The End of Affirmative Action

By Dr. Robert Chao Romero

As a lawyer and historian, I have taught about the legal history of affirmative action at UCLA for nearly two decades. The Supreme Court opinion drastically departs from more than four decades of its own legal precedent, and represents a political and philosophical pre-commitment to colorblindness in search of a legal theory. Any 19 year old undergrad who took my class this past quarter could tell you the same.

The decision is based upon several political and philosophical pre-commitments, rather than Supreme Court precedent itself:

1. U.S. society is fundamentally equal for all now, regardless of racial background. The educational playing field is equal, and so there is no compelling need for tools such as affirmative action.

2. Ethnic diversity offers little value-added to the learning experience of university students. The experiences and perspectives of students of Color in the U.S. are basically the same as every other student of any other racial background. To say the opposite is to traffic in stereotypes. A diverse classroom and university does not prepare all students in a vital way, for the increasingly diverse present and future workforce in the U.S. and the globe.

3. Because racism in no longer a significant issue in the U.S., our country has no moral obligation to utilize tools such as affirmative action to level the professional or educational playing field.

In Grutter and Gratz v. Bollinger (2003) and Fisher v. Texas (2012), SCOTUS reaffirmed Justice Powell’s legal reasoning in the Bakke case (1978) and held that universities could consider race as one limited factor in admissions in order to further the compelling interest of educational diversity. According to mounds of social scientific data, when you have a diverse classroom students learn better because they are exposed to different experiences and perspectives of students from varied backgrounds. Moreover, based upon the testimony of big business and the military alike, diverse learning experiences better prepare students for a diverse global and national workforce. In order to further this compelling interest in educational diversity, well established Supreme Court precedent held that colleges and universities were permitted to take race into account as a “plus” factor, though not as a “decisive” factor in admissions. All students should be reviewed together, regardless of race or ethnicity and treated as individuals in the process (as opposed to just their race); and quotas are never constitutional. Recent legal debate tended to revolve around whether colleges and universities should be required to pursue the compelling interest of diversity first using “race neutral” means (such as accepting the top 10% of every public high school graduating class), before turning to the explicit consideration of race/ethnicity as one factor. I expected the ruling to affirm the compelling interest of diversity while requiring that race neutral means first be applied before race was directly taken into account as one limited factor among many.

In ruling to essentially overturn affirmative, SCOTUS (along directly partisan and mostly racial lines), drastically reversed decades of its own legal precedent. It also did so in a way that is viciously overbroad.

First, SCOTUS essentially banned affirmative action for both public and private university systems. All prior major rulings centered upon public universities because the Equal Protection Clause of the 14th Amendment (the central legal issue in contention) only applies to “state action”—i.e., laws or policies implemented by local, state, or federal governments. SCOTUS very easily could have limited its ruling consistent with its own prior train of courses, but instead the conservative majority felt so offended by the concept of affirmative action that it decided to go after both private and public universities using an expanded legal theory. What about the conservative rallying cry about the limited hand of government?

Second, as previously discussed, SCOTUS could have taken the approach of eliminating the explicit consideration of race in university admissions decisions under certain circumstances, while still upholding the well-established legal principle of diversity as a compelling interest. Instead, the majority went after affirmative action in terms of both diversity as a compelling interest and what constitutes a narrowly tailored affirmative action plan. With respect to diversity, it basically said that, while “commendable” (note, not “compelling”), the benefits of such diversity are not easily measurable (inconsistent with decades of its own rulings to the contrary).

It is also important to note that affirmative action has been opposed ever since its inception in the late 1960’s/early 1970’s based upon many of the same philosophical arguments that are used today—i.e., affirmative action is wrong because it requires reverse racism against whites. As a twist of reasoning, opponents of affirmative action today say things like, “In the civil rights era affirmative action was important because racism was alive and well. MLK had it right. But today, such racism is not a major issue, and therefore unnecessary.” This is disingenuous because many of those who opposed affirmative action in its beginnings still do so today—on the same grounds. In addition, one of the primary historical beneficiaries of affirmative action in educational admissions have been White women. I have nothing against White women, but it is ironic that some of the most outspoken opponents of affirmative action have been White women. Their strong opposition is akin to someone using the tool of affirmative action in order to open up the door of inclusion for themselves, but then closing the door behind them.

I also deeply resent SCOTUS’ decision because it race baits Asian Americans against Latinos, Blacks, and other ethnic minorities. This is despicable because it is a divide and conquer strategy by White opponents of affirmative action who have spearheaded the demise of affirmative action. Moreover, this ruling could have an impact far beyond the educational sector because affirmative action also has to do with racial and gender discrimination in employment and government contracts. This decision could also make it harder for women and minorities—including Asian Americans like myself—to combat discrimination in the workplace.

In conclusion, affirmative has never been a perfect tool to level the playing field of educational diversity. But it has made an important impact for thousands such as myself who otherwise were overlooked and not given a fair chance. In 2023, racial circumstances in the U.S. are certainly different from the 19760’s, 70’s and 80’s, and for that reason it would have been understandable to update it. But instead of revision and update, a largely white majority, based upon explicitly partisan political lines, took it upon itself to throw the baby out with the bathwater and speak definitively upon current racial realities that are far from its first-hand experience. In doing so they unwittingly make the case for affirmative action itself—we all have blindspots, and that is why diversity is critical to expand our individual and corporate understandings beyond our own limited cultural perspectives. Fortunately the Bible takes a high and solemn view of the importance of cultural diversity, but that is a topic for another occasion.

I am deeply saddened. I will be for a long time to come.

This article is republished from Robert Chao Romero’s Blog.

Photo by Ian Hutchinson on Unsplash

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Rev. Dr. Robert Chao Romero is "Asian-Latino," and has been a professor of Chicana/o Studies and Asian American Studies at UCLA since 2005.  He received his Ph.D. from UCLA in Latin American History and his Juris Doctor from U.C. Berkeley. Romero has published more than 30 academic books and articles on issues of race, immigration, history, education, and religion, and received the Latina/o Studies book award from the international Latin American Studies Association. His recent book, “Brown Church: Five Centuries of Latina/o Social Justice, Theology, and Identity (2020),” received the InterVarsity Press Readers’ Choice Award for best academic title.  Romero is a former Ford Foundation and U.C. President's Postdoctoral Fellow, as well as a recipient of the Louisville Institute's Sabbatical Grant for Researchers.  Robert is also an ordained minister and community organizer.

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