The Supreme Court will hear cases against Harvard and the University of North Carolina, which could make race-conscious admissions policies unconstitutional. Revisit Nicholas Lemann on the convoluted history and uncertain future of affirmative action.
Affirmative action has always been racially motivated, and it has produced the intended result: universities have become significantly more integrated. That has helped to increase racial integration, from a very low baseline, in the places where a degree from such universities is a meaningful credential—corporate America, Wall Street, Silicon Valley, and so on.
Robert Comfort, Powell’s law clerk, reflecting on Powell’s decision in the Bakke case, said, “It was not the most elegant piece of legal reasoning, but it was the right result. The mainstream-press reaction to the decision was overwhelmingly positive. We had saved the country from another civil war. The academic reactions, on both sides, were very harshly critical. Sometimes the right answer is not the intellectually defensible answer. It’s not the lawyerly answer. It’s a compromise.
I asked Starr to imagine that she had been Lewis Powell’s law clerk in 1978, assigned to draft his opinion on affirmative action. What would she have said to him? “I think the decision he wrote still has some merit,” she said, “but there are also some considerations that were not permissible at the time. The law is a lagging indicator of society. There is a chain of causality from one decision to the next, so we see the accumulated weight of past decisions.
. The California State University system has more than four hundred and fifty thousand students, nearly half of them people of color. California’s community colleges have more than two million students, most of them people of color. Starr often mentioned these systems in our conversations, conceding that Pomona has fewer than fourteen hundred students, eleven per cent of them Black and eighteen per cent Hispanic.
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