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Dwayne David PaulJune 29, 2023
Activists demonstrate as the Supreme Court hears oral arguments on a pair of cases that could decide the future of affirmative action in college admissions, in Washington, Oct. 31, 2022. (AP Photo/J. Scott Applewhite, File)

On June 29, the U.S. Supreme Court curtailed the practice of colleges considering the race of student applicants, commonly referred to as affirmative action. This development ought to be concerning for Catholics of all backgrounds because affirmative action and policies like it are what the preferential option for the poor looks like when it is operationalized. As such, the decision is uniquely significant for white people, as it puts aside an effective means of rehabilitating their moral lives, long degraded by racism.

The preferential option for the poor is the distillation of the church’s teachings on power relations. It is: a theological claim that against the backdrop of God’s overflowing love for us all is a special love for those who are vulnerable; an ethical claim that we are to emulate that love in our interpersonal dealings; and a political claim that we are to organize our communal lives, and the institutions that constitute them, in accordance with these values.

Affirmative action and policies like it are what the preferential option for the poor looks like when it is operationalized.

While this ideal goes back to the church’s earliest days, its contemporary application begins after World War II. It emerged as the Western world began to reckon with international horrors like colonialism, as well as systems of domestic terror like Jim Crow laws in the United States. It was clear that the weight of both states and civil society were needed to repair the unjust distribution of goods wrought by these systems.

In the wake of the civil rights movement, the U.S. Conference of Catholic Bishops saw affirmative action as an important tool to make this repair concrete. As a means to remove barriers to full and equal employment to women and minorities, they say in their 1986 document “Economic Justice for All”: “Concerted efforts must be made through job training, affirmative action, and other means to assist those now prevented” from attaining jobs that would bring them above the poverty line (No. 199). This remark is in the section “Guidelines for Action,” wherein they note, “The themes of human dignity and the preferential option for the poor are at the heart of our approach; they compel us to confront the issue of poverty with a real sense of urgency.”

Where there is mass theft, the redistribution of goods is an essential part of justice.

A few years earlier in their 1979 letter on racial justice, “Brothers and Sisters to Us,” the U.S. bishops even called on Catholic institutions to undertake an outright boycott of “agencies and industries which refuse to take affirmative action to achieve equal opportunity.”

Discrimination is not just hate, it is theft. And where there is mass theft, the redistribution of goods is an essential part of justice. In both of the documents cited above, the bishops see thoughtfully administered affirmative action as an incontrovertible part of our shared task.

There is a physics to achieving justice at this scale: There must be an equal and opposite set of forces to the ones that produced injustice.

Affirmative action in action

Starting with executive orders from Presidents Kennedy (1961) and Johnson (1965), affirmative action was first promoted among federal contractors to do just that: introduce an equal and opposite set of forces to the ones that produced injustice. It was designed to accomplish its mission by prohibiting discrimination in hiring, treatment and promotion, and by encouraging contractors to take the same “positive measures” to ensure equal opportunity for all.

America’s apartheid system was not just a set of hateful ideas. It comprised formal and informal laws governing every level of life in this country from the marriage bed to the halls of government. Thousands of norms, enforced by the state, private industry and the white mob’s noose, created and upheld the state of affairs we inherited. That force needed to be counteracted to change course in any meaningful way.

There is a physics to achieving justice at this scale: There must be an equal and opposite set of forces to the ones that produced injustice.

But in 1978, the Supreme Court, through its decision in Regents of the University of California v. Bakke, essentially retracted the concession that wrongs had to be righted. It ruled that the government’s and civil society’s history of wrongdoing against Black people could not be rectified through affirmative action. Instead, affirmative action was permissible only when it benefited an institution, not the victims of discrimination. In Bakke, the court allowed that schools had a “compelling interest” in diversifying their ranks, thereby providing a more robust learning environment for all students.

True victory in the realm of public policy must be twofold: the favorable decision and then implementation in accordance with the spirit and terms of the legal or legislative victory. The latter does not follow automatically from the former. Implementation itself is often a site of contestation fierce enough to render any decision practically meaningless. Ideals without the means and will to realize them are mere fantasies, after all.

If we judge the landmark judicial and legislative victories of the civil rights era by their impact on the masses of Black people’s lives, we would find failure for the most part. At every turn, implementation has been resisted. If the aim of the movement’s legislative agenda was to desegregate schools, neighborhoods, the ballot box and access to opportunity for Black people and other people of color, the long view is a pessimistic one. Today, neighborhoods and schools remain segregated, and anti-Black hiring practices persist. The civil rights movement is still underway.

Affirmative action does work for people of color when there is an actual commitment. This becomes apparent with its absence.

Ironically, some forms of affirmative action have been a boon for white people. Studies show that white women have benefited the most from the practice. Furthermore, the G.I. Bill remains the greatest social welfare program in the country’s history—as the political scientist Ira Katznelson notes, by 1948 implementation of the G.I. Bill accounted for 15 percent of the federal budget, and the Veterans Administration employed 17 percent of the federal workforce. But in practice, it was almost entirely limited to white veterans. The country understood that it owed a historic debt to veterans, but discriminatory practices meant that it was primarily white veterans who got a leg up in, among other areas, housing, education and job markets through preferential treatment.

But affirmative action does work for people of color when there is an actual commitment. This becomes apparent with its absence. A 2020 study of the impact of California’s repeal of race-conscious admissions at public universities found that it has impacted the quality of life for a generation of Black and Hispanic Californians. In the wake of the 1996 ballot initiative that led to the repeal, students of color were more likely to enroll in the state's less selective institutions, attained degrees at a lower rate than before, and acquired fewer graduate degrees and STEM jobs. This resulted in, among other things, lower income.

The Supreme Court has been prolific in enshrining white backlash and denial in the decades after the civil rights movement. From Bakke to McCleskey v. Kemp, which stated that not even statistical evidence was sufficient to prove racial bias in the criminal legal system, to Shelby v. Holder where the current Roberts Court ruled that the most important enforcement mechanism of the Voting Rights Act of 1965, Section 5, was both unnecessary and unconstitutional.

The Gospel starts its work in the gutters, but it doesn’t end there. The preferential option for the poor and the tools used to operationalize it are interventions against the social hierarchies that societies invariably produce. The flexibility of these hierarchies and details of who fits where within them, vary by context. But that some people are valued less than others, that they consequently live closer to death, does not.

The option is the Gospel’s answer to the question of how we might receive the Good News after we have inherited or seized—though usually a mixture of both—unjust power. We are to resist it in our interpersonal dealings, wield it in social settings for the benefit of those with less power and undermine the structures that uphold it through collective action. As it transforms the world, that dynamic labor transforms our internal lives that have been so disfigured by unjust power.

Whatever they may tell pollsters, the majority of white people gave up on that process and themselves because justice costs something. This decision only codifies their resignation.

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