Why Affirmative Action Won’t Die
8th August 2023
A feeling of triumph has flushed through the conservative ranks this summer with the Supreme Court’s blockbuster decision in Students for Fair Admissions (SFFA) v. Harvard College and SFFA v. University of North Carolina to invalidate Harvard’s and UNC’s affirmative action programs. And it’s true that there is much in the SFFA opinion to celebrate. But the decision will not end, or even do much to threaten, affirmative action programs. As I have explained elsewhere, unless we get a legal and cultural paradigm shift in how we think about diversity and the civil rights regime, affirmative action is here to stay.
Three Generations of Affirmative Action, Two Generations of Erroneous Predictions
There is a kind of affirmative action amnesia that sets in at such moments, causing us to forget how long the practice has been in place and how many times we have erroneously predicted the program’s demise. In a 2021 law review article, I demonstrated how, although affirmative action in higher education can be traced to the beginning of the civil rights revolution in the late 1940s, scholars have been consistently and erroneously predicting the demise of affirmative action for nearly 50 years. To illustrate how often scholars have erred on this point, I began the article by collecting a sample of publications, dating all the way back to 1978, predicting the end of affirmative action. This sample constituted over 50 citations and took up several pages of law journal space.