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Affirmative Action

A Plea for Affirmative Action

Affirmative action1×1. “Affirmative action” is “a set of procedures designed to . . . eliminate unlawful discrimination among applicants, remedy the results of such prior discrimination, and prevent such discrimination in the future.” Affirmative Action, Cornell Univ.: Legal Info. Inst., https://www.law.cornell.edu/wex/affirmative_action [https://perma.cc/HFP7-HRX7]. But see John Valery White, What Is Affirmative Action?, 78 Tul. L. Rev. 2117, 2118, 2124 (2004) (noting that there is no “rigorous definition” of affirmative action, id. at 2118, and arguing that this remarkable circumstance has distorted and undercut American antidiscrimination law, id. at 2124). in the form of race-conscious admissions is being legally challenged by a conservative activist organization .2×2. See generally Lee C. Bollinger, What Once Was Lost Must Now Be Found: Rediscovering an Affirmative Action Jurisprudence Informed by the Reality of Race in America, 129 Harv. L. Rev. F. 281 (2016) (discussing the major affirmative action cases that the Supreme Court has heard); infra Part II, pp. 211–13. During the Supreme Court’s 2022 October Term, the Court heard constitutional arguments against the use of race in admissions programs at two prestigious universities: one private, Harvard University, and one public, the University of North Carolina at Chapel Hill.3×3. In the challenge to the Harvard policy, the Court heard Students for Fair Admissions, Inc. v. President & Fellows of Harvard College, 142 S. Ct. 895 (2022) (granting certiorari). In the challenge to the North Carolina policy, the Court heard Students for Fair Admissions, Inc. v. University of North Carolina, 142 S. Ct. 896 (2022) (granting certiorari). While these cases were originally consolidated, they are no longer consolidated so that Justice Jackson could participate in the North Carolina case. See Kimberly Strawbridge Robinson, Supreme Court Decouples Harvard, UNC Affirmative Action Cases, Bloomberg L.: U.S. L. Wk. (July 22, 2022, 4:16 PM), https://news.bloomberglaw.com/us-law-week/supreme-court-separates-affirmative-actions-cases-for-jackson [https://perma.cc/YMS5-47YP]. With these cases coming on the heels of the Court’s decision in Dobbs v. Jackson Women’s Health Organization,4×4. 142 S. Ct. 2228 (2022). where the Court overturned years of precedent of Roe v. Wade,5×5. 410 U.S. 113 (1973), overruled by Dobbs, 142 S. Ct. 2228. to hold that abortion is not a constitutional right, many observers have predicted that the Court will decide to ban race-conscious admissions.6×6. See, e.g., Robert Barnes & Nick Anderson, Race-Conscious University Admission Policies to Face Supreme Court Review, Wash. Post (Jan. 24, 2022, 6:18 PM), https://www.washingtonpost.com/politics/courts_law/supreme-court-affirmative-action/2022/01/24/908fb92e-7d1e-11ec-8d71-0e9ca350d4b1_story.html [https://perma.cc/XPJ3-XRFD]; Lauren Camera, Supreme Court to Revisit Race-Based College Admissions, U.S. News & World Rep. (Jan. 24, 2022, 1:51 PM), https://www.usnews.com/news/education-news/articles/2022-01-24/supreme-court-to-revisit-race-based-college-admissions [https://perma.cc/5NVJ-Z739] (noting the Court’s 6–3 conservative majority “could weaken race-conscious policies that schools — especially the country’s most elite — rely upon for diversity”). In this Essay, I, a Black, first-generation college graduate from a low-income, single-parent household in the formerly racially segregated Deep South, reflect on my personal experiences as an “affirmative action beneficiary” (AAB), that is, a minority-background student who obtained an education at a formerly white-only, elite college or professional school. Based on my personal experience, I plea for a continued commitment to diversity, equity, and inclusion through the use of race-conscious admissions policies in higher education and professional schools. Caveat: Recognizing that the use of race in university admissions is currently highly regulated by various Supreme Court decisions and arguing that race-conscious admissions should be a remedy for historic, chronic discrimination against Black people, I posit that the Court should uphold its precedents and not ban the use of race-conscious admissions practices. To the Court’s conservative Justices, I say that race-conscious admissions practices continue to serve the diversity rationale of the Court’s existing jurisprudence.7×7. See Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 313–15 (1978) (opinion of Powell, J.). To the broader audience of people of goodwill, I argue that enrolling Black students in formerly white-only, elite colleges and professional schools should not merely serve white interests, that Black students are legally and morally entitled to choose where they wish to be educated, that Black students are entitled to admission because they are academically qualified, that society has a debt owed to Black people to redress historical racial inequality,8×8. See, e.g., Natasha K. Warikoo, The Diversity Bargain: And Other Dilemmas of Race, Admissions, and Meritocracy at Elite Universities 104 (paperback ed. 2019) (discussing the commodification of diversity, where white students accept affirmative action only insofar as it benefits them by creating a diverse learning environment); Kimberly Reyes, Affirmative Action Shouldn’t Be About Diversity, The Atlantic (Dec. 27, 2018), https://www.theatlantic.com/ideas/archive/2018/12/affirmative-action-about-reparations-not-diversity/578005 [https://perma.cc/6AJV-2WVP] (“Affirmative action should be about reparations and leveling a playing field that was legally imbalanced for hundreds of years and not about the re-centering of whiteness while, yet again, demanding free (intellectual) labor from the historically disenfranchised.”). and that society must promote the social and economic mobility that Black people are justly and equally due as Americans.9×9. Susan P. Sturm, Reframing Affirmative Action: From Diversity to Mobility and Full Participation, U. Chi. L. Rev. Online (Oct. 30, 2020), https://lawreviewblog.uchicago.edu/2020/10/30/aa-sturm [https://perma.cc/6PFZ-893D] (“Affirmative action normalizes the operation of a system that preserves racial and economic stratification and hierarchy.”).

