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How Affirmative Action Falls Short
It has been fifty-six years since the passage of the Civil Rights Act of 1964, legislation that took aim at the systematic forms of legal segregation that had long dominated large segments of American life. It did not take an expert in implicit biases to see the corrupting influence that officially sanctioned racial segregation had on public life, nor did it take a subtle analysis to understand the importance of the Voting Rights Act of 1965 in undoing the exclusion of African-American citizens from their lawful place in society. The effects of these statutory reforms were lasting and profound.
The passage of these landmark statutes did not put an end to racial conflict simply because they ended explicit forms of discrimination. Indeed, one of the toughest issues to resolve was the proper regime for dealing with labor markets. The great mistake of the 1964 Civil Rights Act was to adopt an explicit colorblind standard for employment under Title VII, which had the effect of slowing down the introduction of affirmative action programs that might have led to more African-American employees in the workplace, especially in unionized firms.
Those affirmative action programs received belated judicial approval in United Steelworkers v. Weber (1979), in which Justice William Brennan held that Title VII “does not prohibit such race-conscious affirmative action plans.” In Weber, Justice Brennan upheld a program that set aside 50 percent of the in-plant craft-training places for black workers until they achieved parity to the percentage of black workers in the overall labor force within that community. That decision was the second major piece of Title VII’s employment law regime, following the 1971 decision in Griggs v. Duke Power, which had previously adopted a strict “business necessity” test to justify a disparate impact that any facially neutral test or business practice had on racial minorities. Weber enabled affirmative action programs, while Griggs blocked discrimination against protected minority groups.
A bit more than a week ago, the regents of the University of California voted unanimously to approve Janet Napolitano’s proposal that the UC system cease using the Scholastic Aptitude Test (SAT) and the ACT to help their admissions departments choose from among their applicants those most apt to profit from the instruction the universities in the system offer. This they did in the face of a UC Faculty Senate study confirming the utility of these standardized tests for that purpose and demonstrating that the poor showing of African-American and Hispanic high school students on these examinations had little, if anything, to do with test bias and much to do with poor high school preparation.
It has become fashionable in the world of higher education to advocate eliminating the requirement that prospective students take the Scholastic Aptitude Test (SAT) or the ACT and then submit their scores to the admissions offices of the colleges and universities to which they apply. Janet Napolitano, the President of the University of California (UC), has even proposed that at Berkeley, UCLA, and the other elite institutions in the California system such scores be ignored altogether.
It is with decidedly mixed emotions that I wade into a discussion of the high-profile case of Students for Fair Admissions v. Harvard, in which a large cohort of Asian American students has joined forces to challenge Harvard’s admissions process on the grounds that it discriminates against them.
