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Affirmative Action under Attack Again, Based on the Same Old Bogus Nonsense

With the Supreme Court set to hear yet another attack on affirmative action when it convenes later this year, we look at what these programs mean and why we defend them in the interest of working-class and democratic rights.

Jessica Prozinski

February 25, 2022
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April 14, 1978: Students at the University of Wisconsin–Madison march in protest over the U.S. Supreme Court case Regents of the University of California v. Bakke
Image: Leslie Ringold

On January 24, the Supreme Court agreed to hear a lawsuit orchestrated by professional right-wing litigant Edward Blum against affirmative action programs at Harvard University and the University of North Carolina. The case will likely be heard during the Supreme Court’s next term, which begins in October, with a decision in 2023.

Access to public education has long been a bellwether for how democratic our “democracy” really is. From the beginning of the founding of this country, there was a fight in the United States to establish public schools. Later, that fight shifted to stopping the tendency of private schools to separate students on the basis of class and drain resources from public schools. Children of different social classes and races attending school together has long been seen as key to achieving a more equal society.

Integration and access to public education have been linked from the start. The Southern states didn’t even have a public education system until after the Civil War, when during Reconstruction the first taxpayer-funded system of public schools in the old Confederacy was created,

The attack on affirmative action is one front in the general attack on public education. The right wing would like to resegregate higher education, stop any new attempts to integrate schools for younger children, and turn public education into a privatized, profit-making enterprise to further enrich the capitalists at the expense of the majority.

Edward Blum’s specialty is sniffing out racist white people who blame their failures on “not enough white privilege.” He then connects them with right-wing donors, who fund lawsuits against affirmative action and voting rights. 

Remember Shelby County v. Holder — the 2013 Supreme Court decision that gutted voting rights protections that had been in place since 1965? Edward Blum initiated it. This Supreme Court decision gave the green light to the attacks on voting rights we see today in Georgia, Texas, North Carolina, and across the country. 

Now Blum and his wealthy right-wing financiers are gunning for affirmative action.

What is Affirmative Action? 

“Affirmative action” refers to a range of policies that attempt to combat racist and sexist disparities in U.S. society. It typically manifests in the form of deliberate policies related to college admissions or workplace hiring and promotions that take the underrepresentation of POC or women into account when making decisions. 

Even with affirmative action in college admissions, the percentage of U.S. high school seniors who go on to college the next year differs dramatically by race: 89.9 percent of white students compared with 66.9 percent of Asian Americans, 63.4 percent of Latinx students, and only 50.7 percent of Black students.

Affirmative action programs remain essential for opening the doors to male-dominated professions to everyone. Continued sexist economic disparity, and the need to redress it, is reflected in the fact that women still only make 82 cents for every dollar a man makes. 

The Harvard affirmative action programs are also referred to as “race-conscious admissions.” This is a helpful term for understanding what the programs are, and the attack on them. Racism is irrefutably a factor that unfairly diminishes opportunities for people of color (POC). Pretending this is not the case is to be part of the problem.

A shocking 43 percent of white students accepted to Harvard are “legacy admissions” whose parents went there, have parents who donated to the school (euphemistically referred to as the “Dean’s List”), are the children of faculty, or are recruited as athletes. Where are the outrage and lawsuits about this?

Affirmative action programs are a progressive — albeit insufficient — response to part of the chasm of inequality in the United States. But while they don’t go nearly far enough, it is still necessary to defend these programs from the racists leading the attacks.

History of Affirmative Action

Affirmative action has been around for more than 50 years, with the first programs launched under President John F. Kennedy.

These policies were essentially concessions by the ruling class to the civil rights movement and the urban rebellions of the 1960s. When the smoke cleared in Los Angeles and Detroit, the capitalists began to see the benefits they could accrue by cracking open the door to elite universities and professions. Affirmative action, and concessions toward equality in general, can help tame popular anger. It can also help maintain “social stability,” which is the name of the game upon which the tiny fraction of Americans who currently hold the vast majority of wealth and power depend.

