‘White Backlash’ Against Affirmative Action in the United States and South African Courts

by | Feb 11, 2022

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About Nomfundo Ramalekana

Nomfundo completed her LLB at the University of Pretoria. She has a BCL and an MPhil and DPhil (Law) from Oxford University. She was a Research Associate for the Africa Oxford Initiative and a blog editor for the Oxford Human Rights Hub Blog. Currently, Nomfundo is a lecturer in the Public Law Department at the University of Cape Town, South Africa. Her broad research interests are in constitutional law, comparative human rights law, anti-discrimination law, feminist legal theory and critical race theory.

Image description: Demonstration in support of affirmative action outside the United States Supreme Court. 

The US Supreme Court has recently decided to hear two cases on race-based affirmative action in higher education. With the current swing towards the conservatives, there is fear that this could mean the end of race-based affirmative action. The anti-affirmative action strategic litigation that has led to this moment in the US has created a playbook for similar actors in the South African context. This litigation should be understood as an instance of ‘white backlash’ in both jurisdictions.

In contrast to South Africa, the US approach to race-based affirmative action does not centre redressing its legacy of white supremacist enslavement, domination and oppression. Infamously, race-based affirmative action in the US is subject to ‘strict scrutiny’, the highest level of judicial scrutiny. Thus, for an affirmative action measure based on race to pass constitutional muster, it must have a compelling state interest and be narrowly tailored towards achieving that interest. Not only is this standard of review significantly stricter than that in other jurisdictions, but the US Supreme Court has also circumscribed the range of legitimate purposes that affirmative action can pursue. For example, in the higher education context, only those measures that further the purpose of diversity in higher education have been accepted.

This means that affirmative action in US higher education cannot pursue the ends of redressing past and persisting ‘societal discrimination’. This is a much narrower approach to affirmative action than in South Africa – where the Constitutional Court, has deliberately opted for a proportionality assessment tipped in favour of affirming the constitutionality of affirmative action measures. The Constitutional Court has also consistently aligned its understanding of the right to equality as embodying a substantive approach to equality, requiring and mandating the use of classifications such as race and gender to further the goals of redressing white supremist and patriarchal oppression. This approach is distinct from the narrow, colour-blind approach to equality in the US.

Unfortunately, even with these different approaches to affirmative action based on race, there is a convergence in the strategies used by anti-affirmative action organisations in the US and South Africa. The story behind much of the litigation in the US and South Africa is that it is primarily driven by well-resourced individuals and organisations committed to dismantling affirmative action. In the US, this includes persons like Edward Blum – a conservative legal strategist who has been at the forefront of the funding and the strategy to dismantle race-based affirmative action. In the South African context, the conservative trade union Solidarity and Afrikaner-nationalist organisation, Afri-forum, have been leading this litigation.

The campaigns to dismantle affirmative action in South Africa and the US share similar features. First, these campaigns are happening via the courts. In the US, what was once an imperfect but progressive Fourteenth Amendment jurisprudence with the use of race to redress patterns of systemic, structural disadvantage, has morphed into a colour-blind jurisprudence that helps entrench existing patterns of racial inequality. Similarly, in South Africa, the Constitutional Court’s jurisprudence trajectory is increasingly shifting towards centring of the ‘harmed’, non-beneficiary candidate of affirmative action.

Second, in both jurisdictions, the strategy has been to find claimants belonging to disadvantaged groups – shifting away from the white male candidate. This started with the case for white women – see Fisher (in the US) and Barnard (in South Africa). When unsuccessful, they shift to other racial minorities – Asian Americans in the US and persons classified as ‘Coloured’ in South Africa. The choice of claimant is not benign. It is without question used to pit different disadvantaged groups against each other – forcing the courts to make complex determinations of deserving and undeserving beneficiaries. In the end, however, this has little to do with the minority groups. The litigation undoubtedly seeks to entrench the privilege and hegemony of white people, particularly white men, in higher education and industry.

A third point of congruence in the strategy is that they use similar legal devices – calls to formal equality and the need for fairness in treatment that is captured by a colour-blind reading of the Fourteenth Amendment in the US and a narrow approach to ‘non-racialism’ under the South African Constitution. In the US, the already narrow Fourteenth Amendment jurisprudence on which race-based affirmative action measures rest is fertile for the complete dismantling of these measures. In South Africa, the incoherence about the role of affirmative action in the struggle to eliminate inequality has left the door ajar for a similar erosion of affirmative action. This litigation should thus be seen as a part of white backlash against affirmative action.







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