Affirmative Action Is Probably Dead: Now What?

Affirmative action will likely meet its demise in the near future. As critical education scholars, people of color and signatories of powerful amicus briefs supporting race-based affirmative action in higher education, we hope we are proven wrong. Yet, the writing is on the wall. The cases against affirmative action at Harvard University and the University of North Carolina at Chapel Hill plus a conservative-led Supreme Court eager to undo progressive laws are a formula for the end of affirmative action. We are left with a clear conclusion and a question—affirmative action is dead. Now what?

Inspired by the foundational critical race theorist Derrick Bell, we ask 1) How should we understand this anti–affirmative action moment? and 2) What should we do about it?

Reflecting on Affirmative Action and Racial Progress

Our line of thinking here is inspired by Bell’s scholarship—especially his paper “Racism Is Here to Stay: Now What?” About his seemingly pessimistic title, Bell said, “far from an invitation to ultimate despair,” acknowledging that racism is here to stay “can serve as an opportunity for new insight, more effective planning.” We feel similarly about the demise of affirmative action. We need to start thinking differently about how to counteract the inevitability of setbacks in efforts toward racial justice.

Of course we need the briefs; we need the scathing op-eds. But, as we’re sure the authors and signatories well know, we need to remember that our arguments for affirmative action will not bend the reasoning of this Supreme Court. Bell, for example, urged activists to adopt a stance of “racial realism”—assuming that racism is a permanent feature of life in the United States. This stance compels us to think creatively and strategically about how to counteract the inevitability of setbacks in efforts toward racial justice.

In honor of Bell’s racial realism, we seek here to use the impending setback on affirmative action to think creatively about racial justice. In so doing, we intend to think differently than others who have usefully considered race-blind strategies that might maintain numbers of underrepresented students of color at four-year universities. Instead, we consider affirmative action for its lofty intentions and its profound inadequacies as a stand-alone policy for racial justice in education and beyond.

Affirmative action policies ought not to be viewed as ends in and of themselves. Early iterations of affirmative action were put forth by the U.S. government amid the civil rights movement and were couched in the racial justice language that typified the times. Speaking at Howard University, Lyndon Johnson opined that affirmative action was “the next and more profound stage of the battle for civil rights. We seek … not just equality as a right and a theory, but equality as a fact and as a result.”

We doubt that “just equality”—particularly with respect to race and ethnicity—can be achieved through college enrollment alone. Of course, representation matters. Facilitating access for more Black, Latinx, Native and underrepresented Asian students at colleges like Harvard and the University of North Carolina can change the lives of those students.

College degrees, however, are bestowed to persons, not communities. Affirmative action might expand access for the marginalized individuals who reap its rewards, but justice—the kind sought by leaders of the civil rights movement—also necessitates attention to marginalized communities and the deep historical inequities that constrain their opportunities.

Specifically, we turn to two communities who have long served marginalized youth and who would benefit from expanded support toward racial justice: public high schools and minority-serving institutions of higher education.

Bridging Racial Justice Practices With College Admissions

Some promising developments in high schools have potential to expand educational access and racial justice for marginalized communities. In states and school districts, ethnic studies is being implemented as a graduation requirement, mandating that all students consider race and racial justice as part of their high school curricula. The College Board has begun piloting an Advanced Placement African American studies course. Schools are implementing restorative justice practices, aiming to undo disciplinary disparities by race and ethnicity.

While these race-conscious curricula and policies are receiving staunch resistance in conservative states, universities committed to the ideals of racial justice might push back by requiring their applicants to think and act on issues of racial justice. Could racial equity be expanded by requiring all applicants to have taken an ethnic studies class or by requiring students to include in their application a statement on their commitments to racial justice? Though universities may soon be denied the ability to consider race in admissions, they can consider a commitment to racial justice as part of a holistic admissions process.

In addition, universities might partner with school districts serving students of color to expand the resources of those communities. For example, schools like Yale University, located in New Haven, Conn., and Stanford University, situated in the Bay Area of California, often have scant reach into their local urban schools and neighborhoods. These elite institutions might collaborate with high school students on projects seeking justice in their communities. Meanwhile, these students might be connected to resources on these campuses and offered support with the application process. Racial justice requires community uplift, and elite universities can play a more active role with high schools and their neighborhoods in serving communities of color.

Renewed Support for MSIs

Students of color who attend universities like Harvard, elite institutions with mammoth endowments, and other large public universities deserve equitable experiences and of course have much to bring into these spaces. Yet, more attention and funding should be directed to colleges that are leading the way in providing students with increased economic mobility and in supporting racially marginalized students.

Hispanic-serving institutions, for example, are among the most efficient at providing upward economic mobility to their students. Further, minority-serving institutions in general are often more welcoming environments for racially marginalized student populations. Yet, such institutions often receive less funding than their predominantly white counterparts. Historically Black colleges and universities, in particular, have been vastly underfunded at the state and federal levels.

In addition to advocating for increased funding for MSIs, and especially HBCUs, we might consider how as individuals we can support such institutions. For those invested in racial justice who do not work at or attend MSIs, one option is to direct your giving to an MSI. Certainly, such institutions need much more support from the federal and state levels, yet nothing is stopping graduates from other universities from donating to the colleges doing it right.

Education for Justice

Though universities may no longer be able to use affirmative action for minoritized individuals, there will remain room in any legal decision for colleges and universities to continue to serve racially minoritized communities. Colleges and universities seek to endow their students with the knowledge and skills to address the urgent social challenges of their generation. Racial injustice, indeed, remains among the most pervasive and persistent challenges of our time. If our higher education institutions are to be caretakers of democracy, considering race after the death of affirmative action ought to be central to their missions.

Derrick Bell’s words about affirmative action, in the year 2000, should serve as call to action: “Whereas affirmative action proponents should continue to strive to win in court, we must also view defeat as motivation for further individual and collective struggle, not as a signal to concede defeat.”

As such, we end this essay with a call to those who care about racial justice to struggle, to come up with creative ways to fight for a more racially just higher education, pre-emptively. Let us set the rules of engagement. Let those who oppose us—the conservative critics, the conservative wing of the Supreme Court and those beholden to white supremacy—let them catch up. What else can we dream up? Let us use new strategies until the court deems them unconstitutional and we start over again. Let us continue to struggle. Let us continue to resist.