In 1973, Allan Bakke sued the sued the University of California at Davis for “reverse discrimination.” Why else would a 32-year-old white man not get into med school? The UC Davis Medical School had reserved a paltry 16 out of 100 places in the first-year class for people of color. Imagine learning this and concluding that “they” took “my” spot! This is truly a mindset that speaks to white and male privilege. 

Bakke’s lawsuit spurred a mass protest movement of students, labor, and civil rights organizations.The protests spread far beyond UC Davis to other universities in California and across the country. The Black Law Students Association organized a march of 1,600 students in Washington, DC, from the White House to the U.S. Capitol building. Students at the University of Wisconsin–Madison marched under the banner, “Defend Affirmative Action, Defeat Bakke!”

In California, the movement  was organized on a state-wide level and went beyond trying to defeat Bakke’s racist lawsuit. The California activists demanded proportional representation in admissions and hiring and for the University to accept a co-counsel representing the movement. The movement had zero faith in the University’s ability to take a strong stand for its own anti-racist programs.

The Supreme Court heard Bakke’s case, issuing a ruling in 1978. The decision upheld the constitutionality of affirmative action programs, but made them weaker by outlawing “quotas” — explicit numbers or percentages of students of color or women who must be admitted.

The court also ruled that Bakke be admitted to the med school. 

In the early 2000s, affirmative action again came under direct attack, this time by the Koch Brothers-funded “Center For Individual Rights,” which recruited aggrieved white students rejected from the University of Michigan Law School and undergraduate school. 

Again, students and other activists mobilized. The Coalition to Defend Affirmative Action and Integration and Fight for Equality By Any Means Necessary (BAMN) was formed in California and at the University of Michigan. The activists successfully “intervened” in the lawsuit, which allowed for a lawyer speaking in the name of the movement to argue before the Supreme Court alongside the university’s lawyers. Several thousand marched in Washington, DC, on the day the Supreme Court heard the case. The NAACP, National Organization for Women, United Auto Workers, United Food and Commercial Workers Union, the Union of Needletrades, Industrial and Textile Employees, the League of United Latin American Citizens, and the National Black Law Students Association all endorsed the march and had members in the streets.

The resulting 2003 Supreme Court decision in Grutter v. Bollinger again upheld affirmative action in college admissions, while weakening it yet again.

Edward Blum tried and failed to overturn the Grutter decision in 2013 in a lawsuit against the University of Texas at Austin. Three years later, Associate Justice Ruth Bader Ginsburg told the New York Times in an interview that she thought that affirmative action had been settled once and for all: “I don’t expect that we’re going to see another affirmative action case, at least in education.”

But now, with the most reactionary Supreme Court we’ve seen in decades, Blum is leading another charge against affirmative action. 

Repression or Co-optation? — A Capitalist “Family Feud” 

Within the ruling class, there are two major schools of thought about how best to maintain its minority rule. While who ascribes to which school fluctuates from time to time, the carrot-and-stick approach generally explains what we experience.

The right wing of the capitalists typically advocate the tried-and-true method of super-exploitation of racial minorities and women. They are generally more willing to using race and sex inequality openly to squeeze a little more profit out of the working class. This wing of the ruling class specializes in fanning social divisions as a way to divide and conquer workers and the most marginalized in society. If we’re fighting each other, we aren’t fighting them. 

The “liberal” wing of the capitalists tend to favor the carrot over the stick. By cracking open the door to a small number of POC and women to join them in enjoying a tiny taste of their spoils, they hope to tamp down the social explosions that come from the outrageous inequalities of capitalism. The lucky few who are allowed to climb the ladder are expected to use their privilege to preach the fairness of the system, advocate for gradual, peaceful reform, and mislead and chill out social movements — and, more often than not, help lead them into the Democratic Party, also known as the “graveyard of social movements.”

What both wings of the capitalist class do agree on is that post-secondary education is a commodity and a privilege, not a human right. both the liberal and conservative wings of the ruling class are deathly afraid of the masses getting the idea that our society should be providing free, integrated, high-quality education from pre-kindergarten through grad school. 

Why Fight to Defend Affirmative Action? 

