Affirmative Action at a Crossroads

Talking About Affirmative Action

andreazhou2026 — Sat, 31 Oct 2020 04:27:06 +0000

Talking About Affirmative Action

Matthew D. Reade

Executive Online Editor, The University of Chicago Law Review; Pomona College, B.A. 2018; The University of Chicago Law School, J.D. 2021.

I’m grateful to the many people who took time to review and critique early drafts of this introduction, including Brian Sanders, Nathan Tschepik, Taiyee Chien, Jessica Lee, and Daniel Simon. Taiyee Chien deserves special thanks for his steadfastness, equanimity, and clarity of purpose as we assembled, advocated, and edited this series. I also thank the participating authors and the Online Editors of The University of Chicago Law Review. In these times, standing for fulsome, open, and honest debate is no small act of courage.

andreazhou2026 Fri, 10/30/2020 - 23:27

October 30, 2020

I

On October 27, 1996, as the cameras rolled, San Francisco Mayor and former California State Assembly Speaker Willie L. Brown, Jr. took the stage in a drab auditorium on the campus of San Francisco State University. Joining him on stage, behind a mustard-colored dais, was California Assemblyman Bernie Richter. The men convened that evening to discuss Proposition 209. That ballot measure—also known as the California Civil Rights Initiative—would abolish racial preferences in California.1

Lanky and silver-haired, Richter had campaigned for years to amend California’s constitution to abolish racial discrimination and racial preferences in public employment, public education, and public contracting.2 Brown, standing six feet away on the cramped stage, had long campaigned to stop him. In a matter of days, Californians would tell the world where they stood, casting their ballots on Proposition 209, the culmination of Richter’s many years battling racial preferences and quotas.

The two men were a study in contrasts. Brown is Black; Richter was White. Brown, who served a record fourteen years as California Assembly Speaker, was a savvy politician and negotiator who always found himself at the head of a legislative majority. Richter, a Democrat-turned-Republican, was a fiercely independent and indefatigable civil-rights activist, a man who relished fighting alone for things that matter. But nowhere was the contrast between these men clearer than on the subject of affirmative action.

Brown described attacks on race-based affirmative action as “racist” attacks on remedies for past discrimination.3 In Brown’s view, Whites had long benefited from racial discrimination and thus could not complain about a system that inverted those longstanding preferences to grant racial minorities fair representation in the workforce and in higher education institutions. Affirmative action, he argued, was necessary to counter decades of past discrimination and to effect racial equality. As such, Brown argued, support for Prop. 209 would not “be on the basis of anything except pure, unadulterated exploitation of racism.”4

Richter assailed race-based affirmative action as “government-enforced racism,” no different than Whites’ invidious discrimination against Blacks during Jim Crow.5 He frequently cited Justice John Harlan’s immortal dissent in Plessy v. Ferguson, in which case the Supreme Court upheld state laws requiring segregation against constitutional challenge. Alone in dissent, Justice Harlan insisted that the Constitution required equality under the law. “There is no caste here,” he wrote. “Our Constitution is color-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law.” Affirmative-action advocates, according to Richter, repudiated this bedrock principle of equality in favor of a politics of “hate and racial division.”6 After all, rather than remedying specific instances of past discrimination, affirmative action treats racial groups as monolithically deserving or undeserving of preferential treatment. And “making policy decisions based on a person’s ethnicity—on the way they were born—is wrong.”7

Then as now, affirmative action was a lightning rod. Emotions ran high. And, at times, the public debate turned ugly. A cartoonist for the Oakland Tribune depicted Ward Connerly, a Black businessman on the University of California’s Board of Regents who chaired the public campaign for Prop. 209, as the owner of a laundromat serving the Ku Klux Klan.8 A political operative vowed to dig up dirt on the mild-mannered academics who drafted the initiative.9 A Los Angeles city councilman described Prop. 209 as warmed-over Mein Kampf, a sentiment state legislators echoed.10

Yet the ugliness could not stop a full and frank debate. The American Enterprise Institute’s Dinesh D’Souza, a Prop. 209 backer, debated Jesse Jackson at Stanford’s Memorial Hall, then clashed with Erwin Chemerinsky at the University of Southern California.11 Richter traveled up and down the state for debate partners.12 So did Brown, who sparred with Richter many times.13

II

What separates now from then? At first glance, not much: Racial preferences in public education and employment still divide the American public.14 The debate over racial preferences remains consequential. Even the tone of the debate has not much changed: As in the mid-1990s, the issue of racial preferences is highly charged15 and, at times, vitriolic.16 But when debate happens, it is productive.17

What has changed is whether debate happens at all. A censorious minority in higher education, in the workplace, and in elite opinion-making institutions has raised the cost of debate and disagreement far beyond what our republic can bear.18

At America’s higher education institutions, deplatformings and firings have silenced faculty, students, and invitees across the political spectrum.19 The range of acceptable opinion has narrowed to a sliver at renowned publications like The New York Times.20 Even workplaces are in tumult: Firings and resignations—all for expressing, at one time or another, something with which someone disagrees—are now commonplace.21 These incidents are now so frequent that they no longer surprise. They provoke as much interest today as rush-hour traffic.

Some argue that these incidents are not representative. They are. But whether they are is beside the point. A free society cannot survive if its members do not speak freely because they believe they cannot.22 And what Americans believe is sobering: More than three in five self-censor. A third fear losing career opportunities or their jobs because of their political views. That fear transcends party affiliation, race, gender, income, and education level. And as fear has risen, so has intolerance. Half of “strong liberals” and more than a third of “strong conservatives” support firing an executive from her job for the sin of donating her own money to the presidential candidate they oppose.

Intolerance of dissent does not make for a healthy republic. A free nation cannot coexist with epistemic arrogance. As F.A. Hayek once observed, “[t]hose who plead for liberty differ from the rest in that they include among the ignorant themselves as well as the wisest.”23 Freedom of speech, like “all institutions of freedom,” is an “adaptation[ ] to this fundamental fact of ignorance.”24 It answers the inescapable uncertainty of human affairs by placing faith not in the shallow certitudes of a chosen few but in the deep reservoir of knowledge, experience, and creativity of society at large. Unfettered debate, in other words, protects social progress by denying anyone the power to inhibit the search for truth. It promotes a market, rather than a monopoly, of ideas.

III

Open, honest, and vigorous debate is especially important for a topic like this one. Racial preferences are sharply contested and provoke strong reactions on all sides. At the debate’s center are conflicting conceptions of equality, each of which is compelling and contestable in its own way.25 And this debate will not vanish any time soon: On November 3, Californians will vote on whether to repeal the ban on racial preferences Richter advocated. In October, the U.S. Department of Justice sued Yale University for discriminating based on race and national origin in undergraduate admissions. A private suit against Harvard University by a coalition of Asian-American students appears bound for the Supreme Court. And a national conversation about racial justice has forced these and other difficult questions to the fore.

To confront those questions, we have assembled a panel that aims to fully and fairly represent the affirmative-action debate. Some of our panelists are strong advocates of affirmative action; others decry racial preferences. Our panel features not only lawyers and legal scholars but also empirical experts and cultural critics. And our participants hail from many different backgrounds, institutions, and intellectual traditions. This series embodies the University of Chicago’s “commitment to a completely free and open discussion of ideas.”

Opening the series, Coleman Hughes frames the affirmative-action debate as a contest between three positions. The “pro-equality” position opposes affirmative action because it discriminates against individuals on the basis of their race. The “pro-equity” position accepts discrimination against individuals to correct racially unequal results at the group level. The “middle-ground” position attempts to split the difference between equality and equity. Each view has its own problems and attractions. The pro-equality view “gels effortlessly” with the colorblind principle of the civil-rights movement but “must accept any level of group-level disparity, no matter how starkly unequal.” In contrast, the pro-equity view can offer an immediate solution to group-level disparities. But it is applied selectively and must embrace the view that racial discrimination against individuals is merely “contingently evil—contingent, that is, on whether such discrimination is increasing equity or reducing it.” The middle position offers something for both sides. Yet it “dodges the most important question: What is ‘racism’?”

