Transcript
Into America
BONUS: Understanding Affirmative Action
TRYMAINE LEE: In one of their most highly anticipated rulings of the year, the Supreme Court struck down affirmative action as was widely expected. Shortly before the decision came out, I had a conversation with a professor from the University of Pennsylvania Law School in my capacity as a TV correspondent for MSNBC. We talked about the history of this policy and the sticks, so I wanted to share this conversation with you here on the pod as well.
We’ll be covering the ruling and what it means more in the podcast soon. But for now, enjoy this bonus episode of Into America and check out msnbc.com for more coverage. And if you notice the audio quality is a little different, we did this interview one soon.
CARA MCCLELLAN: Hi, I am Cara McClellan. I’m Director of the Advocacy for Racial and Civil Justice Clinic at the University of Pennsylvania Carey School of Law.
LEE: So give us some of the history behind affirmative action, where did this idea come from. What was the early intention?
MCCLELLAN: Sure, affirmative action was originally enacted under executive order under President Kennedy and then under President Johnson. And initially, it was intended to have a provision for remedying the impacts of discrimination. This was during the Civil Rights era, right as the Civil Rights Act and other legislation was passing. And it was a recognition that it wasn’t enough after all of these decades of discrimination to just say, and now we’re equal and it’s illegal. Instead, there had to be some recognition of the ongoing legacy of discrimination when you’ve had this long history of slavery and then Jim Crow that impacts all aspects of American life.
LEE: And so how was affirmative action applied to academic institutions? And what was the impact?
MCCLELLAN: Essentially, what you had was decades of exclusion based on race and colleges and universities. The same ways that we had under the law is known as “de jure segregation” in public schools. There was also segregation in public universities and in private institutions of higher education.
And so essentially, the question was, how now do we move forward and provide opportunity when there has been this long history of excluding people of color and, in many instances, women as well from colleges and universities?
LEE: Did colleges and universities have the option to, you know, implement affirmative action or not?
MCCLELLAN: So that is correct. It was and has always been not required, but optional for universities to take into consideration that’s different from, for example, having a system that doesn’t consider merit, right? Sometimes there’s this misconception that affirmative action means not looking at merit. And instead, affirmative action is a very limited consideration of race within the pool of very highly qualified applicants.
LEE: How was affirmative action kind of literally changed the face of academia, especially in America?
MCCLELLAN: It’s had a dramatic impact. When we think about how our institutions historically, particularly elite institutions of higher ed, have been reserved for essentially white men and really been exclusionary spaces, we’ve seen increasing levels of diversity in many institutions of higher ed. And that is, in large part, the result of affirmatively considering race as one of many factors.
And so that has had a larger impact really on our country in terms of creating pipelines for opportunities for employment down the road. But it also has an impact in terms of us seeing that the promise of the American dream really can be open to everybody, right? When we have universities that don’t represent our country, it really causes people to question whether we have a meritocracy, whether we have a system where opportunities are equally available to everybody, because we know that talent is everywhere. But when our institutions of higher ed are exclusionary spaces and don’t reflect our country, it causes people to feel as if there are still barriers.
And the reality is that there are, but getting rid of affirmative action and taking our country back to a place where institutions of higher ed look like exclusionary spaces would really have an impact on us seeing the system of education as a legitimate system that’s open to everybody, and that is a meritocracy. And that would really undermine our democracy.
LEE: Is there a way for us to quantify the impact of affirmative action?
MCCLELLAN: That’s a complicated question because it is race and other factors are considered differently by different admission systems, right? We know that it has to be a limited or a narrowly tailored consideration of race, but in terms of how holistic admissions operates, it’s different by university.
What we do know, for example, in the Harvard litigation, the experts on both sides, expert for the defendants and expert for the plaintiffs, agreed that not considering race would lead to a substantial reduction in the number of underrepresented students of color on campus. And the numbers actually were that there would be a reduction by about 50% of underrepresented minority students at Harvard if race was not considered.