Introduction

I am a Black person of African descent who, in 1971, was a highly qualified applicant and was admitted to an elite Ivy League college facilitated by affirmative action. As the Supreme Court is once again poised to assess the constitutionality of race-conscious admissions, and as I recognize that the Court is likely to ban the use of such policies, I wish to testify on behalf of the continuation of the current restricted use of race in collegiate and professional school admissions. In this Essay, I advance the position that universities should have the academic freedom to use race as one of many criteria for admission to achieve the educational goal of diversity, a position which was envisioned by Justice O’Connor’s majority opinion in Grutter v. Bollinger.10×10. 539 U.S. 306, 315, 324–25 (2003). To clarify, when I speak of “race-conscious” admissions, I mean admissions practices that comply with the current tenets of the law following decades of Supreme Court decisions — namely that an applicant be academically qualified for admission, be evaluated as an individual, and not be admitted as the result of a racial quota.11×11. See Nick Anderson & Susan Svrluga, How Is Affirmative Action Used in College Admissions?, Wash. Post (Oct. 27, 2022, 1:04 PM), https://www.washingtonpost.com/education/2022/01/24/college-admissions-affirmative-action-race [https://perma.cc/ZN22-AYMK]. In other words, an applicant will not be admitted merely because they are a Black person.

In this testimony, I shall (1) present my family history of being the victims of white supremacists in the State of Louisiana; (2) provide a brief history of challenges to the constitutionality of race-conscious collegiate and professional school admissions; (3) describe my experiences as an “affirmative action beneficiary” (AAB), being admitted into Yale College in 1971; (4) lay out how I contributed to the educational goal of diversity while at Yale; (5) show how I and other AABs have made contributions to society as a result of an inclusive admission policy; and (6) argue why I believe that race-conscious practices are good public policy and should be enhanced and not restricted.

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* Henry F. Bonura, Jr., Distinguished Professor of Law at Loyola University New Orleans College of Law. Yale Law School, J.D., 1981; Oxford University (Marshall Scholar), B.A., 1980, M.A., 1985; Yale College, B.A., magna cum laude, 1975. The author is grateful to the John Mercer Langston Black Male Law Faculty Writing Workshop and to family and friends who edited and commented on drafts. The author acknowledges the generosity of the Henry F. Bonura, Jr., Family, the Alfred T. Bonomo, Sr., Family, and the Rosario Sarah LaNasa Memorial Fund. The author is eternally grateful to the staff of the Harvard Law Review for their thoughtful and insightful recommended revisions of this Essay, which were incorporated herein.