Next, Professor Richard H. Sander asks and answers Fifteen Questions about Prop. 16 and Prop. 209. Sander explains California’s antidiscrimination provisions and discusses their effects on the enrollment, graduation rates, and applications of minority students in the University of California system. From the data, Sander concludes that “legalizing discrimination to create racially proportional university admissions . . . papers over the real problems” causing racial inequality and, in fact, “hurts the people it is intended to help.” While agreeing with Hughes that the distinction between the pro-equity and pro-equality positions “is often lost . . . in affirmative-action debates,” Sander thinks that the trade-off is less stark than Hughes suggests. California’s experience with Prop. 209, Sander writes, “leave[s] no doubt that race-neutral admissions were a win-win for both equality and equity.”

In Good Trouble, Professor Girardeau A. Spann hopes that ongoing “protests against racial injustice” across the United States reflect an emerging social consensus around the “pro-equity” conception of affirmative action. That consensus, Spann contends, may prompt the Supreme Court, a body “ultimately dependent on popular support,” to embrace the view that the Constitution requires affirmative action and other efforts to “eradicat[e] racially disparate impact.” Throughout Good Trouble, Spann powerfully argues for the pro-equity conception of affirmative action. Opposition to affirmative action, he writes, “smothers racial equality beneath a tacit baseline assumption that the current allocation of resources is itself fair and equitable—despite the long history of overt, implicit, and structural racism on which it rests.” Battling that “ongoing discrimination” is what affirmative action does.

Of course, hardship and discrimination can arise from characteristics beyond race, too. Brown and Richter, for example, often clashed over whether affirmative action should proceed along racial or socioeconomic lines. But why not both? That is Professor Jonathan Feingold’s view. Feingold criticizes the Supreme Court’s “preference” for “class-not-race” affirmative action as “intersectional blindness”—a failure, in other words, to recognize that hardship may attach simultaneously to many different facets of a person’s identity. Intersectional blindness, Feingold argues, has allowed powerful institutions—in particular, elite universities—to claim the mantle of “racial equality” even as they implement admissions policies that in fact “reproduce race and class privilege” and stall progress toward class-and-race equity.

While Professor Spann hopes for change from a Court galvanized by popular groundswell, Professor Susan P. Sturm is less optimistic. Defending affirmative action “continues to be important and necessary.” But affirmative action is contested and incremental, “compensat[ing] for,” but not eliminating, the “limitations and structural biases built into” the education system. To address those stubborn problems, Sturm argues, higher education institutions must think beyond the admissions process, and invest in transforming institutions and “cultivating potential and mobility” long before underprivileged students ever apply to college. Institutional transformation along these lines has yielded astounding gains where it has been tried. Broadening those efforts would bring those benefits to underrepresented minorities and low-income students everywhere and refocus higher education institutions on serving everyone in their communities, rather than just a privileged few.

Sturm also notes that the Supreme Court, beginning in the 1970s, has repeatedly cited diversity as a compelling rationale for race-based affirmative action. Traditionally, scholars have traced the diversity rationale to university elites, to the rise of identity liberalism (as distinct from the colorblind principle of the early civil-rights era), or to the Court itself. Professors Anthony S. Chen and Lisa M. Stulberg question that scholarly consensus. They argue that the diversity rationale originated not in the late 1960s or 1970s, but in the early 1960s with the civil-rights movement and Americans’ increasing openness to “religious, ethnic, and racial difference.” That reading of the historical record reveals that the diversity justification for affirmative action in higher education is better understood as an expression, not a repudiation, of classical liberalism. Indeed, the diversity rationale had taken root at selective universities long before it received the Court’s endorsement in Regents of the University of California v. Bakke and even before Congress enacted the Civil Rights Act of 1964. According to Chen and Stulberg, this record suggests that universities genuinely “embraced the educational value of diversity,” rather than simply repurposing diversity rhetoric to effect “a legally and constitutionally dubious program of ‘racial preferences’” they had long desired.

Professor Amy L. Wax argues that the diversity rationale for race-based affirmative action drastically departs from its traditional justification as a remedy for past discrimination. “A core ideal of Anglo-American law,” she writes, “is that legal wrongs should be remedied by restoring the injured victim to . . . the position . . . the victim would have occupied had the legal injury never been inflicted.” And by citing diversity to justify racial preferences, the Supreme Court has strayed far from that core principle of remediation and, in so doing, has laid the foundation for “affirmative action forever.” Wax thinks that is a mistake. If diversity remains the rationale, the Court should at least demand specific evidence that “a more varied demographic profile advances pedagogical effectiveness” before a university may deploy racial preferences. After all, Wax writes, preferences for one racial group necessarily entail penalties for others. But whatever the merits of granting universities “blanket permission to advance diversity,” Wax argues that the Court has not and should not extend that permission to the workplace. The workplace “is fundamentally different from education”; it aims at profit, not pedagogy. And in the employment sphere, Wax states, the costs of racial preferences are clearer, while their benefits are “speculative and unproven.” Thus, Wax contends, courts should burden firms “that adopt race-conscious methods to show that their hiring practices actually advance their core mission and legitimate business purposes. Other rationales should not suffice.”

Professor Richard Thompson Ford criticizes the diversity rationale from a different direction. The “[e]mbrace of ‘diversity’ has kept affirmative action alive,” he concedes, but at the cost of “turning issues of justice into questions of technocratic personnel management.” Unlike Professor Wax, Professor Ford rejects the notion that affirmative action generates material social or individual harms. For starters, any “individual injury” that affirmative action might inflict “is offset by the social benefit of correcting for and reversing generations of racial injustice.” Plus, grades and standardized test scores, though “useful as a means of making broad distinctions between applicants,” are imperfect measures of merit and lack predictive value when performance gaps are small, as they are at most elite institutions. For these reasons, among others, Professor Ford doubts that renewed efforts to eliminate affirmative action will succeed, even if they win Pyrrhic victories in court. Without affirmative action, universities “will reduce their reliance on scalable indicia of merit generally,” accelerating the remediation of the racially disparate impacts those indicia produce.

In Affirmative Action, Transparency, and the SFFA v. Harvard Case, Professors Peter S. Arcidiacono, Josh Kinsler, and Tyler Ransom analyze a rich trove of admissions data revealed at trial in an ongoing suit against Harvard University. There, the plaintiffs have alleged that Harvard discriminates against Asian-American applicants on the basis of their race. The data shows strong preferences for underrepresented minorities, particularly Black and Hispanic applicants. But it also reveals a playing field tilted sharply in favor of Whites, athletes, and legacy applicants, at the expense of “significantly stronger” Asian-American applicants. Pointing out that data is crucial to drawing informed conclusions about affirmative action’s effects, the authors admonish universities to level with students about how racial preferences affect them—both at the admissions stage and beyond.

Concluding the series, Professor Daniel E. Ho and Ms. Alice Xiang of the Partnership on AI examine whether and how universities might harness machine learning to effect affirmative action. A key pitfall of “algorithmic affirmative action” is that algorithms necessarily quantify race, which violates the Supreme Court’s clear bar on quantified or points-based racial preferences. But that barrier, the authors explain, is not insurmountable: The Supreme Court has affirmed race-based set-asides in the public-contracting context, when they are justified as remedies for past discrimination. The contractor cases indicate that affirmative-action algorithms could quantify race so long as they do so to remedy their user’s past discrimination against the groups the algorithms prefer.

IV

After an hour and twenty minutes, Mayor Willie Brown and Assemblyman Bernie Richter finished their debate. The men shook hands and smiled. Richter clapped Brown’s shoulder. The men stepped off the stage and, after chatting for a moment more, went their separate ways. A week later, on November 5, 1996, California voters sided with Assemblyman Richter and enacted Prop. 209, adding to the state constitution the following antidiscrimination provision: “The state shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting.”

Brown and Richter disagreed strenuously. Each regarded the other’s position as incompatible with our nation’s core ideals. “How do you square [racial preferences] with all that we are and all that we hope to be?” Richter asked rhetorically during the October 27 debate. “Those of us who advance Prop. 209, we stand in the shoes of Jefferson, and Lincoln, and King.” Against this, Brown argued that Prop. 209, by preserving race-based entitlements for Whites, would return the United States to the “system as we knew it before Brown v. Board of Education.” Racial preferences for underrepresented minorities, Brown said, would protect people like his son from the effects of past discrimination. Again invoking first principles, Richter responded memorably: “Mr. Brown’s son needs a racial preference like we all need a hole in the head,” he thundered, pointing out that Brown’s son came from an “affluent” and “educated” family. “To give [Mayor Brown’s son] a preference at the expense of some poor Asian or some poor White,” Richter continued, “is an outrage. It is an attack on everything we believe in. It’s going against all that this country stands for.”

