Affirmative Action: Whatever the SCOTUS Decision, Two Lessons Highlight Its Likely Demise

By the time you read this, it may well be that the U.S. Supreme Court has rendered its decision on affirmative action and has, after almost 50 years, decided that even a partial consideration of race as a basis for college admission is unconstitutional. But even if the program is allowed to continue in a limited capacity, the weakness of the current law will have been revealed.

The one area of agreement between the pro- and anti-affirmative-action program advocates is a general assertion that diversity is inherently good for all institutions and is an inherently American goal. But what is diversity? “Most Americans seem to think affirmative action… does something significant for poor Black kids,” writes Bertrand Cooper, an African American, in this month’s Atlantic Ideas article “The Failure of Affirmative Action.” “The Supreme Court affirmed race to be an acceptable criterion within a holistic admissions framework in 1978. The regime persisted for 45 years without manifesting any progress of note for the Black poor,” Cooper writes. “In 2012, six percent of Harvard’s freshmen identified as Black – “a far cry from racial parity when at the time, Black Americans made up 14 percent of the population and 15 percent of the country’s young adults (the percentages are slightly lower now).” But by 2015, by using race-based affirmative action as an admissions criterion, Harvard reported that more than 15 percent of incoming freshmen were Black. The university had acquired perfect representation.”

But did that make Harvard more diverse? This became the question in 2015 when affirmative action again came up for review by the Supreme Court. Not in terms of poverty, class, or economic-social background, many argued. “Only seven or eight of said 154 Black freshmen would have come from poor families”, Cooper writes. “The other 140 or so Black students at Harvard were likely raised as far from the bottom as any Black child can hope to be. In addition, 40 percent of Black students in the Ivy League were first- or second-generation immigrants -- the highest-earning and best-educated subset of Black America today.”

The lesson of affirmative action and similar race-based improvement programs enshrined in U.S. law and subject to constitutional review is not to not try for equity in college admissions. It is to avoid the two failures in the legislation that doomed affirmative action: a failure to specifically define the goal outside of nebulous referrals to “diversity” and “reaching critical mass.” And that leads to the second failure: no measurable, visible goal of success. Is parity a goal? Parity with what? A national population statistic including highly educated foreign born students of color? A state statistic? (California’s black population is currently 5.8 percent; should state colleges be limited to that as their black admissions goal, with more than 40 percent Hispanics?)  This reporter has been unable to find a measurable definition of “critical mass” from constitutional lawyers at conventions of the liberal American Constitutional Association or the conservative Federalist Society.

No end point or achievement goal of affirmative action has ever been specified. Instead, liberal Supreme Court Justices Ruth Bader Ginsburg, Steven Bryer, and the swing voter Supreme Justice Sandra Day O’Connor concluded in 2003 in a case heard in conjunction with Gratz v. Bollinger, 539 U.S. 244 (2003) that “race-conscious admissions policies must be limited in time,” and that the “Court expects that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.” “The coming eulogies for affirmative action should acknowledge this history,” writes Cooper. “No policy that hesitates to say class prioritizes the impoverished.”

What Spanish/Spanglish Do You Speak?

The U.S. Hispanic population reached 62.5 million in 2021, up from 50.5 million in 2010. In 2021, Hispanics made up nearly one-in-five people in the U.S. (19%). This is up from 16% in 2010 and just 5% in 1970. How does this affect the use of the Spanish language in the U.S.? According to the Pew Hispanic Center, the number of Hispanics who report speaking Spanish at home has grown from 24.6 million in 2000 to 39.3 million in 2021. But the percentage of Latinos who speak Spanish at home declined from 78% in 2000 to 68% in 2021. That leaves the question, What Spanish? “Each wave of Spanish speaking immigrants from different countries who tended to cluster together in different states, tended to localize the Spanish/Spanglish spoken in different areas, according to Amherst professor Ilan Stavans, “As mobility, assimilation and intermarriage increase, a standard Spanglish is starting to dominate. “Localisms tend to disappear in favor of a more neutral parlance.”

The Hispanic Vote & Immigration

It seems Washington DC and Capitol Hill leaders and journalists still believe that Latinos and American Hispanics think in one direction on the issue of immigration – towards loose borders and low enforcement of immigration laws. The Washington Post recently was seen tying itself up in knots to explain why an increasing number of Hispanic heritage voters favor Republicans who tend to support strong border enforcement, even deportation as a means to control mass illegal entry. “They’re confused,” it seems the Washington Post has decided. On June 17, a Washington Post front page headline read: “They (Hispanics) support DeSantis but not his law on immigration,” referring to his new state law that makes it illegal for employers to hire workers without authorized work permits. “You can’t build a strong economy based on illegality,” DeSantis often says (how does one enforce a minimum wage standard if employers are allowed to employ workers under the table?). Increasing numbers of Florida immigrants seem to agree.

To confuse Washington even more, in May, two Hispanic congressional representatives – one a Democrat from Texas, Veronica Escobar, and one a Florida Republican, Maria Elvira Salazar – made national news and confusing headlines by introducing a “strong bipartisan common sense compromise” immigration bill. The bill would grant amnesty to immigrants living and working in the country illegally if they had been here five years, pass a strict criminal background check, and pay $5,000 in restitution over seven years as well as a 1.5 percent payroll tax to gain a legal work permit. They would receive no federal benefits during the restitution time. Salazar believes she can convince members of the staunchly conservative Freedom Caucus to support it, while Escobar, a member of the Democratic liberal Progressive Caucus, is determined to convince them to support it.

Are diversity and compromise to be the symbol of the new Latino legislator and voter?