Fordham Sets the Record Straight on Affirmative Action



The Moot Courtroom at Fordham Lincoln Center’s Law School.


Earlier this month, the federal court case about the constitutionality of race-based admissions, contended between Harvard University and the Students for Fair Admissions (SFFA), was settled in Harvard’s favor. Since then, members of the Fordham community have made efforts to clear up misconceptions about the practice of “affirmative action” in college admissions.

On Thursday, Oct. 3, the Fordham Law chapter of the American Constitution Society for Law and Policy (ACS) hosted Genevieve Bonadies Torres, a lawyer and member of the Lawyers’ Committee for Civil Rights Under Law (LCCRUL). LCCRUL, which was created by President John F. Kennedy in the 1960s, exists as a legal organization to research and define the constitutionality of racial laws in the United States. In the case between SFFA and Harvard, LCCRUL brought together a group of students who testified against SFFA in the case.

Kestine Thiele, Fordham Law School ’20 and president of the Fordham chapter of ACS, invited LCCRUL on campus because she noticed that most Fordham students don’t openly discuss the practice of affirmative action. “Even people affected by it don’t understand,” said Thiele.

At the event, Torres began her presentation by defining affirmative action. According to LCCRUL, the practice is a useful approach to “level the playing field in a system that is inherently negative and suppressive” based on the socioeconomic backgrounds of students and ongoing racial discrimination.

Janis Barry, associate professor of economics at Fordham, has focused her research in this area and teaches a number of courses about the subject. She explained that the history of affirmative action goes much further than just racial diversity in college admissions.

Barry described how the concept of affirmative action was originally targeted to help certain ethnic groups who had been the subject of “territorial conquest and expansion” by the United States, particularly black Americans whose families had been brought here on slave ships against their will, indigenous Americans who were systematically eradicated from North America, and Latinos who had been annexed following the Mexican-American War and Spanish-American War, respectively. According to Barry, all of these communities faced generations of legally enforced economic and political disenfranchisement, which has contributed to the inequities in achievement that we see today.

According to Barry, the first instances of affirmative action were not even about regarding diversity in colleges, but rather employment and representation in the workforce. “This was never meant to be uniquely relegated to diversity in education,” said Barry.

However, Barry noted, as a college degree has become synonymous with success in recent decades, affirmative action has been focused around accessibility to education.

The consideration of socioeconomic factors, particularly race, in college admissions, has been upheld by the 1978 case “Regents of the University of California v. Bakke” as well as the 2003 “Gratz v. Bollinger” and “Grutter v. Bollinger” cases. At LCCRUL’s event, Torres briefly recounted before moving onto the case against Harvard.

Torres identified the key plaintiff in the Harvard case as Ed Blum, a conservative political strategist and longtime activist against affirmative action. Blum’s non-profit organization, The Project on Fair Representation, has been working to repeal affirmative action protections since 2005, mostly using white litigators and witnesses who argued that the practice discriminated against them. According to Torres, Blum has turned to “Asian American plaintiffs rather than white plaintiffs” over the last few years in a bid to cast affirmative action as discriminatory against many other races, rather than just white students.

During the court hearings, neither Harvard nor the SFFA had presented any witnesses testimonials themselves. LCCRUL stepped in by representing four college-aged students of color who supported racial consideration in admissions — two of whom were Asian American. According to Torres, all the witnesses saw their race as an important part of their identity and how they would be unable to present their “life stories” if they were banned from mentioning their race.

Torres warned how banning the practice of affirmative action would severely set back progress made by colleges to increase diversity. According to Torres, “The number of black and Latinx students would drop on (Harvard’s) campus by roughly a thousand students,” should race be banned from consideration. Torres emphasized that this statistic doesn’t mean that students were being admitted because of their race, but rather their race was simply another factor among many that could determine their chance of acceptance. Barry’s research has been used to show that many students of low-income backgrounds routinely have lower GPAs and score lower on standardized tests, and often students of color come from low-income backgrounds due to the history of the U.S. 

According to Torres, race is one factor that can be considered to determine if a student’s performance has been because of their own achievement or the circumstances pressed against them. Yet Torres says this consideration, however, was manufactured into an issue in the notoriously competitive Ivy-League admission atmosphere. “When you have a 4% admissions rate, anything can make you a more compelling candidate,” said Torres.

Torres did note that the court observed Harvard’s admissions counselors gave Asian American students slightly lower personal ratings on average. However, she emphasized that the court found banning affirmative action “wouldn’t solve that problem.” Rather, Torres recommended that Harvard invest more in diversity awareness training for Harvard’s admissions counsellors to remedy any difference or implicit bias.

In closing, Torres warned that groups like SFFA continue to battle affirmative action in court, citing their current lawsuit filed against the University of North Carolina, as well as the SFFA appealing their case to the Supreme Court. “These attacks are ongoing, relentless and well-funded,” said Torres. “But we are working … to raise the voice of students of color on college campuses.”

Thiele was happy with the “informative” presentation, describing how “getting a bunch of voices in one room, that already moves the needle” in public awareness and support of affirmative action. 

Barry’s research, however, suggested a newer, more specific solution to the problem. She explained how the arrival of immigrants in recent U.S. history has presented new challenges to affirmative action; specifically whether or not these underrepresented groups who came voluntarily to the U.S. should also be considered for affirmative action. To her, it was the presence of “starting capital” that allowed recent immigrants (as well as many historical Asian American populations) to achieve at the same or higher rates than white students.

Barry believes that in order to restore affirmative action to its original goal of helping underrepresented groups, historical socio-economic factors must be considered rather than race. She noted how migration patterns and socio-economics can “explain the material conditions of specific people … given their geographic location.” 

Because race and socio-economic status are highly correlated, Barry believes that viewing underrepresentation by economic rather than racial definitions helps to “deconstruct the simple notion that it’s just about race.”

“Using a race-based method,” Barry concluded in regard to leveling the playing field underprivileged communities, “might need something better than just asking, ‘What color is your skin?’”

Gabe Samandi contributed additional reporting to this story.