Yet despite their differences, Richter and Brown always were cordial colleagues and friends. Brown even backed Richter as his successor to the speakership of an evenly divided Assembly, whipping votes for him in the Democratic caucus in early 1995.26 Though that bid failed, it reflects the abiding respect the men had for one another—a respect their colleagues shared. After Richter died suddenly of a heart attack in October 1999, the Assembly, though by then dominated by Richter’s political opponents, honored Richter with a legislative proclamation recognizing his “commitment to his values, his state, and his country.” Richter, the proclamation read, “was a maverick and independent thinker” who “fought tirelessly for what he believed, regardless of any criticism he might engender along the way.”27 Mayor Brown, of course, had offered his condolences long before. After Richter died, he was one of the first to call.

Richter and Brown are proof that kindness and collegiality can coexist with the strongest conviction. This series shows that is still true today. Though we may divide on the issues, we remain committed to the pluralism and respectful dialogue that makes freedom possible. Of our panelists’ courage and grace, I’m sure my grandfather, Bernie Richter, would be proud.

1Prop. 209 would add the following language to the California Constitution: “The state shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting.” Cal. Const., art. I, § 31(a).
2For one early effort, see ACA 47, 1993–94 Assemb., Reg. Sess. (Cal. 1994).
3Ann Bancroft, Willie Brown Says No Compromise on Affirmative Action, Associated Press (Feb. 14, 1995).
4Jeff Jacoby, California’s colorblind proposition, Boston Globe (Aug. 27, 1996).
5Michelle Locke, Affirmative Action Out at California Universities: Affirmative Action Ousted, Associated Press (Jul. 21, 1995).
6Ann Bancroft, Jackson’s “Save the Dream” crusade heads for State Capitol, Associated Press (Oct. 27, 1997) (“Bernie Richter . . . , legislative author of Proposition 209, . . . accused [Jesse] Jackson of preaching ‘hate and racial division.’ ‘America does not need demagogues and professional racists to lead us into the next century,’ Richter said.”).
7Mike Comeaux, Initiative Revives Debate on Affirmative Action, L.A. Daily News (Jan. 30, 1995) (quoting Richter).
8Ward Connerly, An Ugly Campaign to Preserve Quotas, Wall St. J. (Sept. 25, 1996).
9Jacoby, California’s colorblind proposition (cited in note 5).
10Jacoby, California’s colorblind proposition (cited in note 5). A California assemblywoman described a legislative proposal by Richter to honor Justice Harlan’s dissent in Plessy v. Ferguson as a “horrible, fascist resolution.” Associated Press, Insults, Anger over Failed Resolution (May 23, 1996).
11Dinesh D’Souza, The battle over the CCRI, American Enterprise Institute (Jan. 1, 1997).
12See, e.g., Business Wire, Assembly author of anti-affirmative action legislation will debate his proposal at University (Apr. 6, 1995).
13See, e.g., NBC News, Interview: California Assemblymen Willie Brown and Bernie Richter discuss an amendment that would ban affirmative action programs (Mar. 12, 1995).
14Polling data suggests that the public supports “affirmative action” but recoils at express racial preferences in hiring and admissions. See Frank Newport, The Harvard Affirmative Action Case and Public Opinion, Gallup (Oct. 22, 2018) (showing that a majority of Americans support “affirmative action” but that nearly two-thirds oppose considering race or ethnicity in college admissions); Nikki Graf, Most Americans say colleges should not consider race or ethnicity in admissions, Pew Research Center (Feb. 25, 2019) (reporting that 73 percent of Americans “say colleges and universities should not consider race or ethnicity when making decisions about student admissions”). Even so, recent votes on racial preferences have been extremely close. In November 2019, voters in the State of Washington rejected Initiative 1000, which would have repealed the state’s affirmative-action ban, by a 1-percent margin.
15Californians will consider Prop. 16, which would repeal Prop. 209, this November. In their ballot arguments, Prop. 16’s proponents contend that “voting YES on Prop. 16” is an “action to push back against racism and sexism and create a more just and fair state for all.” Opponents say repealing Prop. 209 will authorize “poisonous” racial discrimination and undermine fairness and justice for all.
16See Catalina Camia, Congressman stands by calling Clarence Thomas an ‘Uncle Tom’, USA Today (Apr. 30, 2014) (“A black congressman is sticking by his comment calling Supreme Court Justice Clarence Thomas an ‘Uncle Tom,’” citing “Thomas’ votes on Supreme Court cases dealing with voter identification laws and affirmative action.”). See also Ibram X. Kendi, There Is No Middle Ground on Reparations, The Atlantic (Jun. 19, 2019) (stating that anyone who does not support “reparations” like affirmative action is “racist” or standing on “racist ground”); Chauncey DeVega, Ibram X. Kendi on “How to Be An Antiracist”: Racism and capitalism “will ultimately die together”, Salon (Oct. 11, 2019) (predicting that an “antiracist” agenda, including affirmative action and other policies of racial preference, would “eliminate[ ] the likelihood that [White people] are going to consume racist ideas and then mass murder people”).
17Consider, for example, this respectful dialogue on affirmative action between Adam Mortara, one of the attorneys supporting Asian-American applicants’ suit against Harvard University, and Neal Katyal, who once was Acting Solicitor General under President Barack Obama, at Dartmouth College’s Osher Lifelong Learning Institute in 2019.
18See Conor Friedersdorf, Evidence That Conservative Students Really Do Self-Censor, The Atlantic (Feb. 16, 2020) (“While majorities favor more viewpoint diversity and free-speech norms, an intolerant faction of roughly a quarter of students believe it is okay to silence or suppress some widely held views that they deem wrong. . . . Students across political perspectives engage in classroom self-censorship.”).
19See John McWhorter, Academics Are Really, Really Worried About Their Freedom, The Atlantic (Sep. 1, 2020) (observing that “more than half the respondents” of a Heterodox Academy survey “consider expressing views beyond a certain consensus in an academic setting quite dangerous to their career trajectory”); Katherine Mangan, More Than Half of College Students Self-Censor When Race and Other Tough Topics Come Up, Survey Finds, The Chronicle of Higher Ed. (Sep. 29, 2020) (“About 60 percent of students kept an opinion to themselves because they were afraid of how students, a professor, or an administrator would respond.”). See also Erwin Chemerinsky, Hate speech is protected free speech, even on college campuses, Vox (Dec. 26, 2017) (“[I]t’s also become clear to me that current college students are often ambivalent, or even hostile, to the idea of free speech on campus.”); Kenneth Lasson, The Decline of Free Speech on the Postmodern Campus, 37 Quinnipiac L. Rev. 1 (2018) (analyzing the rise of the “heckler’s veto” on campus and examining the implications for First Amendment rights). Examples of firings and deplatformings are numerous. See, e.g., Matthew Ludlam & Matthew Reade, Protesters Shut Down BLM Critic, Threaten Student Journalists, Claremont Independent (Apr. 6, 2017) (recounting a partially successful effort to prevent Heather Mac Donald from speaking at Claremont McKenna College); Editorial Board, College’s decision to disinvite Leonard Leo feeds intolerance of different ideas, Bangor Daily News (Jul. 27, 2020) (criticizing the College of the Atlantic’s decision to disinvite Leonard Leo, a prominent figure in the Federalist Society, from a July 29 virtual event). See also FIRE, Disinvitation Database (last visited Oct. 8, 2020) (for an extensive list of campus disinvitations, both successful and attempted).
20See also Letter from Bari Weiss, Opinion Columnist, N.Y. Times, to A.G. Sulzberger, Publisher, N.Y. Times (Jul. 14, 2020) (“[A] new consensus has emerged in the press, but perhaps especially at this paper: that truth isn’t a process of collective discovery, but an orthodoxy already known to an enlightened few whose job is to inform everyone else.”).
21For just a handful of recent examples, see Rishika Dugyala, NYT opinion editor resigns after outrage over Tom Cotton op-ed, Politico (Jun. 7, 2020); Meera Jagannathan, A Taco Bell employee says he was fired for supporting Black Lives Matter, MarketWatch (Jun. 21, 2020); Mark Fischer, NBA announcer Grant Napear fired over ‘All Lives Matter’ comment, N.Y. Post (Jun. 2, 2020). See also Alina Tugend, Speaking Freely About Politics Can Cost You Your Job, N.Y. Times (Feb. 20, 2015) (pointing out that employers typically “ha[ve] great latitude to control your political actions,” given that more than eight in ten workers do not enjoy First Amendment protection against termination for political speech).
22This basic insight motivates the Supreme Court’s scrutiny of “chilling effects” of government regulation of speech. See, e.g., Lamont v. Postmaster General, 381 U.S. 301 (1965) (finding unconstitutional a law requiring the Postmaster General to seize communist political propaganda, because that “requirement is almost certain to have a deterrent effect” on speech, producing “some inhibition” among those who wish to consume communist materials, and “is at war with the ‘uninhibited, robust, and wide-open’ debate and discussion that are contemplated by the First Amendment”).
23F.A. Hayek, The Constitution of Liberty 82 (Ronald Hamowy, ed., Routledge 2020) (1960). See also id. (tracing this observation to the “classical argument for tolerance formulated by John Milton and John Locke and restated by John Stuart Mill and Walter Bagehot”).
24Hayek, The Constitution of Liberty 82.
25See Coleman Hughes, Affirmative Action: Towards a Coherent Debate, U. Chi. L. Rev. Online (Oct. 30, 2020).
26See James Richardson, Willie Brown: A Biography 379 (1996) (link). After Richter’s bid for the speakership failed, Brown, showing characteristic political finesse, managed to buy himself another five months as Assembly Speaker. For the full account of these events, see id. at 379–81.
273 Office of the Chief Clerk, Journal of the Assembly: Legislature of the State of California 1999–2000 Regular Session 4623 (link).

