You Decide

… that specific race- and gender-based preferences are discriminatory?

Few have a beef with the general concept of striving to hire minorities and women and to admit them into schools, but when it comes to the nuts and bolts of preferential selection of minorities and women, plenty have been crying foul for as long as these programs have been around. 

In an early dispute in the 1970s, white would-be medical student Allan Bakke sued the University of California for reverse discrimination after he applied to the UC-Davis medical school for two consecutive years and failed to get in. The medical school, he noted, set aside a portion of slots for minorities, and the minority students who filled those slots had lower test scores and grades than he did. His case went before the Supreme Court, which wound up striking down explicit quota programs, calling them discriminatory (yet upholding race as a factor in admissions, albeit one among many). 

Then in 2003, the Supreme Court ruled against point systems in admissions polices that gave 20 points to black, Latino and Native American undergraduate applicants at the University of Michigan, again finding the system discriminatory (but yet again allowing that race could be loosely considered in admissions).

Meanwhile, states have taken things into their own hands and changed laws on their own, reflecting the belief that affirmative action programs are, in effect, discrimination and should be repealed. In 1996, the California electorate passed Proposition 209, a ballot initiative that banned race and gender considerations in public education and state hiring. Voters have since passed similar initiatives in Washington, Nebraska and Michigan. (In the latter, the initiative was an end-run around the Supreme Court decision that allowed loose race and gender considerations.)

If across the country and in the Supreme Court race-based preferences are questioned and dismantled piecemeal, isn’t that reason enough to believe that they are, in fact, discriminatory?

… that the data show that the playing field is still far from level and that race and gender remain prominent “markers” in our society?

Study after study shows that our society is far from colorblind, post-racist and gender neutral. There are persistent gaps in income, pervasive discrimination in hiring and continued barriers to education for women and people of color.

Black and Latino children are more likely than white children to live in poor neighborhoods and attend resource-poor schools, more likely to lack health insurance, and more likely to end up in jail or prison. Although the black middle class has swelled and the median household income for black people has been on the rise for decades, in 2007, that income was still only 60 percent of the white median household income. Hispanic households lag at about 70 percent of the level of white households.

Because race and gender still fuel discrimination, being “successful” still isn’t any guarantee of a life and career untouched by bias. Sure, more women go to college now than 40 years ago, but studies show that young women 10 years out of college earn only about 70 percent of what their male counterparts earn. And this is the case more than three decades after the Equal Pay Act was supposed to outlaw pay disparity.

Affirmative action defenders say that in order to remedy these inequities we have to consider ways in which race and gender continue to matter. Accordingly, we have to continue to adjust the system. White males have benefited from discrimination against minorities and women for centuries: In the United States, blacks were chattel for 300 years while white people built this country with slave labor. And women couldn’t even vote in federal elections until 1920. The white patriarchy owes a massive debt to women and minorities, and affirmative action, including explicit preferences, is just one way to attempt to settle that debt.

UCLA law professor and scholar Kimberlé Crenshaw writes that it’s helpful to envision a race around a track — call it the equal opportunity race. If we know that the people in the outermost lanes are running a greater distance than the ones in the inner lanes, she says, doesn’t it make sense to stagger where they start?