Why the Supreme Court was right

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There is no gainsaying the fact that race-based affirmative action is an emotional subject in the U.S. It has been around at least since 1978 when, in a case called Regents of the University of California v. Bakke, the U.S. Supreme Court ruled that affirmative action was lawful. Since then, the apex court has ruled in 2003, and again in 2013 and 2016 that affirmative action is lawful.

However, on June 29, in what seems like a stunning volte face, the same high court, albeit one with a distinct conservative majority, appears to have shredded the notion of stare decisis and ruled that race-based affirmative action was unlawful.

Amitrajeet A. Batabyal

This decision is long overdue. To see why, it is helpful to first comprehend the purpose of race-based affirmative action. At the college level, the purpose of this kind of affirmative action is to ensure equal opportunity and to right the wrongs perpetrated by past racial discrimination in the U.S. including the abominable practice of slavery. It is directed primarily, but not exclusively, at African-American and Hispanic high school students seeking admission to elite colleges and universities.

This laudable purpose notwithstanding, to understand the high court’s decision, a key question we have to ask ourselves is whether race-based affirmative action, as practiced by colleges and universities today, is fair. There are two ways to look at fairness: fairness over time or dynamic fairness, and fairness at a point in time or static fairness.

Affirmative action is dynamically unfair because it implicitly assumes, for instance, that a white high school student today, no matter how poor, is somehow responsible for the discriminatory actions of his or her ancestors. In other words, there is intergenerational guilt and one must therefore atone for the sins of one’s ancestors. However, in our multicultural society, does it really make sense to hold responsible today, the descendants, often hundreds of years later, of past wrongdoers? Does this kind of officially sanctioned behavior not perpetuate a permanent class of victims and an “us versus them” mentality in society? Moreover, even if there is intergenerational guilt, how long does it last? To my knowledge, no supporter of affirmative action has ever provided a meaningful answer to this question.

Affirmative action is statically unfair because it attempts to correct one wrong by committing another. There is no question that African Americans, for instance, have been historically discriminated against and some continue to suffer from discrimination. But, how is this the fault of Asian Americans today? Asian Americans came to the U.S. in appreciable numbers only beginning in the 1960s when U.S. immigration laws were loosened to allow for expanded non-white immigration. Moreover, the ancestors of many of these Asian Americans were themselves colonized and discriminated against by the British in India and the French in Vietnam. So, the idea that an Asian American high school student today, whose ancestors were also subject to discrimination, is somehow responsible for past wrongs committed against African Americans is untenable. Yet, Asian American high school students pay the price for race-based affirmative action, as practiced today.

Instead of looking at the notion of disadvantage holistically, race-based affirmative action, as practiced today, puts blinkers on and looks at disadvantage only in terms of one dimension and that too a dimension that a high school student cannot control: his or her race. As a result, an economically disadvantaged white high school student from Appalachia who may be as or more disadvantaged than a middle-class African-American student along the income dimension would not benefit at all from race-based affirmative action because income or one’s class is irrelevant in the typical practice of affirmative action today. Therefore, it is hardly surprising to see that relatively wealthy African American students—who may well need no boost—are often the beneficiaries of contemporary, race-based affirmative action.

There is no doubt in my mind that disadvantaged kids in our country need affirmative action to get a leg up in society. That said, the concept of disadvantage must be holistic, arguably placing more weight on a person’s class and less weight—if any—on this person’s race. In addition, the first-best way of practicing affirmative action would be to act at the elementary school stage and not intervene, as we currently do in our second-best way, at the high school stage when, metaphorically speaking, most “student ships” have long left the harbor. These two steps would take us a considerable distance in our ongoing attempt to form a “more perfect Union.”

Amitrajeet A. Batabyal is a Distinguished Professor, the Arthur J. Gosnell professor of economics, and the interim head of the Sustainability Department, all at Rochester Institute of Technology, but these views are his own. The Beacon welcomes comments and letters from readers who adhere to our comment policy including use of their full, real name. Submissions to the Letters page should be sent to [email protected]

4 thoughts on “Why the Supreme Court was right

  1. This is an intellectually disingenuous opinion piece. It is simply false to assert that the policy of affirmative action implies that white people today are responsible for the sins of their ancestors. The policy was meant to grapple with the reality that as a nation we cannot outrun or ignore our history. The court’s view of affirmative action reads like a right-wing talking point. The majority asserted that a student being admitted to a university solely on the basis of their skin color is unfair. But no one is admitted “solely” on this basis. The comment “how is this the fault of today’s Asian Americans” reveals a deeply ahistorical perspective. No one is assigning fault here. No one is blaming anyone. No one today is responsible for past actions. But we continue to live in a social world shaped profoundly by those actions. Those actions had consequences. We can disagree as to how to best correct the negative impacts of those past actions. But to do so, we need to acknowledge them first. This column seems only to wave them away. A profoundly disappointing read.

  2. “Affirmative action is dynamically unfair because it implicitly assumes, for instance, that a white high school student today, no matter how poor, is somehow responsible for the discriminatory actions of his or her ancestors.”

    No where in prior decisions of the Court was it ever implied that White Folk are responsible for the racism of their ancestors. The purpose of affirmative action was to level the playing field. . .because let’s face it. . .being black in America (whether descended from slaves or free-born) triggers behavior from white folk. . .from decisions regarding zoning, law enforcement, and whom to pray with, to name a few.

    Slavery is the wound that hasn’t healed. . .overturning prior decisions supporting affirmative action does nothing towards healing this wound.

    I don’t know what Prof. Batabyal’s views are on reparation. . .but affirmative action is in essence a form of reparation; to at least bring about a rough measure of justice. . .not unlike granting Native Americans exclusive gaming licenses.

    “That said, the concept of disadvantage must be holistic, arguably placing more weight on a person’s class and less weight—if any—on this person’s race.”

    That was essentially the closing paragraph of the majority decision in Students v Harvard.

    Maybe that is the answer. . .time will tell

    • A we’ll reasoned response, however, as a Native American, I take exception to your characterization of Native American gaming as a form of affirmative action or reparations for past wrongs. The right for sovereign Native American tribes to regulate commerce on their own lands is embedded in the U.S. constitution, and gaming is an exercise of that right, that was not “granted to Native Americans,” (that statement itself being an excellent example of a common misconception that underscores the notion of NA’s being granted special privileges) thus, tribes are retaining an aboriginal right of self-government that pre-exists the formation of U.S. society.

  3. Kudos for articulating thoughts that many citizens have but are scared to articulate for fear of becoming social pariahs. However, I am not convinced that some high court members gave as much thought to the subject as the author in making their history-changing decision. Concepts such as fairness and opportunity are very subjective and are used by advocates on both sides of the debate to bolster their arguments. I expect that SCOTUS, as the creators of that body envisioned, would hold themselves above the mundane and decide to base their decisions on the settled law and legislators’ intent. Something this court has so often failed to do.

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