The Brief: Law School News and Events

Affirmative Action: Does it Reduce or Perpetuate Inequality?

Affirmative action has been controversial since its inception in the 1960s, praised as a solution to racial inequality but also criticized as a perpetuator of it.

Both viewpoints were defended at the Law School last March, when the Penn Law Federalist Society organized a debate on the topic between Wade Henderson, president and CEO of the Leadership Conference on Civil Rights, and Linda Chavez, president of the Center for Equal Opportunity.

"Now is the time to end any preference based on race or ethnicity," declared Chavez in her opening remarks. "Clearly, the color of one's skin is not an absolute bar, as it was in 1965, to great achievements and success," she added, referring to President Obama and former Secretaries of State Colin Powell and Condoleezza Rice.

"It's not about equal achievement, it's about equal opportunity," rejoined Henderson. "It's not appropriate to use the achievements of a select group of achievers" to assess the opportunities available to racial minorities in general, he said.

To Chavez, however, equal opportunity isn't the real or intended objective of affirmative action nowadays. Though it was created to redress the harms of slavery and legalized discrimination, she said, it now exists to "promote the idea of diversity, which presumes that race and ethnicity mean something real."

Admission programs that favor racial minorities thus amplify racist tendencies rather than correcting them, according to Chavez, and result in a "mismatch" between students and schools. Affirmative action "sweeps under the rug the reasons why a student got lousy SAT scores and accepts the student anyway. So it's actually exacerbated the problem, it hasn't addressed it," she said.

"If we lived in a society where race was a minimal factor in making decisions, that statement might be right," responded Henderson. "I wish that was the case. I would celebrate if it were." But institutional racism still restricts the opportunities available to many people of color, he said, and "demography is destiny."

As long as some individuals are still undeniably benefiting from affirmative action programs, Henderson concluded, schools should retain them.

Henderson named two such individuals: Supreme Court Justices Sonia Sotomayor and Clarence Thomas. Affirmative action didn't give either justice an unfair advantage during their career, he said – it simply let them "compete in the same realm" as their white peers.

"I don't think Sotomayor needed affirmative action to get where she got," Chavez replied.

Debate moderator and Penn political science professor Rogers Smith summed up the outcome of the debate by placing it in historical context. Despite the overwhelming number of Americans from across the political spectrum who have, over the past few decades, "come to embrace the legacies of the civil rights era, those legacies are interpreted very differently by different people," he said.