Essay

Affirmative Action at a Crossroads

Online

Affirmative Action: Towards a Coherent Debate

andreazhou2026 — Sat, 31 Oct 2020 03:02:10 +0000

Affirmative Action: Towards a Coherent Debate

Coleman Hughes

Coleman Hughes is a fellow at the Manhattan Institute and a contributing editor at City Journal, where his writing focuses on race, public policy, and applied ethics. His writing has been featured in the New York Times, the Wall Street Journal, National Review, Quillette, The City Journal, and The Spectator. Hughes has appeared on many podcasts and also hosts his own, Conversations with Coleman. In 2019, he testified before the U.S. Congress about slavery reparations.

andreazhou2026 Fri, 10/30/2020 - 22:02

October 30, 2020

This November, the citizens of California will vote on a proposition to remove the following words from their state constitution: “The state shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting.” These words, taken almost verbatim from the Civil Rights Act of 1964, were originally added in 1996 as part of Proposition 209—a successful effort to end racial preferences at state-funded institutions.

Although the Civil Rights Act of 1964 and Prop. 209 share similar language, the public attitude towards them could not be more different. The former is universally praised, while the latter has provoked bitter debate, falling along partisan lines, since its inception. To its supporters, Prop. 209 is an antiracist document in the same vein as the Civil Rights Act. To its critics, it is a reactionary document that has cut off the path to opportunity for millions of Blacks and Hispanics—in other words, it represents the forces that opposed the civil-rights movement.

Why is Prop. 209 the site of bitter debate despite being textually similar to a document that is universally praised? The reason stems from a fundamental disagreement over what constitutes “racism”—a disagreement that only became explicit in the years after the Civil Rights Act was passed. The disagreement is this: To some, “racism” refers to discrimination against an individual on the basis of race. To others, it refers to the end result of a process that yields unequal outcomes—where equality is understood to mean group-level parity between races. This is more than a semantic disagreement over the meaning of a word. It is a clash between competing visions for the rules that should govern multiethnic societies.

In this Essay, I will call the first view—the view that opposes racial preferences—“pro-equality.” I will call the second view, which supports racial preferences, “pro-equity.” (I have tried to choose labels that have a neutral or positive valence.)

The aim of this Essay is not to argue for any particular side (though I have published opinions on the subject). My more modest aim here is to clarify the terms of the debate. The purpose of this Essay is twofold: (1) to distinguish coherent positions on racial preferences from incoherent ones, and (2) to examine the strengths and weaknesses of each coherent position.

To begin, a coherent position on racial preferences (whether in favor or against) must accept that there is a public policy trade-off between equality and equity—between treating individuals without regard to race on the one hand and achieving equal results at the group level on the other. Getting more equality necessarily means getting less equity, and vice versa. For example, making the student body at Harvard University resemble the overall population (more equity) will require more racial discrimination against individual applicants (less equality). Conversely, ending all racial discrimination against applicants (more equality) will result in a student population that diverges more from the general population (less equity).

To deny that this trade-off exists would be to sidestep the core issue. To insist that this trade-off does not exist in every sector of American society, while true, is irrelevant for current purposes. One can hope for a day when this trade-off will no longer exist, a day when equality and equity go effortlessly hand in hand. One can even come up with policy proposals that would hasten the arrival of that day. But neither hopes nor policy proposals eliminate the trade-off as it exists today—or eliminate the need for an ethical analysis of it.

The moment we acknowledge the trade-off between equality and equity, we can eliminate one position on racial preferences as incoherent from the start: the view that we should maximize equality and equity at the same time, or put differently, that admissions officers and firms should fully prioritize treating applicants equally while also fully prioritizing group-level parity. However balanced this view may sound, it would only make sense if there were no trade-off between equity and equality to negotiate.

That leaves three coherent positions, each of which negotiates the trade-off in a different way. First, a person might be completely pro-equality—that is, they might believe that ending discrimination against individuals is categorically more important than achieving group-level parity. Second, a person might be completely pro-equity, categorically prioritizing equal outcomes over ending discrimination against individuals. Third, a person could take a middle path by saying that neither equity nor equality is categorically more important than the other. Rather than try to maximize either equity or equality, this third view settles for having less of each in exchange for having some of both.

Each position has its strengths and weaknesses. The pro-equality view is strong in that it completely opposes racial discrimination against individuals, and therefore gels effortlessly with the core principle of the civil-rights movement: judging a person by the content of their character rather than the color of their skin. As a result, a person who adopts the pro-equality view can never be put in the awkward position of defending racial discrimination in some cases (e.g., against Asian-American university applicants) while condemning it in others (e.g., against Black Americans).

The weakness of the pro-equality position is that it must accept any level of group-level disparity, no matter how starkly unequal, so long as that disparity was arrived at by means of a race-blind process. Consider a hypothetical: If a race-blind admissions process at Harvard were to yield a student body that was only 1 percent Black, someone with the pro-equality position could not fault Harvard admissions, or ask them to fix it. To be sure, they could blame systemic racism for this disparity and seek to address its root causes. But they would have to accept Harvard’s policies as not just acceptable, but morally required. Any discomfort at the near absence of Black faces on campus would have to be considered a price worth paying. Someone with the pro-equity position, by contrast, can never be put in the awkward position of seeming to justify the underrepresentation, or absence, of Black people from any particular sector of society.

The pro-equity position has its own strengths and weaknesses. A strength of the pro-equity position is that it offers a ready solution—a solution that can be implemented directly by institutions themselves—to the problem of racially unequal results. Faced with inequity, the pro-equality position may gesture to long-term public policy solutions, but it cannot give anyone at a non-government institution—a college dean or a CEO, for instance—anything to do directly and immediately. The pro-equity person, on the other hand, has a direct and an empowering message to such people: there is something concrete and measurable you can do right now—namely, increase the number of Black people you allow into your organization.

The weakness of the pro-equity position is that it must justify racial discrimination against some individuals in order to fight racial discrimination against others. On its face, this can seem like a contradiction. At minimum, the position requires a revision of the core principle of the civil-rights movement: the idea that racial discrimination is inherently evil. The pro-equity position must revise that principle and instead say that racial discrimination is contingently evil—contingent, that is, on whether such discrimination is increasing equity or reducing it. Insofar as racial discrimination is increasing equity, then not only is it not evil, it is morally required. By contrast, a pro-equality person can never be put in the awkward position of having to disagree with the principle that undergirded the civil-rights movement.

A second weakness of the pro-equity position is that its core principle—racially equal results—is applied selectively. Nobody complains about the overrepresentation of Black Americans in desirable sectors of society—such as the NBA—or their underrepresentation in undesirable metrics, such as suicide. As a result, it is open to question whether the equity principle is actually held earnestly or whether it is merely a trojan horse for a principle of Black ethnic chauvinism.

