What the New York Times gets wrong about affirmative action
OPINION -This year’s Supreme Court docket could dramatically alter racial policy in America, with cases that could invalidate two key achievements of the civil rights movement: The Voting Rights Act and affirmative action...
When we debate how to advance women in society, and how institutions should consider gender diversity when recruiting leaders, we are also talking about affirmative action. (President Lyndon Johnson first applied the policy to women in 1965, the year the Voting Rights Act passed, through an executive order.) Yet few would propose that every woman who advances under affirmative action must be the “first” woman in her family to graduate college, or hail from a poor family. Instead, the whole point of female recruiting efforts is to combat a history and society that artificially holds people back based on their identity. A diverse set of leaders also helps institutions build legitimacy by reflecting their membership, a point made by many organizations in the affirmative action case.
A group of retired military leaders, for example, told the Court that the Armed Forces excels when officers reflect the enlisted population, and many corporations cite similar rationales for their workforce. (Dozens of America’s largest corporations, like GE, Microsoft, Halliburton, PepsiCo and Dow, filed a brief backing affirmative action in the case.) Plenty of other institutions do not use affirmative action, of course, which is their choice, and even in some blue states like California, voters have chosen to take the option off the table. This year, the only question before the Court is whether to maintain that kind of freedom, or to rule that the very act of considering identity is itself unconstitutional for public institutions.
That is the final flaw in the Times’s rumination on affirmative action – the notion that the Court’s intervention would catalyze a new dawn for innovation in equal opportunity policy. Under the law today, however, nothing is holding back universities, institutions or voters from experimenting with different approaches. Indeed, while a handful of elite schools draw tremendous attention and litigation, affirmative action is literally a moot issue for most students, who attend one of the less celebrated 4,495 colleges, or 1,721 community colleges, across America. At most of those schools, affirmative action is irrelevant because cost, not selective admissions, is the main determinant for who matriculates.
If the Court does strike another blow against affirmative action – its third in 35 years – the ruling is far more likely to chill equal opportunity policy than inspire it. For most liberals and civil rights advocates in this fight, that’s an outcome that will be mourned, not cheered.
Ari Melber is an attorney, Nation correspondent and MSNBC contributor. He has written about the law and politics of affirmative action for “At Issue: Affirmative Action,” (Cengage, 2009).
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