Table of Diversity Weekly: Affirmative Action

The Supreme Court recently ruled that race-conscious admission policies, also known as affirmative action, of Harvard College and the University of North Carolina violate the Constitution. This brings an end to affirmative action in higher education, a precedent that has been in place since 1978.

You may be wondering what this means for educational institutions and for organizations that recruit and hire from colleges and universities. This week's issue of A Healthy Dose of DEI is a deep dive into affirmative action and what it means to move forward now that it no longer exists. This issue explores the history of affirmative action, perspectives of people who support affirmative action, and perspectives of people who oppose affirmative action.

As you engage with the content in this edition, our goal for you is to consider various perspectives, even those that may not align with your personal beliefs. We grow in compassion and empathy when we can see other perspectives and opinions.

As a monthly subscriber of A Healthy Dose of DEI, you get access to activities for you and your team, a book recommendation, and learn more about an influential person person in civil rights history.

Read. Listen. Watch.

Supreme Court guts affirmative action, effectively ending race-conscious admissions. -NPR

"The U.S. Supreme Court has found that Harvard and the University of North Carolina's admissions policy violated the equal protection clause of the 14th Amendment.

The decision reverses decades of precedent upheld over the years by narrow court majorities that included Republican-appointed justices. It could end the ability of colleges and universities- public and private- to do what most say they still need to do: consider race as one of many factors in deciding which of the qualified applicants is to be admitted.

Chief Justice John Roberts, a longtime critic of racial preferences of any kind, wrote the court's majority decision saying that the nation's colleges and universities must use colorblind criteria in admissions.

'The Court has permitted race-based college admissions only within the confines of narrow restrictions: such admissions programs must comply with strict scrutiny, may never use race as a stereotype or negative, and must- at some point- end,' the court wrote in its majority opinion. 'Respondents' admissions systems fail each of these criteria and must therefore be invalidated under the Equal Protection Clause of the Fourteenth Amendment.'

The ruling in the UNC case was 6-3 along ideological lines; in the Harvard case, it was 6-2, with Justice Ketanji Brown Jackson recusing.

The majority added: 'At the same time, nothing prohibits universities from considering an applicant's discussion of how race affected the applicant's life, so long as that discussion is concretely tied to a quality of character or unique ability that the particular applicant can contribute to the university. Many universities have for too long wrongly concluded that the touchstone of an individual's identity is not challenges bested, skills built, or lessons learned, but the color of their skin. This Nation's constitutional history does not tolerate that choice.'"

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The Changing Meaning of Affirmative Action. -New Yorker

"The terrible paradox of the civil-rights movement is that outlawing racial discrimination made it harder to remediate its effects. Once we amended the Constitution and passed laws to protect people of color from being treated differently in ways that were harmful to them, the government had trouble enacting programs that treat people of color differently in ways that might be beneficial. We took race out of the equation only to realize that, if we truly wanted not just equality of opportunity for all Americans but equality of result, we needed to put it back in. Our name for this paradox is affirmative action.

The term was introduced to the Kennedy Administration almost sixty years ago, and its arrival was somewhat haphazard. According to Nicholas Lemann's history of meritocracy, 'The Big Test,' the man who suggested it was an African-American lawyer named Hobart Taylor, Jr. He was a Texan, and when John F. Kennedy was sworn in, in 1961, he dropped in on the inaugural ball for Texans in order to shake hands with the new Vice President, Lyndon B. Johnson.

They chatted, and Johnson asked him to come by his office. When Taylor showed up, Johnson handed him a draft of what would become Executive Order 10925, setting up the President's Committee on Equal Employment Opportunity, which Johnson was to chair. Taylor read the draft and said he thought it could use a little work; Johnson asked him to do a rewrite. And that is when Taylor inserted the words 'affirmative action.' He liked the phrase, he later said, because of the alliteration (or the assonance).

Taylor needed a flexible phrase because Kennedy's committee was a bureaucratic entity with a vague mandate meant to signal the Administration's commitment to fairness in employment. Its purview, like the purview of committees dating back to the Administration of Franklin Roosevelt, was the awarding of federal contracts, and its mandate was to see that companies the federal government did business with did not discriminate on the basis of race. The committee had no real enforcement mechanism, though, so 'affirmative action' was intended to communicate to firms that needed to integrate their workforce something like 'Don't just stand there. Do something.' What they were supposed to do, aside from not discriminating, was unspecified."

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The Man Behind the Push to End Affirmative Action. -Wall St. Journal

"As the Supreme Court prepared its decision that is set to curtail a half-century of race-conscious affirmative action in college admissions, the man who drove the case sat in his home office in Maine last month searching for the next lawsuit.

