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Affirmative Action Under Attack, Again

By Leigh Patel

US Supreme Court Building
Image credit: Mark Thomas

On January 24, the United States Supreme Court agreed to hear two cases that have upheld the use of affirmative action in college admissions. The cases, one filed against Harvard University and one against the University of North Carolina (UNC), have been organized financially and in media by Edward Blum, a legal strategist who has worked for years to lodge attacks against affirmative action. Although not a lawyer, Blum uses strategy of media and message and is also the president of Students for Fair Admissions, the organization that filed both lawsuits that will all be heard in the highest court in this land. What is affirmative action and what is at stake?

Affirmative action began in the 1960s, first under the federal administration of John F. Kennedy and through a policy at the University of Michigan to rectify the racial inequities of the university’s staff. Affirmative action has since become a way for universities to consider race, and sometimes racism, in its admissions decisions. It has been attacked consistently, with the Supreme Court maintaining its worth. The most recent cases have upheld affirmative action in lower courts; therefore, it is likely to assume that the Supreme Court’s willingness to review these cases implies a questioning, again, of affirmative action. Until now, the Supreme Court has upheld affirmative action’s power through slim margin votes, with the deciding vote cast by a moderate conservative out of the nine justices. There is no longer a moderate conservative justice on the Supreme Court.

Affirmative action faces its largest challenge since becoming a protected practice, not just in admissions but in addressing inequities in hiring, compensation, and even what research is funded and what books are read in schools. Affirmative action’s potential to demand a reckoning with racism as gatekeeping, such as college admissions, is already compromised by commonplace misunderstandings of its history and meaning. On January 30, during a weekly TV news panel, Republican Senator Lindsay Graham defined affirmative action as “picking somebody not as well qualified for past wrongs.” This patently incorrect and ahistorical definition was made in the context of the Senator’s support for one of several Black women likely considered by the president to fill Judge Breyer’s upcoming retirement from the court. With misconceptions like this on national media, the stakes for affirmative action are indeed high.

One of the most confusing aspects of the challenges to affirmative action is that, on the surface, the lawsuits and the seemingly benign-named Students for Fair Admissions seek to fight for equal admissions. Yet, the cases against Harvard and UNC share a common logic that has long been leveraged in the interest of protecting whiteness: pitting people who are not white against each other. In the recent cases, the allegation is that affirmative action discriminates against Asian Americans by requiring higher test scores from them, which allegedly benefits Black students who apply for admission. In an amicus brief filed by an education rights attorney and a scholar of higher education, Nicole Gon Ochi and OiYan Poon argue that UNC’s admissions policies do not, in any way, require higher scores from students of Asian ancestry. They also provide litigious proof that the lawsuit undermines the ability to ascertain the obstacles that many Asian and Asian Americans face through obstacles of racism and caste-like classism.

Pitting Asian and Black peoples against each other has its history in the model minority myth, the idea that Asians are, by culture or by ethnicity, harder workers, smarter, and come from more stable families. As historian Helen Wu carefully traces, this mythology is long and contorted but consistently works for two intertwined goals: casting Asian peoples as a monolithic perpetual foreigner and fanning the flames of anti-Black racism. It should come as no surprise that the model minority myth has reared its head in times of social movements that challenge anti-Black racism and white supremacy.

Whether one examines legal efforts to intervene on admissions practices that uphold white supremacy from these recent decisions or from a slightly more historied view of solidarity between Asian and Black peoples during the Civil Rights Movement of the 1960s, a few points are salient. First, the pitting of Asian and Black peoples against each other is entirely precedented, and two, the struggle for quality education for all continues.

The recent passing of legendary organizer and educator, Bob Moses, contextualizes these recent attempts to curdle efforts for equity and freedom. Moses married his passion for philosophy of mathematics with what he learned alongside Ella Baker about organizing for nothing less than freedom. Just months before he transitioned from his life, he wrote an essay arguing that returning to ‘normal’ from the pandemic would mean returning to a ‘sharecropper education,’ in which some are designated for certain kinds of lives and only afforded a serf-like education. Moses worked tirelessly for freedom for all, his last efforts focused on education as a constitutional right. In a panel discussion that both honored Moses’s impact and lifted up his ongoing legacy, Maisha Moses, Bob and Janet Moses’ daughter and Executive Director of the Young Peoples’ Project, noted that her father, having learned from his elders, showed throughout his life that people can create meaningful lives in the struggle for freedom.

Although affirmative action may seem to be in the crosshairs of a fatal blow at the hands of a deeply conservative Supreme Court, the struggle for freedom is as long, if not longer and larger, than any attempt to pit people of color against each other. Following Bob Moses’s example, in this moment when falsehoods and ahistoricity seem to be everywhere, we can and must create meaning in our lives through struggles for freedom.


About the Author 

Dr. Leigh Patel is an interdisciplinary researcher, an educator, a writer, and a professor at the University of Pittsburgh. She works extensively with societally marginalized youth and teacher activists. Patel is a recipient of the June Jordan Award for scholarly leadership and poetic bravery in social critique and is a national board member of Education for Liberation, a long-standing organization dedicated to transformative education for and by youth of color. She is the author of Youth Held at the BorderDecolonizing Educational Research, and No Study Without Struggle. Connect with her on Twitter at @lipatel.