Without race-conscious admissions, we found that there would be more than 50% reduction in the number of black students on campus. And so, we’re talking about really changing the face of our institutions of higher ed, really limiting opportunity for hardworking students of color, and really that would impact, again, the legitimacy of these institutions as places that, you know, historically have been able to say that they really are places where the best and the brightest can come to shine. If we have these barriers that limit access for some students, that really undermines their ability to make that claim.
LEE: What are some of the misconceptions that folks have about affirmative action?
MCCLELLAN: One misconception is that affirmative action creates an unfair system. When in reality, the limited consideration of race through race-conscious admissions is a way of ensuring opportunity exists for everybody. Opponents of affirmative action will sometimes say that but for the consideration of race, our admissions system would be fair and equal in this country. But the reality is there are so many ways that racial inequality is baked into admissions.
And so just to give a few examples, if we think about legacy preferences, right, these are preferences for students applying to college whose parents have had access to that college in the past. Well, again, if we think about two generations ago who had access or even a generation ago, in some instances, we know there’s extreme racial disparities and that at some institutions, people of color were literally under the law barred from attending those institutions. So this creates a built-in preference for students based only on their background and in a way that excludes students of color.
To give another example, we know that standardized tests have been shown to be strongly correlated with the background of a student’s parents in terms of that student’s parents having access to Wells, for example, to obtain expensive SAT or ACT prep, but also that the SAT and the ACT have been shown to be strongly correlated with the student’s racial background. So why would we have a factor for admissions that we know to be correlated with these factors that don’t actually have to do directly with how students are going to perform in college, but more with the background of the student’s parents?
Another thing is that colleges and universities are considering factors that are so tightly correlated with experiences of inequality in K-12 education. So if we look at our K-12 schools, there continues to be high levels of racial and economic segregation in public schools. We know that black and brown students are more likely to attend a racially segregated school, and that schools that serve black and brown students are less likely to have access to resources, to funding, to highly qualified teachers, to AP classes or other advanced learning opportunities, to extracurricular activities. In some cases, even access to resources, like recess, are a disparity that exists based on the race of students in the building. And so, we really have an opportunity gap, not an achievement gap, but an opportunity gap in our K-12 education that impacts students’ ability to assemble the credentials to apply to competitive schools.
So if, for example, a university says, we’re going to rate students based on how many AP courses they’ve taken, and you are a student that attends a racially segregated school that is more likely to not offer AP classes, that is going to disadvantage you regardless of your talents and abilities. That, off the back, is going to be a disadvantage.
And so, because race continues to matter and students K-12 experiences, the idea that we would all of a sudden ignore race and act like it doesn’t matter at the moment that they apply to college is just unrealistic when the reality is that race shapes students’ educational experience so much during every other year in their educational experience.
LEE: What is the legal pushback against affirmative action looked like over the years? So the challenges to affirmative action have been based on constitutional arguments under the Equal Protection Clause, and most recently in the Harvard Litigation under Title VI, which is a civil rights statute that says that you cannot exclude or discriminate based on race.
And so the arguments that plaintiffs had made in the past is that the consideration of race has somehow disadvantaged them in the college admissions process or in other institutions of higher education, or that more recently after we understood what the precedent was as delivered by the Supreme Court in Bruder, so we’ve now had 40 years of a precedent making clear that you can consider race as one of many factors, so long as it is narrowly tailored to pursue the compelling interests and diversity.
Some more recent challenges have said, you know, a particular institution has not complied with the law by considering race in a narrowly tailored way. So that essentially is what the challenges have been.
And the Supreme Court, over and over again, has said, no, you can consider race. It has to be narrowly tailored. We know what the benefits of diversity are in terms of improving students’ educational experience, and providing a rigorous education, and preparing students for the workforce. And so that’s been clear for decades, and yet plaintiffs have continued to bring these challenges. And really what we’re seeing today is a direct attack on precedent.
