhoods, school districts, healthcare,
financial markets and other places. Black communities were separated from white communities which would drastically widen the gap in their socioeconomic status. Redlining practices made it near impossible for Black families to move to the suburbs where there were better-funded schools and public infrastructure.
Many have argued over the use of affirmative action in a similar manner as
Mr Bakke, that the policies adopted discriminates against white students. In 2003 Barbara Grutter presented the same argument in Grutter v Bollinger to
the Supreme Court as she believed the University of Michigan (UM) unjustly
discriminated against her. The Supreme Court ruled in favour of UM, believing
their policies were justified in seeking to achieve representation. Justice
Sandra Day O’Connor stated,
“Race-conscious admissions policies must be limited in time. The Court
takes the Law School at its word that it would like nothing better than to find
a race-neutral admissions formula and will terminate its use of racial
preferences as soon as practicable. The Court expects that 25 years from now,
the use of racial preferences will no longer be necessary to further the
interest approved today”[9]
While many like Justice O’Connor believed that policies like affirmative
action would become redundant in the future, top universities in the US still
believe its presence is necessary. Currently in the U.S. Black and Hispanic
people are heavily underrepresented in many aspects. Studies show that despite better access to education and the increase of different ethnic groups in the US, there is very little growth in the professional field. Pew Research Centre state, “Blacks and Hispanics are underrepresented in STEM occupations relative to their share in the U.S. workforce. The share of Blacks working in STEM jobs has gone from 7% in 1990 to 9% today And that for Hispanics has gone up from 4% to 7%.” In over 30 years there has only been a slight increase between 2-3% of Black and Hispanic professionals. There is still a fight in working to create representation and close the gap in socioeconomic status between different demographics. Affirmative action seeks to do this, and its presence in the US is not any less relevant since the first Supreme Court Decision.
Affirmative action does not only extend to education, even within professional workforces, politics and many other fields. Affirmative action would seek to diversify and create more representation for minorities to further close gaps in our society. Currently, in the US, political parity for women is severely undermined. Saskia Brechenmacher of Carnegie Endowment of International Peace elaborates on this point as she states, “Women currently hold 19.3 per cent of seats in the House of Representatives and 21.0 per cent in the Senate. Over the past decade, these percentages have barely increased. At the current rate of progress, women will not achieve full legislative parity in the U.S. Congress for another hundred years.” Furthermore of the current legislative house in the US, only 23 per cent of the house are racial or ethnic minorities. Despite minorities making up 42.2% of the US population. Political parties prove to be one of the most influential institutions within America, including affirmative action within the composition of their nominees would see more representation of minorities in the political sphere.
While it has been forty-five years since Regents of the University of California v Bakke, studies have shown that affirmative action still remains paramount in our fight for a more egalitarian society. Women and POC remain integral parts of society, however, they face many barriers to becoming equals within our society, therefore we must readjust our expectations and favour them justly in order to achieve parity. By way of human nature and negligence, we have enabled a culture of prejudice and biases that breed oppression within the frameworks of society. The institutions in which every member of society confides in, such as financial markets, healthcare, government, education and etc, have become accustomed to rejecting the background justice of groups of difference. This engrained injustice can therefore only be rectifiable by a hands-on authority, one that seeks to restore equitable standards and level the playing field. Affirmative action has presented itself as a valuable contender, therefore, the US supreme court should see to its continued presence across the US.
1] John Rawls, A Theory of Justice (Belknap Press of Harvard Univ. Press, 2003)
[2] Joseph Barndt, Dismantling Racism: The Continuing Challenge to White America (Minneapolis, MN: Augsburg, 1991),
[3] Joseph Barndt, Dismantling Racism: The Continuing Challenge to White America (Minneapolis, MN: Augsburg, 1991)
[4] Joseph Barndt, Dismantling Racism: The Continuing Challenge to White America (Minneapolis, MN: Augsburg, 1991),
[5] Rachels, James. “Reverse Discrimination”. In Morality and Moral Controversies, 10th ed., 869-871. Routledge, 2019.
[6] Iris Marion Young, and Danielle S. Allen, Justice and the Politics of Difference
(Princeton and Oxford: Princeton University Press, 2022), 197.
[7] Richard Rothstein, The Color of Law: A Forgotten History of How Our Government Segregated America (Liveright Publishing Corporation, a division of W.W. Norton & Company, 2018)
[8] Richard Rothstein, The Color of Law: A Forgotten History of How Our Government Segregated America (Liveright Publishing Corporation, a division of W.W. Norton & Company, 2018)
[9] “Grutter v. Bollinger,” Legal Information Institute (Cornell Law School, June 23, 2003), https://www.law.cornell.edu/supct/html/02-241.ZS.html.