Discussions surrounding affirmative action continued Monday as University Law Prof. Richard Primus lectured on the history and constitutionality of the issue at the Ford School of Public Policy.

Primus is an expert on constitutional law and has clerked for Supreme Court Justice Ruth Bader Ginsburg. He is also a four-time recipient of the L. Hart Wright Award for Excellence in Teaching.

“To say that affirmative action is a hard and complex issue is to vastly underestimate affirmative action,” Primus said. “Constitutionality and legality of a particular measure is variable over time, depending on what people think it means.”

Primus explained the history of affirmative action policy, starting with the Freedmen’s Bureau, which provided services for former slaves during Reconstruction. Eventually, Primus said, the federal government began focusing on anti-discrimination laws that were enforced by agencies like the National Labor Relations Board. In the 1960s and 1970s, NLRB’s “cease and desist” letters blocking discriminatory hiring practices were supplemented with modern affirmative action policies.

Part of Primus’ curriculum in his Equal Protection class deals with the University’s influence on affirmative action policy across the country. The state of Michigan has been a flashpoint in the history of affirmative action. Former University President Lee Bollinger and the University were named as defendants in two Supreme Court cases: Grutter v. Bollinger and Gratz v. Bollinger, which upheld the legality of race-based affirmative action under certain guidlines. In 2014, the Supreme Court ruled in Schuette v. Coalition to Defend Affirmative Action to uphold Michigan’s constitutional ban on affirmative action.

According to Primus, former Presidents Lyndon Johnson and Richard Nixon created the affirmative action policies known today. Primus also explained the metamorphoses undergone by the arguments in favor of affirmative action. Primus said in the ‘60s and ‘70s affirmative action was meant to rectify past or current discrimination against Blacks, while today most arguments in favor of affirmative action focus on the benefits of having a diverse workplace or school. Primus said the argument for diversity is easier to make because of how contestable the subject of race is in the United States.

Primus also discussed the political realm of affirmative action, as opposed to the politics. Affirmative action is a more contentious issue for Americans than legacy-based admissions and preferences for athletes, even though all three issues can be viewed as degrading individual meritocracy in college admissions.

Another problem Primus noted is the fact that beneficiaries of affirmative action tend to have lower grade point averages once they get to college than students who have not benefited from affirmative action. Affirmative action is a popular topic in the news, and survey data shows that more people believe they have lost a position or acceptance because of affirmative action than the total number of people who could possibly have lost a position or acceptance because of affirmative action policy, Primus said.

Officially, the University cannot use racial preferences in its admissions processes after the Supreme Court upheld the state constitution’s ban on affirmative action. Following the 2006 referendum, Black enrollment at the University has fallen by about 30 percent.

“It was a watershed mark for affirmative action and from my personal standpoint, not necessarily what I wanted to see,” said Rackham student Pete Haviland-Eduah about the decision.

Haviland-Eduah was one of a handful of University students who attended the lecture because of his interest in the intricacies of affirmative action.

Primus explained that the University may have alternatives to increasing diversity without relying on affirmative action processes. He cited an existing policy implemented at the University of Texas at Austin in which students from the top 10 percent of public high schools are automatically admitted. Due to lingering racial divides in Texas public schools, this process has the potential to bring in more Black students.

“I think the University of Michigan has always had a history of trying to promote diversity. And I think the University should continue along that path.” said Rackham student Andrew Floyd.

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