Since the Supreme Court’s Bakke decision in 1978, universities that practice affirmative action in admissions have premised their case on the educational benefits that accrue to all students from a diverse student body. This is the heart of the successful University of Michigan defense of affirmative action in the Supreme Court in 2003. What has been largely lost in this debate is any explicit effort to assert that there are fundamental reasons of social justice that should require American social institutions to practice some form of affirmative action. And yet those reasons are if anything more immediate, more fact-driven, and more compelling than the “indirect educational benefits” justification.
Three arguments based on social justice are particularly important. First is the history of slavery and racial discrimination in this country, a history that has persistent consequences up to the present day. Consider the premise that current educational and economic disadvantages for African Americans as a population derive chiefly from these historical facts about slavery and past discrimination — facts that are manifestly unjust. Is it not then apparent that justice requires concrete social actions and policies today that have the effect of reducing and eliminating current-day disadvantages that derive fairly obviously from past injustice? And given that those historical disadvantages create exactly the current educational deficits that make further educational progress more difficult, is it not clear that there need to be processes in universities to assist in increasing the percentage of African American students who have benefited from high-quality university education? This line of thought creates a positive obligation for current institutions to “affirmatively” work to overcome current inequalities created by past injustice. The tool of affirmative action is one such tool, and justice requires that it be used.
Second, the broad conception of equality of opportunity discussed in a prior posting has special relevance to the case for affirmative action. If various sub-populations in a society have less than full access to current opportunities because of substantial structural inequalities of access to critical resources in the past, then it is very convincing that society needs to find tools for leveling out these opportunities. Access to excellent higher education is fundamental to achieving decent life prospects. Again, affirmative action is such a tool and should be available.
Finally, these two arguments converge when we consider that the current educational disadvantages suffered by young African American students themselves derive from current social arrangements that are deeply discriminatory. The fact that current racial structures impose very different life prospects on different groups gives rise to a pressing non-historical reason for “affirmatively” addressing these inequalities. Unjust racial inequality of outcome is not simply a fact about the past; it is a fact about the present. The racism associated with the fact that inner-city (largely minority) schools are underfunded and substantially inferior to suburban (majority white) schools in providing educational opportunities to the children they serve, indicates a powerful basis for concluding that affirmative action programs need to be available as a tool. Affirmative action can help redress current injustice along racial lines.
So there are powerful reasons based in facts about historical injustice, equality of opportunity, and the injustice of the current distribution of educational resources, that all lead to the conclusion that affirmative action policies should be lawful and available to large social institutions, especially in education and employment. The fact that the terms of debate have been limited in such a way as to simply exclude these considerations of past and present racial injustice is itself an obstacle to our society’s successfully addressing these injustices.