The middle-ground position—which accepts a less-than-total commitment to both equality and equity in exchange for having some degree of commitment to each—has its own strengths and weaknesses. It’s strong in that it compromises between what might be viewed as two extreme positions. As a result, it is a realistic and diplomatic option for any organization that includes both pro-equity and pro-equality individuals. Neither side can complain that its values are being completely ignored. Thus, the middle-ground position represents the spirit of compromise that allows ideologically diverse institutions to function.

Yet what the middle-ground position gains in pragmatism it loses in persuasiveness. The reason is that it dodges the most important question: What is “racism”? Is it racially discriminating against individuals? Or is it the net result of processes that yield unequal results? That is the fundamental question motivating the entire disagreement, to which the middle-ground position replies with a confused shrug. With a concept as emotionally and morally charged as racism, it may be seen as a cop-out to split the difference between positions that are fundamentally at odds with one another. To an unsympathetic observer, the middle-ground position amounts to saying something like this: “racism refers to racial discrimination against individuals but also refers to processes that yield unequal results, even though equal results can only be achieved by discriminating, which we have already agreed is racist.” At minimum, that stance is confusing; at most, it is unintelligible.

It is hopeless to expect that the affirmative-action debate will be settled anytime soon. But as the citizens of California re-evaluate Prop. 209, we can hold out hope that the debate will be held honestly, with parties on all sides being forced to acknowledge, and defend, the weak spots in their positions.

Essay

Antiracism Civil-Rights Movement Prop. 16 Prop. 209

Affirmative Action at a Crossroads

Online

Fifteen Questions About Prop. 16 and Prop. 209

andreazhou2026 — Sat, 31 Oct 2020 02:44:02 +0000

Fifteen Questions About Prop. 16 and Prop. 209

Richard H. Sander

Richard Sander is the Dukeminier Distinguished Professor of Law at UCLA, and co-chair of the UCLA-RAND Center for Policy Research. He has a doctorate in economics and a law degree from Northwestern University.

andreazhou2026 Fri, 10/30/2020 - 21:44

October 30, 2020

The extraordinary protests and marches that swept the United States during the late spring, in the wake of the death of George Floyd, centered on calls for racial justice, but specific proposals to define and achieve racial justice were scarce. Aside from calls to “defund” or at least “remake” police departments, the demands of many protesters seemed to boil down to an insistence that American institutions achieve something like proportional racial representation. One of the most tangible legislative proposals to flow from this, and one that is now playing out in California’s November election, is Proposition 16 (Prop. 16). In the Essay below, I imagine a sort of conversation between myself and someone trying to understand why Prop. 16 is on the ballot, and whether it is a good and useful idea.

1. What are Prop. 16 and Prop. 209?

California is one of many states where amendments to the state constitution must be approved by popular vote.1 In 1996, California voters approved, by a nearly 55-to-45 margin, Proposition 209 (Prop. 209), which amended the state constitution to provide, “the state shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting.” The measure followed the Regents of the University of California (UC Regents) passing in 1995 two measures, SP-1 and SP-2, that placed similar limitations on the university system. These measures ignited what had been a smoldering national debate over the proper limits of affirmative action. Both the UC measures and Prop. 209 were strongly supported by Pete Wilson, California’s popular Republican governor who, for a while, was a leading contender for the 1996 Republican presidential nomination. The central organizing force behind both SP-1/SP-2 and Prop. 209 was Ward Connerly, an eloquent African-American businessman whom Governor Wilson had appointed to the UC Regents in 1993.2 After the Prop. 209 victory, Connerly started a national movement to ban the use of racial preferences, leading several other referenda campaigns. By 2010, ten states or statewide university systems had adopted similar bans, though none have since that time.3

UC administrators almost universally opposed both SP-1/SP-2 and Prop. 209, and their opposition did not noticeably decline after the measures became law. In 1998, California elected its first Democratic governor in sixteen years, and the composition of the UC Regents (who were appointed by the governor and the state legislature) gradually became more liberal. Governor Arnold Schwarzenegger (2003–2010) and Governor Jerry Brown (2011–2018) continued to appoint moderate-to-liberal regents. In 2001, at the urging of UC’s administrative leadership, the Regents revoked SP-1 and SP-2, though this had no immediate practical effect because Prop. 209 had superseded both measures.

In 2012, again with the support of UC administrators, State Senator Edward Hernandez introduced “California Senate Constitutional Amendment 5,” which proposed to repeal Prop. 209. When the Senate passed the measure in January 2014, it precipitated widespread organizing and mass meetings within California’s Asian-American (and, particularly, its Chinese-American) community. Backers of SCA-5, taken aback by this opposition (and by the state Republicans’ emerging alliance with the opponents) withdrew the amendment before it came to a vote in the State Assembly.

In January 2019, opponents of Prop. 209 tried again, this time with much more preparation. Three Assembly members introduced “ACA-5,” a measure very similar to SCA-5, that also proposed to amend the California Constitution and eliminate Prop. 209’s anti-preference and antidiscrimination provisions. ACA-5’s backers had lined up a wide range of supporters, including, notably, some Asian-American civil-rights organizations. Defenders of Prop. 209 did not notice the new measure until March 2020, when it sailed through its first committee hearing. COVID-19 shutdowns substantially inhibited the ability of ACA-5 opponents to follow their 2014 playbook, so opposition was muted. ACA-5 was adopted by both the Assembly and the State Senate in June 2020 by more than the required two-thirds vote, with Democrats giving unanimous support. That put the measure on the November 2020 ballot, and the Secretary of State, within a few weeks, created the specific wording of Prop. 16.

2. Didn’t something like this happen in Washington State last year?

Yes. The State of Washington was the second, after California, to adopt a ban on racial preferences. Its “Initiative 200” passed in 1998 with a 58-percent majority and, like Prop. 209, faced significant opposition and resistance from leaders at the University of Washington and in state government. In 2019, the Washington state legislature approved “Initiative 1000,” which would have repealed the ban on racial preferences. Opponents to Initiative 1000—again, led by Asian Americans—gathered enough signatures to put a referendum on “Initiative 1000” on the November 2019 ballot. By a narrow margin (50.5 percent to 49.5 percent), voters rejected Initiative 1000, keeping the racial-preference ban in place.

3. Why has the Prop. 16 debate centered on the University of California?

This is certainly somewhat puzzling. Prop. 16 would affect all state and local government activities and programs in California, and UC accounts for only about 3 percent of state expenditures. On the other hand, debates about public-sector affirmative action have always been centered on elite higher education (witness the Supreme Court cases involving the University of Texas (2013, 2016) and the University of Michigan (2003), and the current Harvard lawsuit before the First Circuit).4 The University of California is in many ways the jewel of public universities in America. Moreover, these debates are dominated by California “elites”—legislators, journalists, lawyers, professors—who often have ties to the University of California or hope to send their children there.

4. Why is the “short-form” wording of Prop. 16 controversial?

Those involved in these debates have long known a basic fact: the public broadly supports “affirmative action” efforts aimed at helping disadvantaged groups but opposes “racial preferences.” A 2018 Gallup poll asked Americans whether they “generally favor or oppose affirmative action programs for racial minorities.” Sixty-one percent of respondents said they were in favor, while 30 percent were opposed. A 2019 Pew survey found that 75 percent of Americans thought it was “very or somewhat important” for “companies and organizations to promote racial and ethnic diversity in their workplace.” But consider, in contrast, this question posed by Pew: “When it comes to decisions about hiring and promotions, do you think companies and organizations should take a person’s race and ethnicity into account, in addition to their qualifications, in order to increase diversity in the workplace, [or should they] only take a person’s qualifications into account, even if it results in less diversity in the workplace?” Seventy-four percent of respondents said only qualifications should play a role.

Are people just confused, or is there a real difference between “racial affirmative action” and “racial preferences”? There is a difference. “Affirmative action,” as originally conceived and implemented by various federal agencies in the early 1960s, focused on trying to improve the pool from which people were chosen for a job, a contract, or a university slot. This meant bypassing the “old boy network” through outreach, making sure that every potential applicant had the information and tools to understand potential opportunities and compete for them. Preferences entered the picture at the end of the 1960s and early 1970s, when many critics said that traditional affirmative action was not producing adequate results.

The difference in public support for “affirmative action” versus “preferences” is all-important in the Prop. 16 campaign. If proponents can persuade voters that Prop. 16 is a measure to permit “affirmative action,” then they are likely to win. If opponents can persuade voters that Prop. 16 will institutionalize racial preferences, then the measure will likely fail. Naturally, both sides had their own view of how the Secretary of State should summarize Prop. 16 on the ballot.