Edward Blum, 71 years old, is a slender financial advisor by trade with a sunny disposition and polarizing track record. For the past 30 years, he has been on a mission to spearhead legal cases aimed at removing racial preferences from American life- by upending the law governing them. He has found some success- and drawn considerable ire.

Blum has been the force behind eight cases argued in front of the Supreme Court, despite never having gone to law school. On Thursday, in twin cases Blum organized against Harvard College and the University of North Carolina, justices returned a decision that largely overturns 40 years of legal precedent that has allowed universities to consider race when admitting students.

For his efforts, Blum has been hailed by some conservatives as a patriot and by some on the left as a racist.

When asked to describe himself, Blum says he is a former marathon runner with an unusually high degree of tenacity and tolerance for discomfort. Those attributes have helped make him an avatar for conservatives' decades long pushback against what they see as legislative overreach for the American sins of slavery and legal racial discrimination.

'The 1964 Civil Rights Act clearly forbids treating Americans differently by race, that seems to have been lost over the years,' Blum said."

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With affirmative action gone, states have a duty to eliminate inequity in public schools. -Chicago Sun-Times

"For a real-world example of how government-sponsored structural racism against Blacks manifests, look no further than Illinois.

Historically, Illinois has over-relied on local property taxes to fund K-12 education, effectively tying educational quality to local property wealth. Meanwhile, due in large part to decades of federally dictated housing discrimination, many Black families in Illinois are clustered in communities that are predominantly Black, and low- to middle-income with lower property values- hence less capacity to fund education. This has created a highly segregated public school system that for generations has put many Black children at a disadvantage compared to their white peers. Black kids simply have had less opportunity to develop the numeracy/literacy skills needed to do well on standardized tests and thus punch a ticket into an elite university.

The national data show this bias isn't unique to Illinois. So it shouldn't surprise anyone that as of 2021, 50% of all whites ages 25-64 had a college degree, compared to only 34% of Blacks. In this context, affirmative action in college admissions is far less about disadvantage to whites (the Asian plaintiffs in this Supreme Court case) and far more about redress for systemic discrimination."

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The campaign against affirmative action shifts to corporate America. -Washington Post

"San Francisco- Weeks after George Floyd died at the hands of Minneapolis police, sparking nationwide protests over racial inequality, Microsoft joined an avalanche of companies announcing lofty plans to diversify their overwhelmingly White workforces.

The tech giant promised to double the number of Black employees in senior leadership roles by 2025. It also pledged to double the number of Black- and African American-owned suppliers by 2023, as well as its percentage of transactions with Black- and African American-owned banks.

Three years later, Microsoft said it has met most of those goals. But now its pledge is drawing scrutiny from a group of Republican state attorneys general who say large companies have set 'racially discrimination quotas and preferences.' In the wake of a recent Supreme Court decision outlawing affirmative action in college admissions, the officials argue, such 'explicitly race-based initiatives' in the corporate world 'are similarly illegal.'

Companies 'need to understand there is a debate and legal risk here,' Tennessee Attorney General Jonathan Skrmetti said in an interview. 'We want companies to know that they may not be able to do all these things that they've been doing.'

Last week, Skrmetti and Kansas Attorney General Kris Kobach sent a letter urging Microsoft and other Fortune 100 companies to reexamine their policies in response to the June 29 Supreme Court ruling. Though the decision applies only to college admissions, the letter- signed by GOP attorneys general from 13 states- is part of a growing conservative campaign to target affirmative action in hiring and other settings."

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Justice Thomas's Critics on Affirmative Action Prove His Point. -National Review

"Those criticizing Justice Clarence Thomas in recent weeks for his views on affirmative action have only reinforced one of his main points: Because affirmative action causes some people to question others' achievements, affirmative action perpetually harms individuals who would have succeeded without it.

Justice Thomas made this critique 20 years ago in his separate opinion in Gurtter v. Bollinger. The very existence of affirmative action, he said, causes some employers reviewing job applicants to wonder whether 'skin color played a part in their advancement.' 'The question itself,' Justice Thomas wrote, 'is the stigma' because it 'unfairly marks those...who would succeed without discrimination.'

In recent weeks, critics have done worse than simply question whether Clarence Thomas would have succeeded without affirmative action. They have outright assumed- based solely on the color of his skin- that he would not. MSNBC's Joy Reid confidently declared a few weeks ago that affirmative action 'is how Clarence Thomas got' to Yale Law School. The NAACP president recently said that affirmative action 'created' and 'benefited' Thomas. And letters to the editors from residents across the country have said the same thing.

