An Uneasy Case for Affirmative Action: Some Notes from Law, History, and Demography


In this paper, I want to make four principal points about affirmative action. First, the members of the Supreme Court are deeply ambivalent on the subject; the Court's struggles to define appropriate legal standards for evaluating race-based affirmative action programs reflect our larger ambivalence with the whole subject of race in America. Second, the genesis of affirmative action can be found in the resistance to implementing Brown. Massive Resistance as well as more genteel foot-dragging raised doubts about the efficacy of a purely process-oriented view of desegregation and led the Court to focus on results. Moreover, the response to Brown engendered broader skepticism about the likelihood that a process-oriented approach to civil rights issues would reduce racial disparities, thereby encouraging the development of affirmative action programs that emphasized results. Third, assessing the impact of affirmative action is exceedingly difficult. Affirmative action programs appear to have promoted greater opportunities for African Americans, but substantial racial differentials remain, and many of those disparities are unlikely to be ameliorated by race-specific policies. Further, affirmative action has been intensely controversial, to say the least. Whatever the benefits, affirmative action also has costs-to its presumed beneficiaries, to others who may be affected, and to society at large. Many of the criticisms must be taken seriously. Fourth, it is time to move beyond polemics. We need not abandon affirmative action, but we should learn from the ongoing controversy on the subject. Efforts to improve the status of African Americans in higher education, the political process, and elsewhere suggest that some of our conventional ways of thinking about merit, representation, and opportunity might be unduly rigid. If that is so, however, we should broaden our understanding of those concepts not only for racial minorities, but for everyone.


Affirmative Action

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Place of Original Publication

Ohio Northern University Law Review

Publication Information

22 Ohio Northern University Law Review 1191 (1996)

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COinS Jonathan L. Entin Faculty Bio