The “ballot title” of Prop. 16 was not a complete win for either side. It states that the measure would “allow diversity as a factor in public employment, education, and contracting decisions.” Someone reading the more detailed language that follows can figure out that Prop. 16 would allow the government to use racial and gender preferences, but it is not obvious.

5. Isn’t the difference between “affirmative action” and “racial preferences” somewhat academic? Didn’t Prop. 209, so far as the University of California is concerned, effectively get rid of both?

Absolutely not—and that is key to understanding this entire issue. In the years before Prop. 209, UC engaged in relatively little outreach to disadvantaged communities. It simply augmented its normal admissions pool (under which the top eighth of California high school students are automatically eligible for admission to some UC school) with a race-conscious “special admissions” procedure. The result was that the pool of Black and Hispanic applicants, and the number of minority students admitted to UC, was stagnant or, in the case of Black admits, actually declining from 1989 through 1997 (see Tables 1 and 2, below).

In 1997, faced with the loss of the ability to use racial preferences, UC embarked on a massive, multiyear effort to build bridges to disadvantaged schools across California.5 It started counseling low- and moderate-income students on how to complete the necessary high school course requirements to be UC-eligible; many UC colleges formed partnerships with underperforming high schools; and the university began to systematically take individual disadvantage (e.g., low socioeconomic status) into account in admissions decisions.6 In other words, ending racial preferences ushered in the beginning of traditional “affirmative action” strategies at UC—which, by the way, were perfectly legal under Prop. 209. Of course, these outreach efforts could not be racially discriminatory—Asian-American students, for example, could not be barred from counseling sessions—but they were sufficiently targeted so that the overwhelming majority of beneficiaries of the outreach efforts were Black and Hispanic.

The university reformed admissions procedures as well. Some UC campuses had probably used socioeconomic preferences to some degree before Prop. 209, but post-Prop. 209, these preferences were somewhat expanded and systematized. Such preferences were, of course, completely legal, and although these preferences disproportionately benefited Blacks and Hispanics, they changed the focus of admissions officers from “group representation” to “individual hardship” and “obstacles overcome.” By the early 2000s, over a third of UCLA freshmen had received Pell Grants, which are generally available to persons in the bottom half of the income distribution, compared to around 10 percent of freshmen at elite colleges more broadly.

6. Did the new outreach efforts make a tangible difference?

Yes, indeed. They produced a dramatic increase in applications from low- and moderate-income students, especially from Blacks and Hispanics.7 While Black applications to UC were 2,191 in 1989 and 2,141 in 1997 (the last year before Prop. 209 went into effect), they had risen to 3,307 by 2006 and 5,978 by 2013—a stunning turnaround (see Table 1). Hispanic applications rose at a still faster rate, even when one takes into account the growing share of the population that was Hispanic.

Table 1. UC Application Volume Before and After Prop. 209
	1989	1997	1998	2006	2013
African Am.	2,191	2,141	2,151	3,307	5,978
Hispanic	5,273	6,933	7,285	13,656	31,908
Asian Am.	8,165	12,367	12,205	18,742	22,180
Race not known	1,567	1,738	7,556	3,263	2,979
White	22,307	20,870	18,149	24,926	26,881
Total	41,460	49,030	52,301	71,011	99,447

Unique applications from California high school students to UC in year by race. Source: UC Application, Admission and Enrollment of California Residential Freshmen for Fall 1989 through 2013 (UCOP, 1/14)

In short order, these changes produced similar, though less dramatic, increases in underrepresented minority (URM) enrollment. There was a short-term drop in both Black and Hispanic enrollment (from 1997 to 1998), as UC got its new outreach and socioeconomic-status (SES) initiatives underway. But by 2000, enrollment levels for these groups had recovered and, within a few years, reached new highs.

Table 2. Trends in Freshman Enrollment at the University of California, 1989–2013
	1989	1997	1998	2006	2013
African Am.	1,177	917	739	1,072	1,333
Hispanic	2,991	3,131	2,948	5,481	9,322
Asian Am.	4,275	6,909	6,979	11,334	9,973
Race not known	784	774	3,441	1,496	1,047
White	10,314	9,451	8,257	10,687	7,933
Total	20,534	23,682	24,877	33,540	33,135

Total UC freshman enrollment from California high schools in year by race. Source: UC Application, Admission and Enrollment of California Residential Freshmen for Fall 1989 through 2013 (UCOP, 1/14). Columns do not sum to total because some smaller racial categories are omitted.

7. Yet one regularly hears that minority enrollment at Berkeley and UCLA crashed after Prop. 209.

First-year URM enrollment had been declining at Berkeley and UCLA even before Prop. 209, and declined further afterwards (see Table 3). Prior to Prop. 209, those two campuses used much heavier racial preferences than the other six campuses did. The Black-White gap in SAT scores at Berkeley in the early 1990s was 288 points, according to an analysis published in the Journal of Blacks in Higher Education. For URMs as a whole in the mid-1990s at Berkeley and UCLA, about 90 percent of Asian-American applicants had stronger academic credentials than the median URM applicant, but the URM admissions rate was double the rate for Asian Americans. Given these differentials, it was inevitable that Black and Hispanic numbers at these two campuses would decline under a race-neutral regime.

Table 3. California URM enrollment at the “most elite” and other UC colleges, 1989–2013
	1989	1997	1998	2006	2013
African Am.	606	453	260	243	318
Hispanic	1,353	1,034	700	1,122	1,587

Total UC freshman enrollment from California high schools at Berkeley and UCLA by URM race and year.

Table 3. California URM enrollment at the “most elite” and other UC colleges, 1989–2013
	1989	1997	1998	2006	2013
African Am.	571	464	479	829	1,015
Hispanic	1,638	2,097	2,248	4,359	7,735

Total UC freshman enrollment from California high schools at all other UC campuses by URM race and year. Source: UC Application, Admission, and Enrollment of California Residential Freshmen for Fall 1989 through 2013 (UCOP, 1/14)

But I believe this was a good thing. In the first place, the ultra-aggressive preferences at Berkeley and UCLA in the early- and mid-1990s had the effect of concentrating half of all Blacks and a third of all Hispanics in the UC system at these two campuses. Relative to Whites and Asians, Blacks and Hispanics were more integrated across the UC system after Prop. 209 than before it. Second, huge racial preferences created a big academic gap between URMs and non-URMs at Berkeley and UCLA. From 1992 to 1994, Blacks had a 13.5-percent four-year graduation rate at UCLA—an appallingly low rate.8 In this environment, Blacks and Hispanics had much lower grades, were far more likely to drop out, and were much less likely to graduate on time (or to graduate at all) compared to Whites and Asian Americans. All those gaps greatly narrowed after Prop. 209.

8. I think you’re now referring to the “mismatch” issue.

Yes. The mismatch hypothesis suggests that students are academically harmed when they attend classes or schools where nearly all the other students have much stronger levels of academic preparation.9 Imagine, for example, a student who wants to become a chemist and maybe teach chemistry at a university. Her high school grades and test scores are solid, but not stellar, and her high school offered Honors Chemistry but not Advanced Placement Chemistry. She nonetheless receives a preference to UC Berkeley and is surrounded by classmates who do have stellar grades and test scores and scored “5s” in AP Chemistry. She might be inspired by the competition and rise to the challenge, but she is much more likely to be flummoxed. She has difficulty keeping up in the first-year chemistry course, gets a mediocre grade the first quarter, and falls even further behind in the second quarter. This student is, at a minimum, likely to be dissuaded from the idea of an academic career and switch from chemistry to a less difficult field. At worst, she may drop out of college, or take six years to attain a degree in a new field, and have a mediocre transcript. This same student at a somewhat less competitive but still excellent school, such as UC Santa Barbara, is much more likely to thrive, stick with chemistry, and achieve her academic aspirations.10

Mismatch has been documented in several careful studies by eminent social scientists whose work remains unrebutted.11 Prop. 209, as you can imagine, provided a great “natural experiment” for assessing the mismatch hypothesis. Unfortunately, UC has played politics with the issue, giving only limited data to independent scholars while giving access to “secret” data to in-house researchers. The independent scholars have nonetheless produced high-quality research that has been published in top-flight social science journals, like the American Economic Review, and their findings come down heavily in favor of the mismatch hypothesis.12 Some of the in-house scholars have disagreed, but they have not made their data, or the basis for their conclusions, public and available for replication.

