This week, the major affirmative action case of the Trump era, Students for Fair Admissions v. Harvard, is moving through the appeal process.
In September 2019, a federal judge upheld Harvard College’s admissions program against a challenge from Edward Blum, who also brought Abigail Fisher’s unsuccessful case against the University of Texas at Austin. Blum is the president of Students for Fair Admission, an organization with the mission “to eliminate the use of race and ethnicity in college admissions.”
In court filings, lawyers for SFFA argue that Harvard’s admissions program, which aims to treat race as one of several factors in a holistic review of applicants, is flawed and must be stopped permanently—no matter that this may result in far fewer black, Latinx, and Native American students.
Even if Harvard’s admissions process has flaws, though, that doesn’t justify ending affirmative action altogether. Affirmative action doesn’t need to be perfect in order to be valuable and worth preserving.
This insight is grounded in the field of “transitional justice,” which helps societies deal with traumatic histories. This field teaches us that measures implemented to address massive human rights abuses are often less than ideal; perfect solutions are not achievable when transitioning from a deeply flawed world of oppression. Such measures are still needed, however, because doing nothing about the legacies of past wrongs is often worse than doing something imperfect.
As I show in my research, lessons from transitional justice have particular relevance for the United States, which is still reckoning with the legacies of slavery and segregation. In fact, some of these lessons are reflected in legal decisions about racial equality.
The U.S. Supreme Court has recognized that transitional practices aimed at integration may be imperfect. In its 1971 decision in Swann v. Charlotte-Mecklenburg Board of Education, the court openly acknowledged: “The remedy for such segregation may be administratively awkward, inconvenient, and even bizarre in some situations and may impose burdens on some.”
However, “all awkwardness and inconvenience cannot be avoided in the interim period when remedial adjustments are being made to eliminate the dual school systems,” the court went on to say. In other words, any shortcomings of current affirmative action policies point to ways that we can improve future iterations to become more inclusive, not less. These shortcomings are better understood as the challenges of overcoming past segregative practices, not as grounds for rejecting present integrative measures.
The decision in Students for Fair Admissions v. Harvard echoes this integrative reasoning. In last year’s ruling, District Judge Allison D. Burroughs of the U.S. District Court for Massachusetts concluded that Harvard does not discriminate against Asian Americans in its admissions process. She noted that Harvard’s admissions process would benefit from implicit bias trainings for admissions officers, further guidelines on the use of race in admissions decisions, and attention to significant race-related disparities in ratings.
But an admissions process doesn’t have to be “perfect” in order to be constitutional, and Harvard’s process had met the relevant legal standards. “There is always the specter of perfection, but strict scrutiny does not require it,” Burroughs wrote, adding that “a few identified imperfections” do not render Harvard’s admissions program illegal.
Ultimately, retaining affirmative action, despite its imperfections, is necessary because it will help the United States transition to a society in which affirmative action is no longer needed. “The rich diversity at Harvard and other colleges and universities and the benefits that flow from that diversity will foster the tolerance, acceptance and understanding,” Burroughs wrote, “that will ultimately make race conscious admissions obsolete.”
Harvard is due to file its appellate brief in the U.S. Court of Appeals for the 1st Circuit on Thursday, with a response from SFFA to follow in early June. When that court—and ultimately the Supreme Court—considers this issue, the focus should not be on whether affirmative action measures are as perfect as possible, which neither law nor justice requires. Instead, judges should recognize that some imperfections are the unavoidable consequence of transitioning from the entirely corrupt world of segregation.
Since affirmative action has proved successful in diversifying American universities, courts should be wary of limiting affirmative action in ways that diminish its positive contributions. Instead of expecting affirmative action to be perfect, we should recalibrate our expectations about integrative solutions and make improvements where we can, not abandon the effective and legally sound solutions that are available to us.
Affirmative action may place burdens on or breed resentments among nonbeneficiaries and still be worth pursuing. Ultimately, backsliding into greater inequality and segregation leaves us in a far more imperfect world.
