The ripple and residual benefits of affirmative action

Washington, DC – As early as this coming autumn, the United States Supreme Court will revisit the constitutionality of race and gender conscious admissions within the sphere of public higher education in the US. By granting a review of Fisher v The University of Texas, the country’s highest court has not only repositioned affirmative action at legal and political centre stage – during an election year, nonetheless – but has also signalled that the programme may be making its last stand.

Affirmative action has found itself enduring its greatest onslaught, and is clinging on to its very existence, since the election of the nation’s first minority (not only black) president. Beyond the dark irony, the spreading fiction that is “colour blindness” contends that race, culture and gender-conscious opportunity and access programs – or affirmative action – have run their course and are no longer needed.

The Fisher case returns the affirmative action debate from the court of political and public opinion back to the judicial chambers. For proponents of affirmative action, the presence of five conservative justices behind the bench foreshadows a grim result.  

Did the Supreme Court call up Fisher with the political interest of further eroding affirmative action, or altogether scrapping it?  

Or, in light of changes since 2003, when the Surpreme Court last reviewed affirmative action: economic decline, exacerbated racism and profiling on the streets and campuses of the US – as well as the rising tide of Islamophobia – will the court find that adopting reactionary-styled colour blindness clashes with an ever-more racially and politically polarised United States?  

As affirmative action revisits judicial scrutiny of the highest order, reflecting back on its journey and re-examining the rich mosaic of people it has opened doors for – including Arab and Muslim Americans of every stripe – this sleeping community of beneficiaries may be compelled to rally around it, as it prepares for what may very well be its last stand in front of the bench.  

Affirmative action: a brief history

Since its legal inception in 1965, under President Lyndon Johnson’s Executive Order 11246, affirmative action has blazed inroads for a broad range of disadvantaged communities, including women, and has created educational access that alleviated the de jure, de facto and structural inequities that plague people of colour. In subsequent decades, the courts emerged as the chief battlegrounds for assessing the constitutionality of race-, culture- and gender-conscious admissions programs.

Affirmative action was gradually eroded from its initial form in state and circuit courts, alongside the Supreme Court. In 1978, the Supreme Court in Bakke v The University of California held that express racial or gender quotas were unconstitutional, but maintained that race, national origin and gender were important factors in university admissions. The ruling engendered greater debate, pitting white privilege against the legal interventions that created educational pathways for disadvantaged groups in the US, and birthed “reverse discrimination” as a rallying cry against affirmative action. This rhetoric has served as a lynchpin that seeks to undo both historical and present-day inequality.

The debate culminated with the landmark 2003 Grutter v Bollinger ruling, which upheld the constitutionality of the use of “race in admissions decisions to further a compelling interest in obtaining the educational benefits that flow from a diverse student body”.

For proponents of affirmative action, Grutter was more consolation than victory. However, the period between Grutter and the Supreme Court’s grant of review in Fisher marked a shift from the courts being the chief battleground sites where affirmative action was debated, to the political and public realms.  

Courts to the ballot box

Starting in his home state of California in 1998, Ward Connerly and his American Civil Rights Institute spearheaded an effort by way of the ballot box to abolish affirmative action through anti-affirmative action referenda. Connerly’s campaign was pillared upon turning Martin Luther King’s call not to be judged “by the colour of my skin, but the content of my character”, on its head, juxtaposing it with its historical and racial context, amid financial support from conservative corporations and institutions.  

In line with this juxtaposition and de-historicisation, Connerly misleadingly titled his anti-affirmative action ballot proposals in ways that made it seem as if they furthered affirmative action and civil rights; a tactic which has since been mimicked by Tea Party Candidates, Glenn Beck and other conservative elements.   

Connerly and his allies further misrepresented the true racial picture of affirmative action by painting a black face on affirmative action. With his ideological legions, Connerly and the ACRI falsely claimed that affirmative action only served African Americans, and neglected to cite how it benefited a wide spectrum of communities in its application and spirit, most notably white women who were and are its greatest statistical beneficiaries. In addition, although Connery championed an intransigent brand of colour blindness, he hypocritically injected race and racism into his messaging, campaigning and fundraising strategies.   

By way of referenda, affirmative action was abolished in California, Washington State, Florida, my home state of Michigan in 2006, and also Nebraska and Arizona. Flagship public universities, including the University of Michigan, UCLA and UC Berkeley, witnessed an immediate downward spiral in student of colour enrollment that harkened back to pre-Brown v Board of Education figures.

This electoral tide seemed to wane with the failure of a copycat referendum that failed to make the ballot in Colorado, and Connerly’s well-documented legal problems seemed to slow the political campaigning against affirmative action. This stall, and Fisher, opened the doors for the Supreme Court to step back in to the debate.  

Arabs and Muslims  

In addition to creating inroads for students of colour and women, affirmative action also cultivated a culture of tolerance and multiculturalism across the country’s university and college campuses. Schools that were once the training grounds for privileged, middle and upper class whites were mandated – oftentimes against the interests of specific institutions – to integrate qualified black and brown, Jewish and foreign-born students.  

