It’s no secret that the United States has a long history of discrimination and inequity. Whether you look at the history of education, employment, or housing, the story is largely the same. For decades, people of color and other marginalized groups have been excluded from the benefits of the so-called “American Dream.” In response, a number of affirmative policies and programs have been formed in an effort to combat past harm and allow for more equitable access to opportunity. The recent Supreme Court decision to strike down affirmative action prompts us to reflect on the reasons that affirmative policies are needed in the push for equity in education, housing, and all aspects of society.
Affirmative Action and the Push for Educational Equity
When you hear the phrase “affirmative action,” what comes to mind? Do you think of a policy designed to level the playing field and allow historically marginalized groups to have equal access to opportunity? Or maybe you’re more familiar with the stigma associated with affirmative action? A common – yet inaccurate – argument used against affirmative action is the claim of “reverse-racism,” or that the policy gives an unfair advantage to people of color, while disadvantaging white people. In order to truly understand affirmative action, why it was created, and why this stigma is inaccurate, we need to take a look back in history.
Today, we most often refer to affirmative action in the context of higher education, but its origin is actually rooted in employment law. The phrase “affirmative action” was first used on March 6, 1961, when President John F. Kennedy signed Executive Order 10925. This order established the President’s Committee on Equal Employment Opportunity and required government contractors to “take affirmative action to ensure that applicants are employed and that employees are treated during employment without regard to their race, creed, color, or national origin.” This action was an important step in addressing employment discrimination, but employment was certainly not the only area in which discrimination was occurring.
Residential segregation and then-legal forms of discrimination resulted in massive disparities between the opportunities afforded to Black and white Americans. The practice of redlining essentially excluded Black Americans from the wealth-building opportunities associated with homeownership. While many white families were able to buy homes and build wealth that could be passed down to future generations, Black families were not afforded that opportunity. Because of this, it is clear to see how barriers to wealth-building opportunities through homeownership also resulted in financial barriers to higher education for Black Americans. On top of the systemic barriers already in place, many higher education institutions explicitly excluded students of color, before educational segregation was made illegal.
For centuries, federal educational policies prohibited people of color from achieving high-quality education. The 1896 ruling in Plessy v. Ferguson allowed for racial segregation in public institutions, as long as they were equal in quality. However, the deep-seated systemic racism in our country has maintained and perpetuated inequality, and continues to limit the opportunities of Black Americans. Formerly redlined neighborhoods still experience high concentrations of poverty, lower access to opportunity, and high levels of racial segregation. When school funding is linked to property values, it doesn’t take much discernment to see how schools in these communities are largely underfunded, leading to disparities in educational resources provided. In 1946, 85 percent of Black college students attended poorly funded Black schools. Even after Brown v Board of Education deemed segregation unconstitutional in 1954, inequity persisted.
It wasn’t until the late 1960’s and early 1970’s that more intentional efforts to increase equitable access to higher education came about, prompted in part by the Civil Rights Movement and certain federal actions. In 1972, Title VII of the Civil Rights Act (which protected against employment discrimination) was amended to include educational institutions. Additionally, the Equal Educational Opportunities Act of 1974 made it illegal to segregate students based on race, color, sex, and national origin. In an effort to increase diversity and extend opportunity to historically disadvantaged students, affirmative action, or the practice of considering race and ethnicity as part of a holistic evaluation of a student’s application, became common in university admissions processes. Now, nearly half of undergraduates are students of color. Less than 20 years ago, students of color comprised less than 30 percent of the undergraduate population. According to the Center for American Progress, affirmative action is one of the best tools colleges and universities have to promote diversity and ensure that those who are otherwise shut out of the American postsecondary system have a chance to earn a quality degree.
Our present reality indisputably establishes that such programs are still needed—for the general public good—because after centuries of state-sanctioned (and enacted) race discrimination, the aforementioned intergenerational race-based gaps in health, wealth, and well-being stubbornly persist.
