Expert Insights: Affirmative Action

Posted October 27, 2023

Development Guild’s Managing Editor Karin Shedd spoke with Timothy Welbeck, Esq., a civil rights attorney by training and Assistant Professor and Director of the Center for Anti-Racism at Temple University about the overturning of affirmative action in June 2023. Watch the video and/or read the transcript below to hear Professor Welbeck’s explanations of the policy, the implications of its overturning, and what nonprofit and higher education institutions should do now. 

Shedd: In June of 2023, the United States Supreme Court overturned affirmative action. 

Narrowly, this has an immediate impact on the admissions practices of 100 or so highly selective colleges & universities. But practically, it could have impacts way farther than that, in higher ed and in the wider world of nonprofits. 

To help bring clarity to this fraught situation, we sat down with Timothy Welbeck, a civil rights lawyer by training and assistant professor at Temple University. 

As consultants for a wide variety of nonprofits, we wanted to know: What problem did affirmative action seek to solve? Why was the fallout so intense? And, perhaps most importantly: what do we do now? 

So let’s just jump right in. In your own words, what is/was affirmative action? 

Welbeck: Okay, so affirmative action was a series of policies that, on its face, were seeking to address the centuries-long discrimination against black people and other marginalized groups from post-secondary education. 

The literal phrase “affirmative action” was mentioned by John F. Kennedy in an executive order in 1961, and he was addressing employment discrimination. But then, over time, within the next decade or so, the phrase was more readily applied to post-secondary education, particularly admissions practices. 

Affirmative action was mischaracterized in part because people often said things like it was giving unqualified black applicants a spot that a deserving white applicant would have received. And that’s not what was happening. What affirmative action was doing was giving people who were qualified but came from historically discriminated-against backgrounds an opportunity to have that discrimination considered. 

Shedd: How did it end up in front of the Supreme Court? And then what ended up being the decision and the reasoning for decision? 

Welbeck: So without getting into a lot of, like legal history, like I said, in 1974, there was a case, Bakke vs. Board of Regents of California. There was a gentleman who applied for medical school and he was denied admissions into all of the schools to which he applied. 

But one of the schools that he applied to had a quota system whereby they reserved a certain amount of spots for racial minorities. Even though he was denied admission to every other school that he applied to, he sued that school, saying that he was denied admission because they had a set-aside program for racial minorities. 

That set the groundwork. And the Supreme Court said that you cannot have a set-aside program, you can’t have a quota, but you can consider race among many factors. 

There were cases that challenged that going forward. But the Supreme Court continued to uphold this idea that schools can consider race among many factors. Long story short, there was significant backlash over time and people were mischaracterizing what affirmative action was and were seeking to undo it. There was an advocacy organization that came together, got some plaintiffs, got themselves before the Supreme Court and got a favorable composition of the Supreme Court. 

Shedd: So my understanding was that affirmative action in terms of admissions, I guess, was only used by 100 of the most selective universities. So if that’s the case, why was it that it made such a huge impact? Is it because those universities have an outsize impact on how the university system as a whole works? Is that something else? What was going on with that?  

Welbeck: The short answer is exactly what you said. These schools first have an outsized impact on the trajectory of higher ed admissions. And then, two, they are in many ways looked at as the prize of post-secondary education. And so, many people feel as though this is the holy grail to having a successful career and access to prestige and higher social standing. And so with that opportunity, then, there becomes a great competitiveness for it. People are nervous about that because, as you said, affirmative action has found its way into various hiring practices, either directly or indirectly.   

So the belief is that, now that the Supreme Court has overturned affirmative action at the post-secondary level, it might now have implications for the workplace as well. 

And Edward Blum, who is one of the people who was a leading advocate for overturning affirmative action and helped to lead Students for Fair Admission’s charge against affirmative action, has already said he’s coming against diversity, equity and inclusion programs, particularly within the workplace. 

Shedd: So I guess in that vein, do you have any advice for these institutions? Should they just continue to be careful and sit tight or is there something proactive that can be done? I don’t know. 

Welbeck: So you can be proactive. So as it relates to educational institutions, there are an array of different things that you can do. You can first begin by building relationships with the communities that produce these applicants from marginalized groups and helping to create pipelines for your institution from these various communities, whether you’re going into community centers, religious institutions, various feeder schools and the like.  

Also, you can do things that are racially neutral but still potentially have racial implications. For example, there are some schools that target people from certain zip codes and offer them financial assistance because people from those zip codes tend to be people from marginalized groups. 

Texas has a program called the Texas Ten Program, where if you graduate in the top 10% of your graduating class, you can receive automatic admission to the University of Texas Austin campus. And so, again, if things play out demographically the way people anticipated they would, you’re going to get something approaching an admitted class that is somewhere near the demographics of the school – of the state as a whole. 

So there are things like that that can be done. But it requires a concerted effort with, first, just valuing diversity, valuing an opportunity to correct past patterns of discrimination and being creative around those type of factors. 

Employers can do similar things – again, looking at where they’re recruiting and also even the types of things they use as metrics for success or barometers for excellence. Oftentimes we look at pedigree, where did you go to school, and those types of things. And that’s important, it is, but sometimes we undervalue relevant experience or other means that could be ways to create transferable skills to a particular position as well. 

So I think that’s how employers can do it. Recruiting and being careful about how and where they recruit – schools, building relationships among these communities and populations, and also being creative about ways that they can offer support.

Yes, we can and should try to have a rising tide lifts all boats from a socioeconomic standpoint. But we still should try to find ways to correct this past harm of racial discrimination, too. 


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