What Will Overturning Affirmative Action Mean For All Women?
Note: UC's Fall 2023 admissions data, published shortly after our article, shows a record number of minority admits. It should be noted, however, that these students would have applied prior to November 30, 2022, over six months before the SCOTUS decision.
It’s no secret that affirmative action has been the center of controversy for decades now. Some love it, while many others hate it. But how many of us actually understand it? Affirmative action is a program that has long been misinterpreted, and those interpretations, in part, likely played a role in the Supreme Court’s recent decision to declare this diversity program unconstitutional.
Let’s take a look at exactly what affirmative action did for all Americans, including all women, and what an affirmative action ban means for college admissions.
When Was Affirmative Action Passed?
Affirmative action–as we know it–is the child of multiple policies and programs that slowly merged over time. While the term “Affirmative Action” first appeared in the National Labor Relations Act or Wagner Act of 1935, the idea itself was initially proposed in 1865’s “Forty Acres and a Mule” promise. While that 1865 proposal–which sought to distribute land and goods to freed slaves–was never adopted into practice, the Wagner Act was passed in July 1935 and established protections for unionized workers. From 1929 to 1939, the number of women union members tripled, a figure that is largely credited to the protections provided for in this Act. But that’s not the full story.
In actuality, it was both white men and women who were the first–and only–beneficiaries of affirmative action, given that at the time, minorities of all genders were prohibited from joining unions and therefore could not benefit from its implementation.
The outcome of the Wagner Act was clear; it set the precedent for whom affirmative action would benefit most even today: white women. Yet even still, this was more than solely a race-based policy.
Affirmative action continued to develop over the decades, across presidencies, and throughout intense national debates. It eventually blossomed into Executive Order 11246, issued by President Lyndon B. Johnson, on September 24, 1965, which declared, in part, that “The contractor will take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, color, religion, sex or national origin.”
In simpler terms, affirmative action began as mandated positive discrimination in the workplace, in an effort to protect women, religious minorities, racial minorities, and immigrants. Today’s affirmative action policy–or rather the affirmative action policy of yesterday–additionally included positive discrimination enforcement at higher learning institutions.
What is Positive Discrimination?
In the United States, positive discrimination is synonymous with affirmative action, a practice often achieved when employers or universities “preferentially” seek out those within minority groups. In this context, and solely by this overly simplified definition, you can see why there is so much controversy surrounding affirmative action.
You might be asking: How is it fair to “preference” one group over another? Isn’t that the same thing as plain ol’ discrimination?
In truth: No, and here’s why.
Historically, employers and universities consisted primarily of white men, meaning that all other groups–including all races of women—were all but invisible within these spaces. Does this mean that only white men were qualified to enter or enroll? Of course not. Rather, it was this group of men for whom the “easiest” access was had because they were also the same group who faced the least discrimination. By “preferentially recruiting” women, POCs, and queer folk, these spaces were taking proactive steps to better ensure that all qualified persons could apply and be accepted, despite belonging to marginalized groups.
Positive discrimination, or affirmative action, is meant to ensure diversity. You can think of affirmative action as a balancing tool–something that works to make all things equal. This action works to make sure that women, minorities, and all other marginalized groups can be equally represented in the workforce and in higher education institutions. It is not a policy intended to oppress or prejudicially treat any one specific group, as would be true if applying the textbook definition of discrimination.
Who Benefits From Affirmative Action?
In what seemingly has become the most persistent and prevalent myth regarding affirmative action, it has been ridiculed as a race-based policy that enables unqualified minorities–usually in reference to African Americans–to enter spaces that they do not deserve. This rhetoric is at the center of the vast majority of debates on the topic and is, in part, what was the driving force behind the most recent lawsuit against Harvard University and the one that ended affirmative action.
Yet, the reality is that affirmative action has been a policy that has benefited white women most, in both the employment and education sectors, a fact widely purported by both scholars and experts. There are two notable reasons for this: the consequences of intersectionality and the rewards of affirmative action.
Kimberle Crenshaw, the scholar who also originally coined the term ‘intersectionality,’ notably mentioned how white women were at the core of affirmative action, despite the popular misconception that Black people and other minorities unjustly benefited from the program. In support of this, Victoria M. Massie went on to explain that, in 1995, the Department of Labor published a report that “found that 6 million women overall had advances at their job that would not have been possible without affirmative action.”
While it is also important to note that the exact racial makeup of this and similar reports is hard to determine, we do know that the same study reported that while more than 10,500 African Americans (of all genders) held managerial roles in the aftermath of affirmative action, 57,250 white women also held similar positions. These numbers alone show us that, while affirmative action does provide benefits to minority races, it does not do so at the same rate in which it also provides benefits to white women.
What Brought Affirmative Action To The Supreme Court?
In 2014, conservative activist and legal strategist, Edward J. Blum, founded the nonprofit membership group, Students for Fair Admissions (SFFA), whose motto is as follows, “A student’s race and ethnicity should not be factors that either harm or help that student to gain admission to a competitive university.” The group believes that affirmative action’s proactiveness for racial diversity in college admissions to be both “unfair, unnecessary, and unconstitutional.” Swiftly following their formation, SFFA filed suits against both Harvard University and the University of North Carolina-Chapel Hill, before later filing a similar suit against the University of Texas at Austin.
