Affirmative Action Is Ending. What Now?


photo illustration collage with caution tape, a protest against school segregation, Black graduates in cap and gown, Black students studying
Illustration by Dakarai Akil*

This article was published online on July 26, 2021.

One afternoon, during my freshman year at Alabama A&M University, my homework was piling up, and I was feeling antsy. I needed a change of scenery from Foster Hall. I’d heard that the library at the University of Alabama at Huntsville, 10 minutes away, was open three hours longer than our own. So I loaded up my backpack, ran down the stairs—the dorm’s elevator was busted—and headed across town.

Founded in 1875 to educate Black students who had been shut out of American higher education, A&M was a second home for me. My mom had gone there; my uncle had been a drum major in the ’80s; my sister was on the volleyball team. But when you’re home long enough, you start to notice flaws: The classroom heaters were always breaking down, and the campus shuttle never seemed to run on time when it was coldest out. When I arrived at UAH, I was shocked. The buildings looked new, and fountains burst from man-made ponds. The library had books and magazines I’d never heard of—including the one for which I now write.

Something else quickly became obvious: Almost every student I saw at UAH was white. That day, a little more than a decade ago, was my introduction to the bitter reality that there are two tracks in American higher education. One has money and confers prestige, while the other—the one that Black students tend to tread—does not.

The United States has stymied Black education since the country’s founding. In Alabama in the 1830s, you could be fined $500 for teaching a Black child. Later, bans were replaced by segregation, a system first enforced by custom, then by state law. Entrepreneurial Black educators opened their own colleges, but as a 1961 report by the U.S. Commission on Civil Rights pointed out, these schools were chronically underfunded. The report called for more federal money for institutions that did not discriminate against Black students. Nothing much came of it.

But as the civil-rights movement gained traction, white schools started reckoning with a legacy of exclusion. For the first time, they began to make a real effort to offer Black students an equal shot at higher education, through a strategy called affirmative action.

President John F. Kennedy had used the phrase in a 1961 executive order requiring government contractors to “take affirmative action to ensure that applicants are employed, and employees are treated during employment, without regard to their race, creed, color, or national origin.” The goal was to diversify the federal workforce and, crucially, to begin to correct for a legacy of discrimination against applicants of color.

Colleges that adopted affirmative action in their admissions programs quickly faced challenges. White applicants filed lawsuits, claiming that to take race into account in hiring or education in any way discriminated against them. A long process of erosion began, undermining the power of affirmative action to right historical wrongs.

Today, race-conscious admissions policies are weak, and used by only a smattering of the most highly selective programs. Meanwhile, racial stratification is, in many places, getting worse.

Nearly half of the students who graduate from high school in Mississippi are Black, but in 2019, Black students made up just 10 percent of the University of Mississippi’s freshman class. The share of Black students there has shrunk steadily since 2012. In Alabama, a third of graduating high-school students are Black, but in 2019 just 5 percent of the student body at Auburn University, one of the state’s premier public institutions, was Black. While total enrollment has grown by thousands, Auburn now has fewer Black undergraduates than it did in 2002.

Over the past two decades, the percentage of Black students has fallen at almost 60 percent of the “101 most selective public colleges and universities,” according to a report by the nonprofit Education Trust.

The Supreme Court may soon hear a caseStudents for Fair Admissions v. Harvard—that could mark the definitive end of affirmative action in higher education nationwide. If the Court takes the case, the plaintiffs will argue that under no circumstances should race be taken into consideration in college admissions. They will make this argument before a conservative majority that many observers believe is sympathetic to this view.

If the majority dismisses what remains of the nation’s experiment with affirmative action, the United States will have to face the reality that its system of higher education is, and always has been, separate and unequal.

To understand the loss of race-conscious admissions, we must first appreciate what it accomplished—and what it didn’t.

In 1946, President Harry Truman commissioned a comprehensive report on the state of American higher education. The study found that 75,000 Black students were enrolled in America’s colleges, and about 85 percent of them went to poorly funded Black institutions. “The ratio of expenditures of institutions for whites to those of institutions for Negroes,” it noted, “ranged from 3 to 1 in the District of Columbia to 42 to 1 in Kentucky.”

Affirmative action jump-started Black enrollment at majority-white colleges. And the overall number of Black graduates boomed—more than doubling from the early 1970s to the mid-’90s. But the drive to reform higher education had slowed, and by the end of that period it was running on fumes.

Affirmative action was hobbled almost from the start, in large part because of a case brought against the regents of the University of California. In 1973, Allan Bakke, a white man in his early 30s, was rejected by the UC Davis School of Medicine. He was rejected by 10 other medical schools as well, and again by UC Davis in 1974, perhaps because he was considered too old to begin training for medicine. But that’s not how Bakke saw it. UC Davis had apportioned 16 out of its 100 seats for applicants from underrepresented groups, and Bakke sued, arguing that the program violated his rights guaranteed by the Fourteenth Amendment, as well as Title VI of the Civil Rights Act, which bars entities receiving federal funds from discrimination. The California Supreme Court agreed, ruling that colleges could not consider race in admissions.