Academic findings aside, the numbers tell such an overwhelming story that they largely speak for themselves.13 The four-year graduation rate of URMs in the UC system nearly doubled in the ten years after Prop. 209’s adoption. The number of African-American graduates slightly dipped initially (again, before UC’s new outreach efforts kicked in), but had risen to a record level by 2006 (roughly corresponding to students entering in 2001), and by 2017 the number of Black UC graduates had risen 70 percent above pre-Prop. 209 levels. A higher proportion of these graduates were in the sciences, so that the number of Black STEM UC graduates rose from an annual average of around 200 before Prop. 209 to 510 in 2017 and 558 in 2018. The numbers for Hispanics were even more impressive: the number of Hispanic UC graduates quadrupled over the twenty years after Prop. 209, and the number of Hispanic UC graduates in STEM fields quintupled.

In short, within a few years of Prop. 209’s implementation, URMs were flourishing at UC, in both absolute and relative terms, to a degree they never had before.

9. If these numbers are so impressive, why does one continually hear that URMs are “underrepresented” at the university?

Much depends on what you mean by “representation” and why you are asking the question. UC is, by design, intended for the most academically successful high school students. Under the California Master Plan adopted in the 1960s, UC was required to admit students from the “top eighth” of California high school graduates. The Cal State system, an equally large system with many outstanding programs, is required to admit students from the “top third.” And the California community college system provides even broader access, admitting anyone who meets fairly basic academic requirements. Students who do well at the community-college level transfer in large numbers to UC to finish their degrees.

Now, this top-eighth requirement for UC admission had been broadened in various ways over the years, often to make sure that the “elite” schools are not unfairly excluding people who have not had the same access to AP courses or other advantages. But the UCs remain selective campuses—in some cases, highly selective—and if one is evaluating the pool from which UC should admit, it only makes sense to apply some academic criteria to the definition of that pool.

The tables below illustrate what I am talking about. Table 4 shows the racial makeup of California high school graduates, and UC freshmen admitted from California, in 1997 and 2017. The ratios in columns (c) and (f) show “relative representation” when one considers this whole universe of high school graduates. (For example, the first number in column (c), .51, is the ratio of column (b) to column (a), and means that, in the late 1990s, the average Black high school graduate in California had 51 percent as great a chance as a random high school graduate of attending UC as a freshman.) By this measure, the representation of URMs went up sharply between 1997 and 2017, though their level of representation was still far below that of Asian Americans.

Table 4. Comparing UC enrollment of California freshmen to California high school graduates, 1997 and 201714
Race	% HS Grads (a) (1997)	% UC Calif. Freshmen (b) (1997)	Rel. Rep. (c) (1997)	% HS Grads (d) (2017)	% UC Calif. Fresh. (e) (2017)	Rel. Rep. (f) (2017)
Black	7.6%	3.9%	.51	6.4%	4.8%	.75
Hispanic	33.0%	13.2%	.40	46.9%	32.3%	.69
Nat. Amer	0.6%	0.8%	1.2	0.4%	0.5%	1.2
Total URM	41.2%	17.9%	.43	53.7%	37.6%	.70
Anglo	41.9%	39.9%	.95	29.5%	21.5%	.73
Asian	13.9%	37.1%	2.7	13.3%	38.0%	2.9
Other	3.0%	5.1%	1.7	3.5%	2.8%	.80
Total	100%	100%		100%	100%

Tables 5 and 6 add academic context to the demographic data. Using data from the College Board, I compare UC students with the pool of high school graduates who are in the top half, top third, and top eighth of California high school students, for both 1997 (Table 4) and 2017 (Table 5). Several striking patterns stand out. First, representation of URMs as a whole at UC improves markedly from 1997 to 2017, by any measure. Second, Black and Hispanic representation numbers converge between 1997 and 2017—tangible evidence that UC moved from primarily racial preferences (which favored Blacks) to socioeconomic preferences (which favored both Blacks and Hispanics, more or less equally). Third, by any academic measure, Whites emerge as the most underrepresented group in 2017. And fourth, when we use the top-eighth measure (in red in both tables), which is the measure most in tune with UC’s avowed academic standard for admission, Asian Americans are no longer overrepresented relative to URMs.15

Table 5. Comparing 1997 UC enrollment of California freshmen with California high school graduates, by “academic index” ranking
	Racial makeup of Cal. HS Grads with academic index in top:			***	Relative representation by standard of the pool at the top
Race	Half (a)	Third (b)	Eighth (c)	% UC Calif. Freshmen (d)	Half (e)	Third (f)	Eighth (g)
Black	3.2%	2.3%	1.0%	3.9%	1.2	1.7	3.9
Hispanic	21.3%	17.7%	12.5%	13.2%	0.62	0.75	1.1
Am. Ind.	0.7%	0.6%	0.4%	0.8%	1.1	1.3	2.0
URM tot.	25.2%	20.6%	13.9%	17.9%	.71	.87	1.3
Anglo	51.6%	53.1%	54.9%	39.9%	.77	.75	.73
Asian	17.6%	19.4%	21.9%	37.1%	2.1	1.9	1.7
Other	3.6%	3.9%	5.3%	5.1%	1.4	1.3	1.0
Total	100.0%	100.0%	100.0%	100%

Table 6. Comparing 2017 UC enrollment of California freshmen with California high school graduates, by “academic index” ranking
	Racial makeup of Cal. HS grads with academic index in top:			***	Relative representation by standard of the pool at the top
Race	Half (a)	Third (b)	Eighth (c)	% UC Calif. Freshmen (d)	Half (e)	Third (f)	Eighth (g)
Black	4.0%	3.0%	2.6%	4.8%	1.2	1.6	1.8
Hispanic	33.4%	27.2%	17.9%	32.3%	1.0	1.2	1.8
Am. Ind.	0.3%	0.3%	0.2%	0.5%	1.7	1.7	2.5
URM tot.	37.7%	30.5%	20.7%	37.6%	1.0	1.2	1.8
Anglo	40.0%	44.0%	48.3%	21.5%	.54	.49	.45
Asian	18.3%	20.9%	25.6%	38.0%	2.1	1.8	1.5
Other	4.0%	4.6%	5.3%	2.8%	.70	.61	.53
Total	100.0%	100.0%	100.0%	100.0%

The reason why the “representation” numbers change so much when we consider academic performance is that there are very large performance and preparation gaps along racial lines—not just in California, but in America generally. It is fashionable to contend that these are simply reflections of poor schools in nonwhite communities, but very careful research has shown, for example, that two-thirds of the high school Black-White test score gap exists by the age of five. Race itself does not explain the gap, but many factors that correlate with race create it, such as low birthweight, fewer books at home, and parenting practices.16

The apparent view of many advocates of Prop. 16 is that the problem is not with the academic preparation of students, but with the flawed measures that UC and other universities use to measure preparation. This was a key sentiment behind the UC Regents’ decision, in April 2020, to forbid UC schools from considering SAT scores in the undergraduate admissions process. This is a sadly misconceived argument, however, since many measures of high school achievement, including the National Assessment of Educational Progress, show the same racial gaps as the SAT. Ignoring credentials ultimately means eliminating the academic selectivity of the UC admissions process, or creating serious mismatch problem for URMs, or both.

Before Prop. 209, I believe that people from low socioeconomic backgrounds were significantly underrepresented, even after adjusting for academic preparation. UC was not doing enough outreach to find very promising students attending weak high schools. Prop. 209, as I have explained, did a lot to solve that problem. Today, by any meaningful standard, it is, ironically, the Whites who are the most underrepresented group. I daresay that very affluent Whites are still managing fine, but low-SES Whites—of whom there are many in California—are disproportionately overlooked by the current system.

10. One also hears that URMs—Blacks in particular—feel isolated on UC campuses, and that increased diversity would help.

Before Prop. 209 passed, one of the widespread predictions in circulation was that eliminating racial preferences would have a “chilling effect” upon URMs, particularly Blacks. The idea was that they would perceive UC as less welcoming, and therefore not apply at all, or turn down admissions offers if they were accepted. In fact, however, just the opposite happened, and in a big way. As I’ve already discussed, the sheer numbers of Black and Hispanic applicants jumped dramatically after Prop. 209. But even more surprising is that URMs became substantially more likely to accept admissions offers after race neutrality went into effect in 1998. Economist Kate Antonovics and I investigated this some years ago, and we called what we found a “warming effect.” URMs were more eager to attend UC after preferences were eliminated, and the size of the warming effect was directly proportional to how large the racial preferences had been before Prop. 209.