But there is scant evidence that Clarence Thomas benefited from affirmative action at all. As recently noted in the Wall Street Journal, Thomas was toward the top of his seminary class when applying to College of the Holy Cross and toward the top of his undergraduate class (with honors) when applying to Yale Law School."

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Throughline: Affirmative Action

"This conversation was recorded ahead of the Supreme Court's expected decision on affirmative action. As of publishing, no decision has been issued.

The Supreme Court is expected to rule on affirmative action sometime this month. Most of us understand that some colleges use race as a factor in college admissions. But journalist Jay Caspian Kang argues that this focus is too narrow, and that it avoid harder conversations we need to have as a culture. In his view, focusing on the admissions practices of a select few universities creates 'a fight for spots in the elite ranks of society' -and blinds us to the bigger problems plaguing American democracy. On today's episode, we talk with Kang about affirmative action's origins in the civil rights era, what it does and doesn't achieve, and what a more equitable education system could look like."

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The Daily: How Clarence Thomas Came to Reject Affirmative Action

"Supreme Court Justice Clarence Thomas, the second Black justice to sit on the court after Thurgood Marshall, has spent years opposing affirmative action. When the high court struck down the policy last month, Justice Thomas was one of the most influential figures behind the ruling.

Abbie VanSickle, who covers the Supreme Court for The Times, explains the impact affirmative action has had on Justice Thomas's life and how he helped to bring about its demise."

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On Diversity: Access Ain't Inclusion, Anthony Jack, TEDxCambridge

"Getting into college for disadvantaged students is only half the battle. Anthony Abraham Jack, Assistant Professor at the Harvard Graduate School of Education, reveals how and why they struggle and explains what schools can do differently if these students are to thrive. He urges us to grapple with a simple fact: access is not inclusion.

Anthony Abraham Jack is a Junior Fellow at the Harvard Society of Fellows and Assistant Professor of Education at the Harvard Graduate School of Education. He holds the Shutzer Assistant Professorship at the Radcliffe Institute for Advanced Study. His research documents overlooked diversity among lower-income undergraduates: the doubly disadvantaged- those who enter college from local, typically distressed public high schools- and the privileged poor- those who do so from boarding, day, and preparatory high schools. His scholarship has appeared in the Du Bois Review, Sociological Forum, and Sociology of Education, and has earned awards from the American Sociological Association, Eastern Sociological Society, and the Society for the Study of Social Problems."

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Weekly Activities

Activity 1: Let's talk root cause analysis. The recent Supreme Court ruling has resurfaced discussions on how to go about the work of DEI most effectively. Now is a great time to pause and analyze the effectiveness of your DEI efforts. Ask yourself, are the solutions we have implemented addressing the root cause or a symptom?

Here's an example: Jane wakes up with a pounding headache. She takes aspirin to address her headache. The next day, Jane wakes up, and again, has a pounding headache. She takes aspirin and she makes an appointment with her doctor to figure out why these headaches keep occurring. After many data-gathering sessions, tests, and assessments, Jane learns that she is severely allergic to her cat. Armed with this knowledge, Jane decides to undergo a multi-year immunotherapy treatment to build an immunity to her allergens so she and her cat can live together peacefully.

Jane could have continued treating her headache (the symptom) with aspirin but because she got to the root cause of the issue, she was able to engage in a solution that sustainably solved the problem.

This occurs in organizations, too! In the solutions you are implementing within your organization, are they addressing a symptom or the root cause?

Here's an example of what this might look like within an organization: Organization A has made a commitment to diversify their senior leadership team. They implement a leadership development program for women who have been with the organization for 10+ years to teach leadership skills. After several cohorts of women have completed the leadership development program, very few have made it to the senior leadership team.

This is an example of addressing the symptom, instead of the root cause. There was an assumption that women don't have the leadership skills necessary to be promoted to the senior leadership team. Often, that's far from the truth. The reality is that there are systems, processes, and norms that prevent women from attaining senior level roles. By understanding these things, it's easier to see whether a simple aspirin can remedy the problem or if a long-term immunotherapy treatment is necessary.

Take a look at a solution implemented by your organization to solve for DEI. Does it address the root cause or does it suppress a symptom?

Activity 2: While, the recent Supreme Court ruling is focused on diversity in higher education, the message and impact of the ruling can be felt across all industries. This presents a opportunity to either cease or double down on DEI efforts. If you're here, hopefully you are committed to the work and can use this as an opportunity to double down on your DEI efforts.

With your team, discuss how DEI is important to your team's day-to-day work. A prompt that might be useful to start the conversation is: DEI helps our team achieve...

The more specific you can get on outcomes, the easier it is to get onboard and stay onboard, despite what's happening in the world around us.

Activity 3: What are your beliefs on affirmative action?

