In December, the US Supreme Court reheard oral arguments
in an affirmative action case called Fisher v. University of Texas.
The highly anticipated case could have a far-reaching impact on the ability of US universities to consider race in admissions as part of their efforts to create a diverse campus.
Indeed, proponents of affirmative action cite diversity as one of its main goals.
However, one prominent higher education expert thinks conversations about diversity distract people from the original goal of affirmative action: reparative justice for people who have traditionally been oppressed.
“Because affirmative action now rests on the diversity rationale, people who embrace affirmative action have to make all sorts of claims for diversity,” Harvard law professor Randall Kennedy said at a New York University-sponsored event focused on race-based admissions at colleges.
“Some of the claims that are made in favour of diversity are very questionable,” he continued.
He uses a college astronomy class as an example. “If you’re in astronomy class, does coming from a certain place with a certain background really help out that much?” he asked. “Either there is a planet up there beyond the solar system, or not. That’s a fair point,” he said.
Kennedy is making a point about the evolution of affirmative action policy.
The concept of affirmative action dates back to the American civil-rights movement of the 1960s. Seeking to expand opportunities for minorities, then-President John F. Kennedy issued an executive order in 1961 that established the Equal Employment Opportunity Commission and used the term “affirmative action.”
The Supreme Court first heard arguments on affirmative action at US colleges in the 1978 case
Regents of the University of California v. Bakke, which upheld the policy, as long as explicit racial quotas weren’t used.
The court gave deeper insight into its opinions on affirmative action in the 2003 decision Grutter v. Bollinger, which affirmed that use of race in admissions was acceptable as long as it was used to achieve diversity.
Justice Sandra Day O’Connor wrote the court doesn’t prohibit the use of race in admissions if its purpose is “obtaining the educational benefits that flow from a diverse student body.”
This was a departure from previous discussions of the aim of affirmative action to right historical wrongs, according to Kennedy, and a major misstep for affirmative action policies.
The “diversity rationale,” as he describes it, means that diversity must create some sort of benefit for the school system.
“Because diversity has been made to carry this heavy burden, the Supreme Court has engineered things in such a way that advocates are having to work overtime to come up with justifications that in some instances they cannot bear,” he said.
In his book “For Discrimination: Race, Affirmative Action, and the Law,” Kennedy elaborated on his argument that affirmative action is necessary to right past wrongs. Here’s more from his book, which Business Insider excerpted in 2013:
Racial minorities, and blacks in particular, have long suffered from racist mistreatment at the hands of the federal government, state governments, local governments, and private parties.
This oppression has produced a cycle of self-perpetuating problems that will not resolve themselves without interventions that go beyond prospective prohibitions on intentional racial mistreatment. Past wrongs have diminished the educational, financial, and other resources that marginalized groups can call upon, and have thus disadvantaged them in competition with whites.
Hence, it is not enough simply to end racist mistreatment. Reasonable efforts to rectify the negative legacy of past wrongs are also morally required.
As for Fisher v. Texas, the death of
Supreme Court Justice Antonin Scalia in February left a glimmer of hope for proponents of affirmative action. Scalia was one of the staunchest opponents of racial considerations in admissions on the bench. Now seven of the remaining justices — Elena Kagan has recused herself — will issue a decision in June.
Additional reporting by Erin Fuchs.
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