I spent this morning reading the oral arguments in the second round of Fisher v. Texas, the most recent Supreme Court case on affirmative action in admissions. It’s fascinating to see how the debate plays out, and how it picks up right where the debate in Grutter ended in 2003, with nothing fundamentally resolved.* One issue keeps frustrating me that I haven’t seen discussed in the secondary coverage. Several times the conversation turns to the claim made in the Grutter decision that affirmative action might only be needed for another 25 years. We’re halfway through that, the Justices note, and Scalia asks bluntly: “do you think all of this won’t be necessary in another 13 years?” But here’s the thing: affirmative action can’t make itself unnecessary.
Universities have very little control over the system that creates their applicant pool. Affirmative action will become unnecessary when there are no longer racial disparities in K-12 educational outcomes. Those disparate outcomes are in turn caused by a combination of problems within the K-12 system itself and all of other forms of discrimination and disadvantage faced disproportionately by minority students.
So why do we expect universities to make affirmative action unnecessary? Of course, there are things universities can and should do to fight racial inequality (individual scholars advocate for policies to combat racial inequality, education schools can reform curricula to try to improve K-12 teacher education, etc.). But the bigger problems can’t be solved inside the university. Even when affirmative action programs succeed at promoting diversity within the university, they won’t automatically fix anything outside it. The success of affirmative action at one stage of the life course can’t be judged by whether it makes itself unnecessary by solving problems at an earlier stage. And yet somehow the Court’s conservative justices expect universities to have an answer to questions like this one from Chief Justice Roberts:
Grutter said that we did not expect these sorts of programs to be around in 25 years and that was 12 years ago. Are we going to hit that deadline? Is this going to be done on – in your view – in 12 years?
What can the University of Texas say except the unfortunate truth that race must be a factor as long as racism is a factor? Roberts goes on to say that “look, this can’t go on forever.” But if there’s one thing the history of the US shows it’s that there is no inevitable trend towards racial progress. Racism in the US seems quite capable of going on forever.
* Ellen Berrey, Fiona Rose Greenland and I have written about affirmative action at Michigan, and the Gratz and Grutter cases in particular, in an article forthcoming in Theory & Society. Working paper version available here.