What affirmative action we do have was won in struggle by workers and the oppressed, particularly people of color. These programs have meant important gains for people of color and for women. Without struggle, those gains would never have materialized. The ruling class was forced to grant these concessions. Opening up access to universities made American society more democratic, even if only slightly.

Defending affirmative action is crucial to building working-class unity. One of the central tasks of socialists in the United States is to fight for anti-racist policies within the organizations of the working class. One of the favorite strategies of the US ruling class is to manufacture and inflame racial divides. We reject these attempts at “divide and conquer.” The only way workers and all oppressed people can possibly win against the massive resources, organization, and inertia of the ruling class is for us to have maximum unity.

Our position as socialists must be to fight to defend all the steps towards equality won by the mass movements of the past, no matter how small. Even though reforms by their nature are partial, to stand on the sidelines, abstaining until we judge the struggle to be sufficiently “revolutionary,” is to abandon the struggle. 

Affirmative action is a partial redress to racism and sexism, and as the leading voices of the oppressed, we must be on the frontlines defending it. At the same time, we must not let our defense of affirmative action be limited only to speaking up for these modest programs. Within the context of defending affirmative action, we can make our full and radical arguments for why racism and sexism are endemic to capitalism, and how only a socialist society that puts human needs before profits offers the possibility of truly eradicating such backwardness. 

Universities Offer Weak, Pathetic Defense of Affirmative Action

One of the problems we have in defending affirmative action programs is that while people of color and women are the real targets of the attack, and have the most to lose, it’s mainly elite universities that are responsible for presenting the legal arguments in court to justify the programs. Routinely, they  offer weak, shame-faced defenses of affirmative action, not only before the bench but also in the court of public opinion.

Lawyers for Harvard argue, “Under established precedent, to achieve the educational benefits that flow from student-body diversity, universities may consider race as one factor among many in a full, individualized evaluation of each applicant’s background, experiences and potential contributions to campus life.”

North Carolina similarly cites “diversity” and Supreme Court precedent as its justification.

University administrations have no interest in talking about the full scope of racism, segregation, sexism, and inequality generally in our society. They are not trying to reshape the social order, or contribute to mass struggle breaking out. They have a narrow interest in controlling their own admissions processes and reputations, and their pathetic arguments reflect that narrow goal.

Half-truths will never suffice for the defense of affirmative action. We can’t hide behind the weak language of “diversity” while those suing to end affirmative action attempt to cloak themselves with the mantle of “ending racism.”

We have to call affirmative action what it is: a flawed, inadequate step in the right direction — that we defend. We must tell the plain truth about the inequality, racism, and sexism of American society — and the continued need for affirmative action to offset those ills. 

Down with the Undemocratic Supreme Court

Although when polled a majority of Americans support affirmative action, . that won’t keep the right-wing Supreme Court stacked with Trump appointees from striking these programs down, just like they are preparing to do, in effect, with Roe v. Wade.

The Supreme Court as an institution is profoundly undemocratic, even more so than the other two branches of corporate-funded bourgeois democracy in the US, which at least face elections at some point. It is a threadbare, political animal bursting at the seams with hacks and sexual predators. It is becoming pretty difficult for the ruling class to maintain the illusion that the Supreme Court is merely an impartial interpreter of the U.S. Constitution. 

We are not the only ones who see the increasingly open partisan decisions by the Supreme Court as a marker of illegitimacy. Even Associate Justice Stephen Breyer, soon retiring, shared a similar concern in a speech at Harvard Law School in April 2021: “If the public sees judges as politicians in robes, its confidence in the courts — and in the rule of law itself — can only diminish, diminishing the court’s power, including its power to act as a check on other branches.”

What’s Next? 

We have two jobs. One is to tell the plain truth about what affirmative action is, neither venerating it nor abandoning it. 

The other is to self-organize and take action in the streets to defend every partial step towards equality made by those who struggled before us, and take advantage of every opportunity to turn these necessary defensive fights that are forced upon us into new offensives for equality.

Just as we are fighting our hardest to defend Roe v. Wade, we must fight to defend affirmative action. This is our job as what Lenin called the “tribunes of the people”: we must “react to every manifestation of tyranny and oppression.”

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