Which of the following best describes the message of the political cartoon affirmative action

Higher education and unions have a similar problem when it comes to changing the demographics: we are dealing with a cake that cannot be unbaked. The undergraduate population turns over every four years, but the faculty turns over every forty years. When the new students arrive on campus, they often wonder where the professors of color are. The answer is: wait twenty years, and they will show up.

Even so, the lag in diversification between university faculties and their student bodies is striking. As late as 1969, less than five per cent of all professors had African or Asian ancestry, and around eighty per cent were men. Schools like Harvard and Stanford have had trouble even getting to gender balance. In 1976, women made up 1.6 per cent of the arts and sciences faculty at Yale and one per cent at Princeton, although both schools had been admitting women for seven years. Even at Berkeley, which had been admitting women since 1871, women made up just 5.6 per cent of the faculty. Today, less than thirty per cent of all university faculty at Stanford are women, and seven per cent are classified as underrepresented minorities. At Harvard, twenty-seven per cent of tenured faculty are women, and eight per cent are underrepresented minorities.

On the other hand, student bodies, where race- and gender-conscious admissions policies can have an effect more quickly, have diversified. In 1976, eighty-three per cent of university students were white; in 2016, fifty-seven per cent were white. The percentage of black students in that period increased from ten to fourteen; the percentage of students that the government categorizes as Hispanic increased from less than four to more than eighteen. The percentage of black and Latinx graduates (as opposed to enrollees) also increased (although graduation rates for both groups are lower than for whites).

Did affirmative-action admissions help? Starting in the mid-nineties, opponents of affirmative action were able to get laws passed prohibiting the use of race in admissions at public universities in several states, including Michigan, Washington, and California. The top public universities in those states tried to attract minority students by other means, but Urofsky says that the percentage of black and Hispanic students has dropped significantly.

Do students admitted under affirmative-action criteria benefit from their educations? Historically, black students as a group have tended to underperform academically—to get lower grades than their SAT scores predict. (So do varsity athletes.) Nevertheless, William Bowen and Derek Bok showed, in “The Shape of the River” (1998)—the most rigorous statistical analysis of race-conscious college admissions to that point—that of seven hundred black students who entered twenty-eight selective schools under race-preferential criteria in 1976, thirty-two per cent attained doctorates or professional degrees, as compared with thirty-seven per cent of white students. Nearly a hundred and twenty-five of the black students were business executives, and more than three hundred were “civic leaders” (running youth or community groups, for example). Race-conscious admissions policies, Bowen and Bok concluded, have been “highly successful” in advancing educational and societal goals.

As many writers have pointed out, when we are considering colleges and jobs, there is a pipeline problem. That’s why, as Urofsky notes, the greatest beneficiaries of affirmative action have been white women. They went to the same high schools that their brothers did (and most of them probably got better grades). That’s also why Barack Obama seemed to be focussed more on improving K-12 for minority children than on expanding access to post-secondary education. The success of affirmative action in employment and university admissions has not eliminated the education and income gaps between whites and blacks. Although the poverty rate for blacks and Hispanics has dropped some since 1970, it is still more than double the rate for whites. Americans of color are starting from much farther behind. Millions never get on board a train that most whites were born on.

“O.K., I may have had one bite.”

The Supreme Court case that admissions offices rely on today is Regents of the University of California v. Bakke. It was decided in 1978, and, despite several attempts to relitigate it, it is still the law of the land. Bakke is a good example of the jurisprudential confusion around affirmative action: the Court managed to produce six opinions in that case. The plurality opinion, by Lewis Powell, struck down an admissions program at the University of California at Davis School of Medicine, from which Allan Bakke, a white man, had been twice rejected, but it upheld the right of schools to use race-conscious admissions programs.

The problem at Davis was that the medical school basically ran two admissions processes, one for everybody and one that effectively considered only minority applicants, for whom sixteen places were set aside. Bakke was able to show that his record was superior to the records of some of the students who had been admitted through the special program.

The Davis program was obviously not narrowly tailored. One consideration that the university offered in the way of compelling state interest was its belief that minority M.D.s might end up practicing in underserved communities. Powell found no evidentiary basis for this, and it was arguably a racist assumption. The school could have investigated whether applicants had worked with underserved communities in the past. They did not, and Powell suggested that such a standard might be a better proxy than race. Another consideration Davis offered was the aim of “countering the effects of societal discrimination.” But Powell, though he allowed that specific race-conscious remedies could be justified by specific instances of discrimination, dismissed the general invocation of discrimination as “an amorphous concept of injury that may be ageless in its reach into the past.”