When the Supreme Court heard oral arguments on October 12, 1977, the courtroom was packed. Newspapers hailed Bakke as the most important civil-rights case since Brown v. Board of Education. The Court ultimately released six different opinions, a judicial rarity. Four justices agreed, in some form, with Bakke that the university’s affirmative-action strategy violated Title VI because it capped the number of white students at 84. Four other justices argued that the strategy was permissible. The decision came down to one man: Justice Lewis F. Powell Jr.

Powell’s opinion was a compromise. Yes, institutions could consider race, but only for the sake of general diversity. In Powell’s view, affirmative action was not a way of righting historical—and ongoing—wrongs against Black people; it was a way to achieve diversity, a compelling state interest because it benefited all students.

Time and again, courts have upheld Powell’s rationale. As a result, schools have not been able to design affirmative-action programs to redress discrimination against Black students, or to systematically increase their share of the student body. Wary of running afoul of the law, schools that have enacted affirmative-action programs have done so too timidly to make a real difference. Only in rare cases have these programs accomplished much more than keeping the Black share of the student body at pre-Bakke percentages.

Perhaps the best that can be said for this neutered version of affirmative action is that, in states where the practice has been banned, the picture is even bleaker. In 2006, Michigan prohibited the consideration of race in admissions at public colleges and universities. Black students made up 9 percent of the University of Michigan before the ban, and 4 percent a few years after it went into effect. The number has hovered there ever since.

Affirmative action has been a veil obscuring the truth about American higher education. It has never been that hard to see through, for those who tried, but removing it could force the nation at large to recognize the disparities in our system, and to search for better mechanisms to make college equitable.

One way to make a real difference would be to support the institutions that Black students have historically attended, and that still produce an outsize share of Black professionals.

Black colleges do more with less for those who have always had less. But their finances are precarious. A 2018 report by the Government Accountability Office found that the median endowment at Black colleges was half the size of median endowments at comparable white colleges. In some cases, states are supposed to match federal funds to historically Black colleges and universities, but they often simply choose not to. From 2010 to 2012, one report found, Black land-grant colleges were denied more than $56 million in state money. A bipartisan legislative committee in Tennessee showed this year that the state had shorted Tennessee State University, the Black college in Nashville, by hundreds of millions of dollars in matching funds since the 1950s.

There are 102 HBCUs—many with stories like Tennessee State’s. The scale of harm is devastating. Wealth accumulates, and Black colleges have been blocked from building it.

Philanthropists have recently stepped in to fill some of the gaps. MacKenzie Scott, Jeff Bezos’s ex-wife, donated hundreds of millions of dollars to 22 HBCUs last year. In several cases, the gift represented the largest single donation the school had ever received. But even some of those largest-ever donations were relatively small—$5 million or $10 million. These are sums that would not merit press releases at some predominantly white institutions.

Perhaps those institutions—the ones that, for years, barred Black students’ entry while profiting from slavery and Jim Crow; the ones that were lavished with state funding denied to Black colleges—now have a responsibility to provide that aid to HBCUs.

Some colleges are already examining their legacies of slavery and discrimination. In 2003, the president of Brown, Ruth Simmons (the first Black person to lead an Ivy League school), appointed a committee to explore the university’s relationship with the slave trade. After Brown learned that it had profited from the infernal institution, the question became: What should be done? Could the school go beyond the inevitable campus memorial and conferences on slavery?

In 2019, Georgetown students voted to tax themselves—in the form of a $27.20 fee, in honor of the 272 people the university sold in 1838 to save itself from financial ruin. The money would go to benefit those people’s descendants. But symbolic reparations that depend on student initiatives—including contributions from Black students—are not the best way to make amends. A few months later, the university said it would provide the funding itself.

These schools should make a bigger sacrifice, by redistributing some of their own endowment funds—the unrestricted bequests, at least—to Black colleges, or to support Black students. Flagship state institutions—places like the University of Mississippi, which just reported a record endowment of $775 million—could share some of the wealth they accumulated during the years they denied Black students enrollment.

The primary responsibility for repairing the legacy of higher education, however, lies with the government. It could set up scholarship funds and loan-forgiveness programs for Black students. States could redistribute endowments themselves, or give institutions that enroll more minority students a greater share of the education budget.

The United States has never atoned for what it has done to hamper the progress of Black people. The country has provided again and again for white students. Now it must do the same for those whom it has held back.

This spring, I traveled home—back to Alabama A&M. The campus looked sharp. I was impressed to see that the old shuttles had been replaced with three new electric buses. I asked my wife to snap a picture of me just as a landscaper pulled up to manicure some flower beds.

We drove across town to UAH, where the campus was bustling and the students were still mostly white. There was a new building I didn’t recognize. Instead of three electric buses, there were six charging stations for electric vehicles in front of the library. They can be used free of charge by all students, faculty, and staff.

For every step forward at A&M, UAH was taking two.

This article has been adapted from Adam Harris’s new book, The State Must Provide: Why America’s Colleges Have Always Been Unequal—And How to Set Them Right. It appears in the September 2021 print edition with the headline “This Is the End of Affirmative Action.”

*Lead image: Illustration by Dakarai Akil; images by H. Armstrong Roberts / ClassicStock / Getty; Pictorial Parade / Hulton Archive / Getty; Marty Caivano / Digital First Media / Boulder Daily Camera / Getty; National Archive / Newsmakers / Getty