LEE: You describe what’s going on now as an attack on precedent, but how vulnerable has affirmative action been in recent years?
MCCLELLAN: I think that many people are looking at, for example, the Supreme Court’s Dobbs decision, and seeing that this court is willing to reconsider precedent and that this isn’t an unusual time that we’re living in. And that is part of the reason that plaintiffs have brought cases challenging existing precedent.
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LEE: What’s at stake here? And why do you believe that affirmative action is still necessary today?
MCCLELLAN: What’s that stake is, first of all, equal opportunity, right? It goes to the very heart of making sure that our institutions of higher education are equal to everyone that we are considering the value of diversity as well. That is really at stake because the Supreme Court has made clear that diversity is a compelling interest and that we all benefit, receive the educational benefits of diversity when we are in a diverse institution, but the plaintiffs are really challenging that precedent.
LEE: When you consider the political ecosystem in which this conversation is happening, how much do you think is about, you know, good faith trying to actually balance things in academic institutions? And how much of it is about politics, do you think?
MCCLELLAN: Well, one thing I would say is that there, again, under this existing precedent is such a limited consideration of race, that the descriptions of affirmative action as being a determining factor are inaccurate because, already, the Supreme Court has so limited how we can consider race.
If we look at the record in the Harvard litigation, for example, one of the things that came to light through trial was that there are more applicants to Harvard who have a perfect SAT score and a perfect GPA than there are spaces in the entering class at Harvard. So just think about that for a second. It has to be the case that colleges and universities are considering factors besides just GPA and SAT and looking to say, what other ways can students contribute because there are so many highly qualified students.
And within that pool of highly qualified students, they’re looking at other things, maybe extracurricular activities. It may be the diversity based on race, it may be geographic diversity, it may be having diversity in other ways. But all of that is a part of a holistic admissions process. And race is just a very small factor within this very qualified group of students.
And so, to get to your question about politics, I think what we’re seeing is an attack on racial equity more generally, an attack and attempt to silence people’s ability to talk about the importance of race as an aspect of identity, but also as a key factor in how American society has historically been structured in the ways that systemic racism continue to matter. And so, I think that’s where the politics comes in, is this attempt to silence discussions about race and inequality and, instead, try to enforce a colorblind view of the world as if race still doesn’t matter.
LEE: And in the real world, even with these highly selective institutions, it’s not like they’re poor performing students who are allowed in the Harvard, black or otherwise, right?
MCCLELLAN: Exactly. And that came through during the trial that the students who are admitted are across the board, highly qualified, excellent students contributing in many ways. And that makes sense. That’s the reason that these institutions really see it as in their interest to admit a diverse class because they recognize the ways that these students have contributed once they’re on campus, have made the institutions better, and then have contributed to American society as they’ve gone off, taken on jobs, become leaders, benefited the corporations.
And that’s the reason why you saw so many amicus briefs in support of the continued consideration of race from Fortune 500 companies, from the military, from so many different aspects of American life. Industries and leaders came forward and said, we support the considered use of race and admissions because it creates a pipeline that benefits us down the road in American society.
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LEE: Professor McClellan, thank you. Thank you so much for your time. Really appreciate it. And I also have a podcast for MSNBC, and we’re working on something. I would love to maybe follow with you for that later on, maybe in a week or so.
MCCLELLAN: Sure, absolutely. And it’s great to meet you, and thank you.
LEE: Thank you.
MCCLELLAN: Thank you.
LEE: Take care.
MCCLELLAN: Thanks.
LEE: Thanks for joining us for this bonus episode of Into America. The podcast is produced by Isabelle Angel, Allison Bailey, Mike Brown, Aaron Dalton, and Max Jacobs. Original music is by Hannis Brown. Our executive producer is Aisha Turner. Production help from Mary Pflum.
I’m Trymaine Lee. We’ll be back next Thursday.