U.S. Supreme Court Justice Ketanji Brown Jackson
Despite the progress made possible by affirmative action, the U.S. Supreme Court recently struck down the policy, deeming it unconstitutional. Those in favor of banning affirmative action have bought into the false narrative that expanding opportunities for people of color somehow limits opportunities for white people. This idea is what author Heather McGhee refers to as “zero-sum thinking” in her 2021 book, “The Sum of Us: What Racism Costs Everyone and How We Can Prosper Together.” Although the ruling passed, the decision to gut affirmative action in college admissions was not unanimous. In her dissent, Supreme Court Justice Ketanji Brown Jackson criticized the ruling, noting that “deeming race irrelevant in law does not make it so in life.” She continued, saying, “Our present reality indisputably establishes that such programs are still needed—for the general public good—because after centuries of state-sanctioned (and enacted) race discrimination, the aforementioned intergenerational race-based gaps in health, wealth, and well-being stubbornly persist.” Justice Brown Jackson ended her dissent, calling the ruling a “tragedy for us all.”
Increasing Equity by Affirmatively Furthering Fair Housing
Though affirmative action is typically discussed in the context of education, we can draw similarities in housing as well. Just as affirmative action seeks to remedy the results of prior discrimination in education, the Fair Housing Act aims to do the same in the housing arena. Most people are aware of the Fair Housing Act’s first goal of eliminating housing discrimination, but many may be unfamiliar with the Act’s second goal. This often forgotten, but equally important, goal is to promote integrated communities through what fair housing advocates call “Affirmatively Furthering Fair Housing” or “AFFH.” In other words, HUD recipients, executive agencies and departments of the federal government have an obligation to take meaningful actions to foster inclusive communities and eliminate barriers to equitable housing.
We don’t have to look back too far in history to understand why it is necessary to affirmatively further fair housing. From redlining and state-sponsored segregation to racially restrictive covenants and sundown towns, the history of this country is filled with division, oppression, and inequity, fueled by white supremacy. When the Fair Housing Act was passed in 1968, housing discrimination based on race, color, national origin, religion (and later, sex, familial status, and disability) became illegal. The passage of this law was a necessary step in the right direction, giving us the tools to enforce fair housing law, but it was by no means a magic bullet. With all of the inequity that had been created before the passage of the Fair Housing Act, equity could not be achieved simply by preventing housing discrimination from that point forward. Author and journalist Ta-Nehisi Coates so eloquently explained this in his 2014 essay, The Case for Reparations, writing:
Now we have half-stepped away from our long centuries of despoilment, promising, ‘Never again.’ But still, we are haunted. It is as though we have run up a credit-card bill and, having pledged to charge no more, remain befuddled that the balance does not disappear. The effects of that balance, interest accruing daily, are all around us.
Ta-Nehisi Coates
Affirmatively furthering fair housing has been a goal of the Fair Housing Act since its inception, but it wasn’t until 2015 that the federal government implemented a process for enforcing this goal. Under the Obama Administration, HUD finalized the AFFH Rule, providing more clarity and guidance for cities and regions to understand their responsibilities under the Fair Housing Act. However, this progress was short-lived. In 2018, under the Trump Administration, HUD suspended the 2015 AFFH Rule and effectively ended all AFFH implementation and enforcement. Fortunately, the Biden Administration now plans to reinstate the AFFH Rule for all jurisdictions, with proposed changes that aim to make the process of affirmatively furthering fair housing more efficient and effective. Progress certainly has not been linear in the decades-long effort to affirmatively further fair housing, but, at least for now, it seems we are headed in the right direction.
Building a More Equitable Future
Segregation and inequity within housing and education are inextricably linked. Affirmative action policies and the AFFH rule were formed as a response to unfair and discriminatory policies, which created disparities in access to opportunities and a great deal of inequity in America. Affirmative race-conscious policies are needed to redress the harm done by discriminatory race-conscious policies of the past. While there will always be debate over which specific programs, policies, and practices will be most effective in overcoming inequity, one thing is abundantly clear: our approach to equity must be affirmative.