Still, Powell did think that the goal of a diversified medical-school class was constitutionally permissible, and he played a trump card that is almost never mentioned in discussions of the case, including Urofsky’s. Admissions programs determined by race are in violation of both the equal-protection clause of the Fourteenth Amendment and Title VI of the 1964 Civil Rights Act, which outlaws racial discrimination in institutions that receive federal funding. Those rights were largely on Bakke’s side: you couldn’t discriminate against whites simply because nonwhites had once been discriminated against. Powell argued, however, that another right was in play: the First Amendment; specifically, the right of academic freedom. There is no constitutional right of academic freedom, but Powell cited a 1957 case, Sweezy v. New Hampshire, in which Felix Frankfurter, in a concurring opinion, quoted South African jurists to the effect that the principle of academic freedom allows a university to determine who will teach its classes and who will sit in its classrooms.

Powell concluded that, since Davis could reasonably decide that a diverse class provides a better learning environment, considerations of an applicant’s race—as one factor among others—can fall within the exercise of a constitutionally protected right. (Under the Court’s ruling, Bakke was admitted to Davis and he became a doctor; Urofsky says that he went on to work at the Mayo Clinic, where one of his patients was Lewis Powell.)

The Michigan case, Grutter v. Bollinger, in 2003, was basically a relitigation of Bakke. As was Fisher v. Texas, in 2013, and the second round of that case, known as Fisher II, in 2016. The Fisher cases involved a white woman who was turned down for admission to the University of Texas at Austin, U.T.’s flagship campus. Her lawyers argued that, even if she were rejected solely because of her grades and not her race, she could still claim a “Constitutional injury” from being subjected to an unfair admissions process. Each time, the Court upheld the constitutionality of using race as a factor in admissions, but they were close calls. The vote in Fisher II was 4–3.

The current Harvard College admissions case, Students for Fair Admission v. Harvard, is the same case one more time. The person behind both Fisher and the Harvard case is Edward Blum, a man who for whatever reason has decided to devote his time to preventing a small number of black and brown teen-agers from attending colleges that are desperate to have them.

Harvard won at the trial level because the judge ruled that its admissions program is consistent with other Supreme Court decisions, such as Bakke. That’s not surprising, since Powell’s decision cited the Harvard admissions program as a model. But, given the composition of the Supreme Court, it is all too likely that it will decide that the country has timed out of this particular form of remediation.

For remediation is fundamentally what affirmative action is. Affirmative action has expanded to cover many kinds of difference, and, since Bakke, to be thought of as in service to a general social commitment to diversity per se—so that now people say things like “What about diversity of ideology?,” as though that somehow presented the same moral demand as a commitment to racial diversity.

But the reason we have affirmative action is that we once had slavery and Jim Crow and redlining and racial covenants, and that we once had all-white police forces and all-white union locals and all-white college campuses and all-white law firms. To paraphrase George Shultz, Nixon’s Secretary of Labor: for hundreds of years, the United States had a racial quota. It was zero. Affirmative action is an attempt to redress an injustice done to black people. The Fourteenth Amendment protects white people, too, but that is not why it needed to be written.

The Court’s decision in Shelby v. Holder vacating a central provision of the Voting Rights Act has backfired. It turns out that, when you remove enforcement mechanisms and remedial oversight, things tend to revert to the status quo ante. The whole history of affirmative action shows, as Urofsky somewhat reluctantly admits, that when the programs are shut down minority representation drops. Diversity, however we define it, is politically constructed and politically maintained. It doesn’t just happen. It’s a choice we make as a society.

It is possible to understand the opposition to affirmative action of white conservatives, like Ronald Reagan, who regard civil-rights laws as federal overreach and affirmative action as enshrining the un-American notion of group rights. And it is possible to understand the opposition of black conservatives, like Clarence Thomas, who see it as patronizing to African-Americans.

But it is hard to understand the opposition, often diehard, of many white liberals that has persisted since the nineteen-seventies. Did these people really imagine that passing a law against discrimination would reset race relations overnight? Do they really think that white Americans, wherever they work or go to college, do not carry a lifelong advantage because of the color of their skin? Do they really believe that there should be no sacrifice to make or price to pay for the systematic damage done to the lives of millions of American citizens and the men and women who are their ancestors? ♦