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On Tuesday, The New York Times published a bombshell report stating the Department of Justice (DOJ) would begin investigating affirmative-action practices on college campuses.
The news rattled many in the higher education community, who thought the issue had been quieted last year when the US Supreme Court ruled in favor of affirmative action at the University of Texas Austin (UT).
The term “affirmative action” refers to policies which favor traditionally marginalized groups in decisions like college admissions.
The DOJ has since issued a statement that it had planned to review a single complaint of discrimination at Harvard University, not the policy as a whole, but its posting has reinvigorated a debate about the merits of affirmative action.
While proponents of affirmative action often cite diversity as one of its main goals, Harvard law professor Randall Kennedy thinks conversations about diversity distract people from the original goal of affirmative action: reparative justice for people who have traditionally been oppressed.
Kennedy believes that supporters invent excuses for why diversity is beneficial, but they don’t always make sense.
“Some of the claims that are made in favor of diversity are very questionable,” he said at a New York University-sponsored event in 2016 focused on race-based admissions at colleges.
Kennedy used a college astronomy class as an example. “If you’re in astronomy class, does coming from a certain place with a certain background really help out that much?” he asked. “Either there is a planet up there beyond the solar system, or not. That’s a fair point,” he said.
Kennedy points to the fact that affirmative action policy has changed dramatically since its emergence.
The concept of affirmative action dates back to the American civil-rights movement of the 1960s. Seeking to expand opportunities for minorities, then-President John F. Kennedy issued an executive order in 1961 that established the Equal Employment Opportunity Commission and used the term “affirmative action.”
The Supreme Court first heard arguments on affirmative action at US colleges in the 1978 case Regents of the University of California v. Bakke, which upheld the policy, as long as explicit racial quotas weren’t used.
The court gave deeper insight into its opinions on affirmative action in the 2003 decision Grutter v. Bollinger, which affirmed that use of race in admissions was acceptable as long as it was used to achieve diversity.
Justice Sandra Day O’Connor wrote the court doesn’t prohibit the use of race in admissions if its purpose is “obtaining the educational benefits that flow from a diverse student body.”
This was a departure from previous discussions of the aim of affirmative action to right historical wrongs, according to Kennedy, and a major misstep for affirmative action policies.
The “diversity rationale,” as he describes it, means that diversity must create some sort of benefit for the school system.
“Because diversity has been made to carry this heavy burden, the Supreme Court has engineered things in such a way that advocates are having to work overtime to come up with justifications that in some instances they cannot bear,” he said.