Twenty-five years ago, an episode titled “Positive Behavior” aired on Larry David’s show “Curb Your Enthusiasm.” In it, comedian Richard Lewis introduces David to Dr. Glanbus, a black dermatologist. David jokingly questions whether Lewis trusts Dr. Glanbus because of his race, to which Glanbus replies that he has worked hard for his qualifications.
This theme is echoed in Justin Driver’s new book, “The Collapse of Positive Behavior: Race, the Supreme Court, the Future of Higher Education.” The episode captures the awkwardness many Americans feel about the topic. Supporters view affirmative action as essential for opening doors for marginalized groups. In contrast, critics argue it discriminates against white individuals by replacing race-based admissions with a new set of biases.
Positive behavior policies have fluctuated since the 1960s. Initially, civil rights advocates pushed for these measures, which were adopted by various institutions. Still, over the years, opposition grew as affirmative action became associated with preferential treatment and quotas.
A landmark case in 1978, involving Allen Bakke, asserted that he was denied admission to the University of California Davis School of Medicine in favor of a less qualified minority student. The Supreme Court ultimately ruled that institutions could use affirmative action to foster diverse educational environments, which would benefit all students.
However, for over four decades, legal challenges and decreasing public support have overshadowed affirmative action policies. Recently, in the case of Students for Fair Admissions vs. Harvard, the Court determined that using race in admissions violated the Equal Protection Clause of the 14th Amendment.
This decision was seen by conservatives as the end of racial preferences, while liberals viewed it as a setback for racial equality efforts.
Driver’s book examines the implications of this ruling. He argues that there are ways to prevent a regression to a time when black students were seldom seen in positions of power. Yet, he also highlights the difficult journey ahead for proponents of affirmative action. As recent events demonstrate, initiatives must not only align with constitutional standards but must contend with governmental hostility toward racial preference policies.
Driver asserts that affirmative action “successfully transformed American society,” allowing significant numbers of black students to attend elite universities, signaling that they belong in all spheres of society. However, he challenges conservative claims that these policies lead to complacency among students with lower academic records and foster victimhood.
While he sees flaws in the conservative perspective that the recent ruling creates a less favorable admissions process than prior affirmative action models, he acknowledges it allows universities to still consider personal statements reflecting racial experiences—ultimately suggesting that conservatives are manipulating narratives to showcase the progress toward equality in America.
Driver notes that this ruling might lead to better recognition of black students from largely underserved urban schools, as opposed to those from prestigious private institutions who may have less challenging educational environments.
Defenders of affirmative action often cite the 14th Amendment as banning negative racial classifications against minorities. However, Driver observes that those challenging these policies have tweaked this interpretation to assert that affirmative action disadvantages Asian Americans.
Conversely, it’s essential to realize that the ruling does not eliminate all racial considerations from admissions but restricts them. Driver suggests several alternatives to achieve diversity moving forward, like giving preferences to applicants identifying as descendants of enslaved individuals or prioritizing applicants from Native American tribes.
However, these ideas may face significant hurdles in implementation due to complexities in criteria and widespread public opposition to racially conscious measures.
Moreover, many universities are wary of inviting scrutiny from the current administration. For instance, the Department of Justice recently warned universities that failing to comply with certain policies could result in the loss of federal funding, making it challenging to navigate these changes.
Interestingly, Driver does not delve into more common racially neutral strategies that could also improve access to higher education, such as partnerships with community organizations and streamlined transfer processes from community colleges.
It’s important to note that the Supreme Court’s stance is not isolated; the majority includes justices appointed during Trump’s presidency, who have engaged in substantial criticism of affirmative action, including supporting outright bans in several states.
In a post-ruling context, while David’s humor may fall flat, the country faces a broader decline in diversity, equity, and inclusion, impacting society as a whole.