SFFA’s lawsuits were widely publicized, and the group utilized accosted, rejected applicants to propel their fight: Abigail Fisher, a student whose application to UT Austin was rejected, argued that she was only denied admission to the esteemed school because they preferred nonwhite candidates, and Calvin Yang, a rejected Harvard applicant, who represented a “loud minority” of Asian Americans who believed that race-conscious admissions made it harder for members of their community to be accepted into prestigious institutions.
In 2021, after losses, dismissals, and rejected appeals of these lawsuits, the anti-affirmative action group petitioned the Supreme Court to review their lawsuit against Harvard. In 2023, Students For Fair Admissions, Inc v. President and Fellows of Harvard College was heard before the Supreme Court justices. In a 6-3 decision, SCOTUS made its landmark decision to overturn affirmative action, holding that both “Harvard’s and UNC’s admissions programs violate the Equal Protection Clause of the Fourteenth Amendment.”
Further, the Court went on to cite the precedent established in Brown v. Board of Education, that “...the conclusion reached by the Brown Court was unmistakably clear: the right to a public education ‘must be made available to all on equal terms.’ 347 U. S., at 493. The Court reiterated that rule just one year later, holding that “full compliance” with Brown required schools to admit students ‘on a racially nondiscriminatory basis.’”
While the recent Supreme Court’s decision was shocking, it shouldn’t be all that surprising. Over the past several decades, a number of Americans have been fighting for the reversal of affirmative action. In more than eight states, the race-conscious policy has already been banned with “troubling” results, demonstrating the negative impact that both a lack of race and diversity-conscious admissions have on minorities. Still, the decades-long efforts to end affirmative action have finally succeeded with the help of the now conservative-leaning SCOTUS.
What Does A Country Without Affirmative Action Look Like?
What’s interesting to notice about a world without affirmative action is how it impacts marginalized communities even before submitting applications. Speaking with NPR, Zachary Bleemer became just one of the many experts who found that a lack of affirmative action policies acts as a “deterrent” where minorities are “discouraged from applying,” based partly on the perception that the institution will not accept them or adequately represent them. Though Bleemer’s study focused on race-conscious admissions (and lack thereof), other scholars found the same trend to be true for women. Women are often less encouraged to apply to spaces if it is perceived that they will be underrepresented or unprotected in that space.
In 1996, California infamously banned affirmative action with 55% of state voters voting in favor of Proposition 209. Even as recently as 2023, California universities still have not recovered from this legislation as campuses remain less diverse now in the aftermath of Proposition 209 than they did while affirmative action was still in effect. UC enrollment statistics, as shown in the table below, demonstrate that both African Americans and Native Americans were most affected by the removal of affirmative action.
UC Enrollment from 1990-1999, IPEDS Fall Enrollment Surveys
In November of 1996, the same fall that saw the passage of Proposition 209, the University of California’s enrollment class consisted of just 3.9% African Americans and approximately 1% Native American students. By 2006, those numbers had fallen to 2.9% and 0.6%, respectively. In 2022, while African American fall enrollment had risen marginally to 4.5% (a figure still less than in 1990-91), enrollment of Native American students had shrunk to just 0.5%.
In light of the recent lawsuits, the UC system went as far as submitting an amicus brief to SCOTUS in support of Harvard and UNC’s race-conscious admission efforts, concluding that “..in a Nation where race matters, universities must maintain campus environments that enable them to teach their students to see each other as more than mere stereotypes.” This brief contended that affirmative action protects diversity, in turn both decreasing prejudice and discrimination against minorities. Still, this issuance of support was ignored by a conservative Supreme Court majority whose recent ruling effectively eliminated any precautionary measures that had been put in place to help women and all minorities gain access to the spaces that they deserve.
What Are The Myths Surrounding Affirmative Action?
Affirmative action can be perceived as bad if you choose to believe the misconceptions surrounding it and not the facts that support affirmative action as a means to diversify the United States around us.
Myth: Affirmative action is only about race
Fact: Though politics and the media have chosen to hyperfocus on the racial diversity established within the policy, at its core, affirmative action focuses on all diversity. A total ban on affirmative action could mean a total ban on all positive discrimination for all marginalized groups.
Myth: Affirmative action used quotas
Fact: The use of racial quotas has been illegal since 1978.
Myth: Women will not be impacted by an affirmative action ban
Fact: Research has shown that all minorities are less likely to apply or enroll in higher learning institutions without affirmative action in place. This means that minority women are likely to be most immediately impacted by the ban.
It is important to note that SCOTUS’ landmark decision primarily focused on just one aspect of affirmative action: race-conscious college admissions. However, by declaring race-conscious admissions of affirmative action unconstitutional, the court has set a concerning precedent. If one aspect of diversity and inclusion is illegal, will all be made illegal? And will it be limited to just educational institutions or will we see the effects ripple to other areas of our lives?
The question is this: Just how soon will we see women, who are now increasingly at risk of being denied access to spaces in education, be denied access to the workplace as well?