Though the plaintiffs were Asian Americans, the ruling and dissent largely saw it as a ‘Black-and-White’ issue. This exposed the failure of the system designed for a racial binary to account for a multi-racial reality. Race-conscious policies were introduced after the 1954 Supreme Court ruling, Brown v. Board of Education, Topeka, Kansas, to desegregate schools. Affirmative action, a term introduced in a 1961 executive order by President John F Kennedy, was a way to redress deprivation resulting in generational disparity in education, employment and housing. The 1978 Regents of the University of California v. Bakke case, the first major challenge, stripped away the policy’s moral underpinning and redefined it as a tool for social and institutional diversity. Thus began the slow unravel. The ruling’s impacts could even begin to dismantle affirmative action in other spheres beyond education.
There is a lesson here for all countries. The tools for redressing systemic deprivation and institutional discrimination resulting in generational backwardness must be different from those used for increasing diversity. Failure to make the distinction will result in throwing out the baby with the bathwater.