As you come to a conclusion on affirmative action, have you considered different perspectives? Part of this journey is purposefully seeking perspectives and opinions that differ from our own in an effort to understand what others think. On affirmative action, there are numerous perspectives to explore:

• Proponents of affirmative action, in general

• Those who believe they benefited from affirmative action

• Those who believe affirmative action was a barrier to their inclusion and success

• Those who oppose affirmative action, in general

The goal is not for you to change your mind, but to see if there are points in any of these perspectives that you can understand. Doing so can help you better empathize with others.

Book Recommendation

The Affirmative Action Puzzle: A Living History from Reconstruction to Today

"A rich, multifaceted history of affirmative action from the Civil Rights Act of 1866 through today's tumultuous times.

From acclaimed legal historian, author of a biography of Louis Brandeis ('Remarkable'- Anthony Lewis, The New York Review of Books, 'Definitive'- Jeffrey Rosen, The New Republic) and Dissent and the Supreme Court ('Riveting'- Dahlia Lithwick, The New York Time Book Review), a history of affirmative action from its beginning with the Civil Rights Act of 1866 to the first use of the term in 1935 with the enactment of the National Labor Relations Act (the Wagner Act) to 1961 and John F. Kennedy's Executive Order 10925, mandating that federal contractors take 'affirmative action' to ensure that there be no discrimination by 'race, creed, color, or national origin' down to today's American society.

Melvin Urofsky explores affirmative action in relation to sex, gender, and education and shows that nearly every public university in the country has at one time or another instituted some form of affirmative action plan--some successful, others not.

Urofsky traces the evolution of affirmative action through labor and the struggle for racial equality, writing of World War I and the exodus that began when some six million African Americans moved northward between 1910 and 1960, one of the greatest internal migrations in the country's history.

He describes how Harry Truman, after becoming president in 1945, fought for Roosevelt's Fair Employment Practice Act and, surprising everyone, appointed a distinguished panel to serve as the President's Commission on Civil Rights, as well as appointing the first black judge on a federal appeals court in 1948 and, by executive order later that year, ordering full racial integration in the armed forces.

In this important, ambitious, far-reaching book, Urofsky writes about the affirmative action cases decided by the Supreme Court: cases that either upheld or struck down particular plans that affected both governmental and private entities. We come to fully understand the societal impact of affirmative action: how and why it has helped, and inflamed, people of all walks of life; how it has evolved; and how, and why, it is still needed."

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People You Should Know

Justice Thurgood Marshall

"Who Was Justice Thurgood Marshall?

Some called Thurgood Marshall a revolutionary. Some simply called him strong-willed. Others saw him as a futurist. Either way, Thurgood Marshall was destined for greatness. Through his greatness came a legacy of equality and justice, but above all, education.

It all began in Baltimore on July 2, 1908, when a child, Thoroughgood Marshall was born. He was the great-grandson of a slave who was born in the modern-day Democratic Republic of the Congo. His grandfather was also a slave. His original name was "Thoroughgood", but he shortened it to "Thurgood" in the second grade because he did not like spelling it. His father was William Marshall, a railroad porter, who instilled in him an appreciation for the U.S. Constitution and the rule of law.

With the U.S. Constitution and the rule of law as his guideposts, Marshall was a dedicated student. He graduated from Baltimore's Frederick Douglass High School in 1925 and then from Lincoln University in Pennsylvania in 1930. While at Lincoln University, he was initiated as a member of the first black fraternity, Alpha Phi Alpha Fraternity, Inc. Ready to move on to law school, he sought to attend his hometown law school, he University of Maryland School of Law. But he was told he would not be accepted because of the school's segregation policy. Later, as a civil rights lawyer, he sued the school for this policy in 1935 and won, ending segregation at the school in Murray v. Pearson.

Marshall graduated first in his class from the Howard University School of Law in 1933. Early in his career, as a young lawyer, he fought the State of Maryland for equal pay for black schoolteachers who were receiving the same salary as janitors. By 1936, he established a private practice in Baltimore where he began working with the National Association of the Advancement of Colored People (NAACP). Then, at the age of 32, Marshall won his first U.S. Supreme Court Case, Chambers v. Florida, and later that year, he was named chief counsel for the NAACP. He argued many successful cases before the U.S. Supreme Court (winning 29 of 32 cases), including Smith v. Allwright in 1944, Shelly v. Kraemer in 1948, Sweatt v. Painter in 1950, and McLaurin v. Oklahoma State Regents in 1950. But, it wasn't until 1954, when he argued Brown v. Board of Education of Topeka, in which the U.S. Supreme Court struck down the "Separate but Equal" doctrine, thus ending legalized segregation of education institutions."

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