History Lessons on (Re)Claiming Affirmative Action's Roots

• In Event: Challenging Ahistoricism: Historical Methods in Critical Race Studies in Education

Abstract

On the brink of the 20th anniversary of California’s Proposition 209, which did away with race-conscious affirmative action; and in the shadow of the 40th anniversary of the Supreme Court’s iconic decision in Regents of the University of California v. Bakke (1978), this paper examines the importance of critical historical analysis in the examination of educational access and equity in higher education. Most specifically, through a critical race theory lens I employ both critical historical analysis and critical discourse analysis to examine the key role played by a select group of elite private universities in shaping contemporary affirmative action practices. Central in this exercise is understanding how current interpretations of affirmative action compare with original rationales. My focus on the “Ivy Briefs” is intentional for three reasons. First, while the submission of amicus briefs has almost doubled from Bakke to both Fisher v. the University of Texas cases, only a handful of parties have filed briefs in all four landmark cases. Indeed, every deliberation before the Supreme Court in the last half century concerning the future of affirmative action in university admissions has included a version of the Ivy Brief. Secondly, the prominence of the Ivy Brief in the Supreme Court’s Bakke decision not only exemplifies the Court’s tradition of deferring judgment to postsecondary institutions in matters necessitating educational expertise, it is also fundamentally responsible for establishing and fortifying the “diversity rationale” in defense of affirmative action in university admissions (discussed further in the next section of this chapter). Finally, although the Ivy Brief represented the voices and experiences of an elite group of private institutions, the “Harvard Plan” highlighted in Bakke and Grutter has set the paradigm for competitive admissions policies for the last four decades.

A central goal of this paper is to historicize and contextualize the contributions of the Ivy Briefs in framing race-conscious admissions policies in higher education. I describe how the Ivy Briefs influenced the fate of affirmative action in university admissions, and what lessons can be learned from them about framing the defense of affirmative action. By analyzing the original Ivy Brief filed in Bakke, as well as subsequent iterations of the brief submitted in Grutter v. Bollinger (2003) and Fisher v. University of Texas (2013), I attempt to demonstrate how race-conscious affirmative action has come to be decoupled from its historical roots, and the harms that have resulted from this decoupling. Furthermore, revisiting the original Ivy Brief in Bakke uncovers possible strategies for framing future lines of defense. At the core of this exercise is understanding how narratives, which have developed across a 40-year span, can impart new lessons and strategies about affirmative action’s history and purpose. These lessons and strategies can prove useful to higher education administrators, practitioners, and policymakers interested in the future of affirmative action policy.

Author

• María C. Ledesma, University of Utah