Many of these students hailed from the Arab and Muslim worlds, who were pushed from their homelands by political or economic forces or pulled to the US for educational opportunities. Students pursuing undergraduate and graduate degrees gravitated to the US from Iran and Morocco, Indonesia and Sudan and every nation in between, because schools’ admissions committees were moved to diversify their campuses, and ultimately, bought into the educational benefits of multiculturalism, cosmopolitanism and the educational value a broad spectrum of students brought to campus and the classroom.    

The injection of diversity into elite private schools, public universities and colleges had an impact far beyond the composition of the student body. Pioneering students from Black, Latino and Native American communities called for ethnic and areas studies departments, mobilised politically through identity-based student organisations and acted as ambassadors by spearheading admissions’ and outreach pipelines from their communities that funnelled the next crop of black, brown, indigenous, Arab and Muslim students.  

Beyond a simplistic understanding

There would be no Middle Eastern or Islamic Studies departments without African American or Latino Studies. Moreover, the administrative support and funding to support the creation of Lebanese American or Muslim Student Associations, nationally, were made possible by the sweat and strategy, sacrifices and steps taken by the first wave of affirmative action beneficiaries.  

Affirmative action also opened the door for English-as-a-second language (ESL) programmes in schools with immigrant-heavy communities. In cities including Detroit, New York and Chicago, which boasted new waves of immigrants from the Arab world, South Asia and African states, the multicultural aim of affirmative action leveraged ESL programmes as a critical bridge for foreign-born students towards college and university study in the United States.  

Before the California Civil Rights Initiative, the Michigan Civil Rights Initiative and their progeny were put into law, public universities, including those in the UC System, the University of Washington and the University of Michigan, instituted outreach programs in communities concentrated with Arab and Muslim populations. Under-represented nationality groups, from indigent and working class communities, such as my native Detroit, benefited from workshops and mentorship initiatives that – years after their institution – quadrupled the presence of Arab students at UM’s flagship Ann Arbor campus.  

The influx of US and foreign-born Arab and Muslim students on college campuses introduced new communities to schools such as the University of Michigan, Harvard or San Francisco State University, which brought forth cultural, programmatic and curricula progress. Arab and Muslim student organisations proliferated in size and number across the country, which created new platforms for political organising and advocacy that mainstreamed issues of importance – including Palestine, US intervention in the Arab world, the Iranian revolution and its aftermath, apartheid in South Africa and more.  

The mobilisation of this new crop of Arab and Muslim students – who walked into the door opened by affirmative action programmes – navigated coalitions with other students of colour, women and issue-based groups, and, in addition, made demands that mirrored those of their predecessors. A critical, but rising, mass of Arab and Muslim students demand that Arabic language courses be taught at public universities, Islamic Studies be offered in the curricula of liberal arts schools and that authentic voices that deviated from the Orientalist school of thought teach such courses. 

Thus, affirmative action programs were the primary catalyst that led to the hiring spike of Arab and Muslim professors. These new hires attracted a proliferation of applications from Arab and Muslim students, most notably outside of the US, who were attracted to the receptive curricula and the cultural tolerance for Arab and Muslims cultures they brought to elite colleges and universities.    

Affirmative action is the very seed that led to the establishment of Middle Eastern and Islamic Studies Programs, Arab Language Institutes and university-based think tanks. Anchored by an Arab-dominated community, the University of Michigan’s Dearborn campus established the nation’s first Arab American Studies Program, pillared upon the financial gains, cultural contributions and academic demands made by its Arab students over the years.  

Years after the creation of the Arab American Studies Program, Michigan’s Arab American communities stepped up in defence of affirmative action, against Proposal 2. Mobilised by the African American Policy Forum and the American Civil Liberties Union, community nonprofits, including ACCESS and the Arab American Political Action Committee, galvanised their constituents, marshalled their resources and embraced their status as beneficiaries of affirmative action against Connerly.  

This marked the first time Arabs visibly organised in support of affirmative action, creating a trail for Arabs and Muslims in the US to follow, as the review of Fisher – and the continued battle after it – fast approaches.  

The final round of the fight

The forthcoming Fisher case not only marks a return to the Supreme Court, but also a new era in the affirmative action fight.  

“It’s our responsibility, as we go into this new era to remember the yearnings of the marginalised, and to work with the renewed hope that their aspirations will not be buried under the premature claims that this a ‘post-racial’ era,” writes UCLA and Columbia Law Professor Kimberle W Crenshaw.  

After enduring post-9/11 profiling, ethnic and cultural animus and swelling Islamophobia, Arabs and Muslims can collectively agree that today’s post-racial moment is nothing more than a fictitious chapter of US history, with a strategically canvassed cover. Arabs and Muslims are racialised as menaces, and portrayed as “others” in an era when race is said to no longer matter.

Arabs and Muslims must look beyond this cover, and read the extensive pages of evidence that document how they have benefited from affirmative action since its inception, up to its current form – and raise their voices among the ensemble of beneficiaries in support of affirmative action before, during, and after the Fisher ruling.   

Khaled Beydoun is a Washington, DC-based attorney. 

Follow him on Twitter: @Legyptian