In this Congress, Democrats should brace for a fight on Affirmative Action

Though many people were rightfully relieved at the mixed outcome of the 2022 midterms, civil rights advocates who closely follow the Supreme Court know that we are still not out of the woods in the fight for our multiracial democracy. 

Though it would be easy to convert our relief from November into complacency now that Congress has returned, Democrats who kept their seats need to use this moment to proactively confront right-wing extremism and promote the tools we already know work in creating more equitable outcomes for traditionally marginalized Americans. 

This includes affirmative action — which Democrats should not only defend but also work to actively reclaim as an issue of critical importance in reaching our goals for equality and equal protection under the law. 

It is rare to see a politician, regardless of how progressive they are, go on the offensive when it comes to making a public case for affirmative action. And we should be honest about why: Since the 1960s, of all the right-wing attacks on civil rights, the strategic campaign from conservatives to galvanize white America against affirmative action, even white women who have benefited from it, has been among their most successful efforts.  

Conservatives have succeeded at reframing affirmative action as policy that takes away opportunity from white people, as opposed to what it really is —  policy that aims to rectify the centuries-long damage from systemic racism, which is as old as the foundational documents of this country. 

What is more alarming is that, simultaneously, conservatives also have succeeded in their decades-long project of reshaping the federal judiciary, all the way up to installing a high court that appears poised to strike a lethal blow to affirmative action as we know it.  

Without the backstop of a federal judiciary oriented toward upholding civil rights, and without creating a better societal understanding of why affirmative action matters to millions of Americans, the table is now set for House Republicans to continue to steer this national debate in the wrong direction when they take power in January. We’ve already seen misleading legislation aimed to dismantle affirmative action introduced by a House Republican who is also an election denier (do not think for a moment that these two conditions are unrelated). With a divided Congress, these bills will not become law, but House debate and passage of legislation designed to continue to turn the tides against righteous policy will have a damaging impact. And it could be lasting.  

I can assert these claims from two distinct vantage points: first, as a professor of American politics and constitutional law; and, second, and in my mind, more important, as a beneficiary of affirmative action.  

It is more important, to me, to declare this second truth because too few people are willing or proud to state this fact about themselves. The conservative attacks on affirmative action are meant to make Black Americans like me feel less deserving of opportunities because we benefitted from effective policy. They want the burden of guilt to fall on individual Black Americans as opposed to racist systems. Conservative attacks on public education and anti-racist ideas like critical race theory are meant to keep marginalized Americans from understanding history and how racist systems impacted their past, present and future. They want to deprive potential beneficiaries of affirmative action of the historical context to understand that these burdens are not on them as individuals but on the laws of the country in which they live. 

The fight for the promise of a multiracial democracy can feel overwhelming for those committed to taking it up. But a first step in creating a movement behind affirmative action, which is critical to a thriving democracy, is for those who have benefitted from this policy to declare proudly that they did. Supreme Court Justice Clarence Thomas tries to denounce affirmative action because he thinks it makes Washington elites view him as less equal, but this is more a reflection of his own destructive views of himself and of politics than of the reality Black Americans face. And yet affirmative action is what put him in the position to take this protection away from us. 

Affirmative action acknowledges the disparate effects that racism has on traditionally marginalized Americans. As Justice Blackmun wrote in 1978 in Regents of the University of California v. Bakke, the decision Thomas himself is poised to overturn this year: “To get beyond racism, we must first take account of race. There is no other way. And, in order to treat some persons equally, we must treat them differently because we cannot — we dare not — let the Equal Protection Clause perpetuate racial supremacy.” 

The debate surrounding affirmative action should not be about whether people of color should be the beneficiaries of “preferential treatment.” It should be about the need to dismantle discriminatory policies built into damaged American institutions, ones that are broken but worth saving.   

We need leaders who believe in fairness and equality to say so. 

Luke C. Harris is an associate professor of American Politics and Constitutional Law at Vassar College and the co-founder of the African-American Policy Forum.