In September of 2024, the California legislature officially passed Assembly Bill 1780, which prohibited private universities in the state from giving preferential treatment to the children of alumni or donors during the admissions process. The bill came shortly following the conclusion of Students for Fair Admissions (SFFA) v. Harvard, a Supreme Court case on affirmative action that overturned decades of precedent and divided the nation. Proponents of affirmative action stand by it as a way to improve educational equity, while opponents argue it discriminates against white and Asian American students in favor of underrepresented minorities. Examining the judiciary’s ruling, along with California’s reaction to it, provides insight on the evolution of affirmative action and the systemic inequities that necessitated it, as well as the reason affirmative action alone isn’t the ideal solution to addressing them.
Affirmative action, as it is known today in the context of college admissions, has deviated significantly from its original state. It was first introduced in 1961 when President John F. Kennedy issued Executive Order 10925 instructing government agencies to provide equal opportunity in employment for all qualified persons. In 1965, President Lyndon B. Johnson issued Executive Order 11246, expanding this mandate to all public and private organizations with a federal contract, which included educational institutions such as universities. These early forms of affirmative action were significant in that they were primarily aimed at equalizing employment opportunities, which in turn required equal access to education. They acknowledged that minorities faced longstanding historical barriers in both the educational and employment sectors. In addition to these executive orders, efforts to address such obstacles were codified in the Civil Rights Act of 1964.
After 1965, mainstream opposition to affirmative action addressed access to higher education, particularly in admissions to elite institutions and postgraduate professional programs. Throughout their legal history, attempts to mandate affirmative action have clashed with the Equal Protection Clause of the Fourteenth Amendment, from which the strict scrutiny standard is derived. This standard is applied by the judiciary to laws that infringe on fundamental rights such as the right to racial equality. To pass strict scrutiny, a law must serve a compelling government interest and be narrowly tailored to that interest in such a way that couldn’t be achieved through any other less inhibitory means. The first major case challenging affirmative action measures that was heard by the Supreme Court was 1978’s Regents of the University of California v. Bakke, in which Allan Bakke, a white man, was rejected twice from UC Davis’ medical school. At the time, the school openly enforced an admissions policy that reserved sixteen spots in a class of 100 for qualified individuals from underrepresented minority groups. The Court’s ultimate ruling prohibited the use of racial quotas like these in the admission process, but permitted the consideration of race in admissions, because they judged diversity within educational institutions’ student bodies to be a sufficiently compelling government interest. This ruling was upheld in 2003 with Grutter v. Bollinger, a case that involved similar circumstances surrounding Barbara Grutter’s rejection from the University of Michigan’s law school. The Court reasoned that since factors other than race were being considered during review of the applications, using race as a factor during admissions decisions was permissible.
However, the Supreme Court’s favorable position on affirmative action took a sharp turn in 2023 while hearing the case Students for Fair Admissions v. Harvard College, which was conjoined with a similar case against the University of North Carolina. The SFFA coalition sued Harvard College for discriminating against Asian American and white applicants in its admissions process. In their ruling, the Supreme Court found racial considerations in admissions to be unconstitutional. The two universities couldn’t measurably demonstrate a compelling interest, exhibited racial stereotyping with regard to their applicants, and couldn’t present a logical endpoint for affirmative action.
California’s passage of AB 1780 reflects a widely held sentiment that the historical barriers affirmative action tries to address are better seen through a socioeconomic lens than a racial one. The bill prohibits private universities in California from considering a student’s relation to a donor or an alumni of the institution when reviewing their application. Universities must prove their compliance with the bill by submitting an annual report to an independent review board.
Class-based affirmative action like this is often cited as a possible replacement for its race-based counterpart that incurs fewer Fourteenth Amendment challenges. It accounts for a key blind spot in race-based affirmative action: socioeconomic variation within racial groups. While race and wealth are heavily correlated, broad trends in their relationship can’t be generalized to all cases. For example, despite having the most severe intraracial wealth disparities of any racial group in the U.S., Asian Americans of any ethnicity usually aren’t considered underrepresented minorities that would benefit from affirmative action by universities. Class-based affirmative action in the form of scholarships and Pell Grants, or in the form of AB 1780, marks a tentative step forward for improving the fairness of college admissions.
On the other hand, purely class-based perspectives overlook the main idea that affirmative action was meant to address: Individuals face unique obstacles in education and the workplace that are primarily attributable to their race. When we discount race as a potential factor necessitating affirmative action to avoid political controversy, we dilute an important conversation about systemic racism that America is long overdue for.
So if looking at just race or class alone isn’t the answer, what is? For far too long, the American government has viewed the fight against racism through a lens of scarcity, as a search for a single solution with a neatly definable timeline, that achieves the most results with as few resources as possible. Justice Roberts’ majority opinion in Students for Fair Admissions v. Harvard College, which criticized the university for not providing a clear endpoint to using affirmative action in admissions, clearly demonstrates this perspective. But when we consider the sheer vastness of the outcome expected of affirmative action measures — untangling intertwined layers of hatred and separation older than the country itself — it’s clear how ludicrous an expectation of a quick and easy solution is. In setting an impossible standard for measures addressing racial inequality and using their inevitable failure to scrap them altogether, the Supreme Court has set up affirmative action to fail.
However, to say that affirmative action would’ve had the intended effect if only given a longer lifespan is also incorrect because a perfect, fix-all solution simply doesn’t exist. Affirmative action needs to be implemented alongside systemic reforms in the housing market, the primary and secondary education system, the healthcare system, and in innumerable other places where explicit and implicit biases disadvantage minority groups from reaching success. When John F. Kennedy first introduced affirmative action in 1961, he designated federal employment and public education as its starting point, but he did not dismiss the Herculean task ahead. It’s no coincidence that each subsequent year featured an outpouring of public mobilization and new reforms like the Equal Pay Act, the Civil Rights Act, and the Voting Rights Act, all of which supplemented affirmative action’s goal of getting minorities into positions previously unavailable to them. These new pieces of legislation weren’t just isolated instances of progressive reform. They furthered affirmative action’s goal of giving minorities access and exposure to financial independence, social mobility, and self-advocacy, or in other words, positions of power and belonging in society.
In this way, the Civil Rights Movement exemplified an idea the current Supreme Court refuses to acknowledge: Affirmative action is an essential component to combatting systemic racism, but it isn’t the entire solution. As Kartik Sameer Madiraju of NYU Law Review paraphrases from Chief Justice Warren’s opinion in Brown I, “equality should be measured not just by concrete factors such as buildings and curricula, but also by the subjective, qualitative impacts of segregation itself on public education.” While affirmative action isn’t the perfect fix, it’s an important starting point towards an American Dream for all.
Featured Image Source: Rawpixal
