THE founding principle of affirmative action was fairness. After years of oppression, it seemed folly to judge blacks by the same measures as whites.
“You do not take a person who, for years, has been hobbled by chains and liberate him, bring him up to the starting line of a race,” President Lyndon B. Johnson said in a 1965 speech that laid the groundwork for affirmative action, “and then say, ‘You are free to compete with all the others,’ and still justly believe that you have been completely fair.”
Given this history, it was striking to watch the 80 minutes of Supreme Court oral arguments about affirmative action on Wednesday. With the courtroom overflowing, filled with people who ...view middle of the document...
With affirmative action boiled down to a diversity program, it finds itself in retreat. Five of the six states that have held referendums on racial preferences have banned them, including California and Florida. The Supreme Court limited the legal forms of preferences in 2003 and suggested that they had only 25 years left. Based on last week’s oral arguments, and the fact that Justice Anthony Kennedy has never voted to uphold preferences, the court may restrict them further or forbid them.
Yet supporters of affirmative action do not necessarily need to despair. They still have a path open to them, one that remains legal and popular. It involves resurrecting Johnson’s vision of an affirmative action program based on fairness, which the Rev. Dr. Martin Luther King Jr. also favored.
The crucial choice that affirmative-action proponents made long ago was to focus the program on race rather than more broadly on disadvantage.
There were some obvious reasons to do so. Americans have never been comfortable talking about class. It reeks of the social order the country rejected at its founding (Britain’s) and of the economic system the country spent decades fighting (communism). But race was an undeniably American problem, from slavery to civil rights to the discrimination that, according to voluminous social-science research, lingers.
By forgoing a broader view of disadvantage, colleges lost the ability to claim that their overriding goal was meritocracy. “That was the key moment, when they forfeited fairness,” Richard D. Kahlenberg of the Century Foundation, who has written a book about affirmative action, told me.
Institutions using affirmative action could not claim to be bringing everybody — rich and poor, white and black, native and immigrant — up to the same starting line, in Mr. Johnson’s formulation. They instead were creating a system that depended on racial categories.
From a legal perspective, the decision made the supporters’ task harder. The very laws intended to address the country’s racial history set a high bar for any race-based system. In its first major affirmative-action ruling, the Bakke case of 1978, the Supreme Court rejected the notion that society-wide discrimination justified preferences for individuals. The court reaffirmed that finding in 2003, while also reaffirming that diversity was a legitimate rationale.
It is impossible to know whether affirmative action could have had a more enduring foundation were it based on a broader equal-opportunity approach. Proponents never tried this alternative. Courts, however, have consistently upheld socioeconomic preferences. Had black and Latino students been benefiting from those preferences, as many would, at least some portion of affirmative action might be in less peril.
But the liberals behind the great successes of the civil rights and women’s movements never showed as much interest in economic diversity. On college campuses, administrators have...