The obvious explanation of the warming effect—and one supported by lots of indirect evidence—is that URMs welcomed the idea of attending a campus where there would be no stigma attached to them as “only getting in through a preference.” This makes common sense, of course—who would want to deal with the suspicion of getting in through the back door? URMs probably also recognized that the value of a UC degree for Blacks and Hispanics went up after Prop. 209. Employers often take one’s university as a proxy for ability—but since employers are aware that most elite universities use large racial preferences, they presumably discount the “credential effect” for Blacks and Hispanics graduating from elite schools. After Prop 209, such discounting of a UC degree would make no sense. Even high school students can appreciate this logic. In any case, the warming effect was large and very real.

11. You observed earlier that Blacks and Hispanics, at the group level, lag behind in high school academic achievement, and this impairs their numbers at UC. How do we deal with that problem?

We start by acknowledging that it is a problem. Many of the Prop. 16 proponents who demand proportionate representation at the university are pretending that the achievement gap does not exist. Getting rid of SAT scores, for example, is a way of papering over the problem, not dealing with it.

One real solution is investing more in underperforming high schools—and California has actually done that over the past generation. Consider this important but generally unheralded fact: the proportion of Hispanic high school students in California who graduate has risen from 66 percent to 88 percent over the past twenty years—a very big achievement unequalled anywhere else in America. The proportion of Blacks achieving grades and test scores near the top of their high school classes has also increased steadily in California—and here again, that achievement has not been duplicated in most of the rest of the nation. There is still a substantial achievement gap, but California—arguably because of Prop. 209, rather than in spite of it—has made very substantial progress.

12. Much of the frustration that has led to proposals like Proposition 16 stems from a feeling that levels of racial inequality in our society are simply not acceptable. What would you do about that?

Thank you for asking. There actually is an important solution that people are not talking about nearly enough, and that is reducing housing segregation. Out of the nation’s sixty largest metropolitan areas, about ten have made substantial progress in lowering levels of Black/White housing segregation. And in every one of those metro areas, Blacks have made dramatic gains in employment levels, income levels, health outcomes, life expectancy—and yes, test scores. Several of these metro areas with lower segregation are in California, including San Diego and Sacramento. Housing segregation in most of the United States is still very high, and it is as close to a genuine “root cause” of inequality as anything we are likely to identify. It of course is the main source of school segregation; it separates minorities from suburban jobs; it concentrates them in areas with weaker health care systems; and it also seems to influence behavior and norms in counter-productive ways. Moreover, there are a number of straightforward ways to reduce segregation, like providing mobility counseling that encourages people (of all races) to consider integrated neighborhoods, or helping to stabilize moderate-income housing in gentrifying neighborhoods.

So there are solutions to racial inequality. But they do not lie in legalizing discrimination to create racially proportional university admissions. That not only papers over the real problems, but also, as I have pointed out, hurts the people it is intended to help.

13. If Prop. 16 would be as counterproductive as you suggest, why are UC leaders supporting it?

I can think of four reasons. First is the problem of cancel culture—the fear of being ostracized if one says something that can be portrayed as racially insensitive. This fear is greater in academia than in American society generally, and it is greatest in the ranks of university administrators. Literally two hours before I started writing my answer to this question, a senior faculty member at UCLA—a nonwhite with liberal views—told me how much he appreciated that I spoke publicly about “things that most of us believe privately.” Dozens of my colleagues have said similar things, and also often note that it is simply too difficult and too risky to express those views in public discussions.

Second, there is an unwillingness to admit a mistake. Many UC administrators genuinely feared in 1996 that, without preferences, URM numbers at the university would tank and never recover. They were very public about these fears, and continued to predict doom even after Prop. 209 passed. They therefore became invested in confirming their own biases, ignoring the growing evidence that Prop. 209 was actually a boon for URMs at the university, and that large racial preferences had done great harm. The path of least resistance—especially for administrators—is to cling to the powerful “groupthink” that views Prop. 209 as a reactionary measure passed by social deplorables.

Third, UC administrators face relentless pressure from state legislators—especially a very powerful Latinx caucus—to increase URM numbers. By 2010 or so, UC had done pretty much everything that could be done legally to raise those numbers. With a little courage, those administrators would have confronted legislators and said, “Look, URMs are now substantially overrepresented by any reasonable measure of the qualified pool. Doing more would violate the law and reintroduce the mismatch problem to the university.” But instead, UC officials have increasingly connived at reintroducing race in a variety of ways. Now they are trapped, and Prop. 16 would give them a legal path forward.

And fourth and finally, there is a lack of imagination and courage in presenting proactive, forward-looking strategies to attack problems like housing segregation. Both university leaders and political leaders have suffered from simple intellectual laziness in not thinking hard about root causes.

14. Do you think Prop. 16 will pass?

If you visit Ballotpedia and look at the list of Prop. 16 supporters, versus the opponents, it is quite overwhelming. Dozens of organizations have endorsed Prop. 16, as have California’s two leading newspapers. The supporters have raised millions of dollars; as of this writing, they have something like a 20:1 fundraising advantage over the opponents. California is one of the most liberal states in the country, and the Floyd protests have given a new urgency to diversity goals. So, many observers thought that Prop. 16 would be a shoo-in.

But in September 2020, during the writing of this piece, the Public Policy Institute of California released the first public opinion poll on Prop. 16. In their results, only 31 percent of likely voters supported Prop. 16, while 47 percent opposed it and 22 percent were undecided. Strikingly, a plurality of Hispanic voters opposed Prop. 16 as well. This suggests that a fair number of voters are aware that Prop. 16 is about racial preferences, not just about “affirmative action,” and that the long-standing popular skepticism about racial preferences still persists, even in California.

15. Does University of California’s experience with race-neutrality provide lessons that are relevant to the arguments of other contributors to this series?

I think so. For example, the key point of Coleman Hughes’ essay is that there is a fundamental trade-off between “pro-equality” policies—treating everyone the same—versus “pro-equity” policies, which aim to achieve equal outcomes across groups. Hughes is quite right that this distinction is important and is often lost (or deliberately obscured) in affirmative-action debates. But UC’s experience under Prop. 209 shows that the two are not necessarily in conflict. Implementing race-neutral admissions had three big effects: (1) it reduced mismatch for Blacks and Hispanics, thus greatly improving their outcomes at UC; (2) it made UC more attractive to them (the “warming effect”); and (3) it prodded UC to launch much better-funded and better-conceived outreach and remedial efforts, which were both lawful and disproportionately beneficial to Blacks and Hispanics. UC’s graduation numbers before and after Prop. 209 leave no doubt that race-neutral admissions were a win-win for both equality and equity.

Daniel Ho and Alice Xiang argue that outcome-predicting algorithms that take race into account can improve fairness but are overly restricted by current interpretations of antidiscrimination law. Here, too, the Prop. 209 experience—and research on college and professional school outcomes—is helpful in suggesting how their ideas can be constructively applied. Careful research on college admissions shows that taking race into account in an algorithm does not improve our prediction of how students will perform in college or professional school, if we carefully control for their prior level of academic achievement and (sometimes) their socioeconomic status. Since college admissions officers almost uniformly desire to use racial preferences (it makes their diversity efforts easier), the discipline of strictly race-neutral algorithms is more likely to achieve fairness and good results.

In contrast, there is no doubt that UC’s post-Prop. 209 outreach programs took race into account in coming up with “algorithms” (formalized or not) about where to target efforts; UC was particularly eager to make sure that it built the pipeline from Black and Hispanic communities to UC. In a strict sense, this may have violated Prop. 209, but not in a way that ever did, or ever would be likely to, prompt litigation. Indeed, creating a more formal algorithm to predict, today, where outreach is most likely to be effective (say, by measuring the increase in competitive applicants from a high school following a UC intervention) would be beneficial, and might actually reveal that UC is underinvesting in low-income White communities, whose members, as I showed earlier, are now most underrepresented at UC.

All this is to say that carefully studying and learning from UC’s actual experience with Prop. 209 provides rich lessons applicable to the full spectrum of discussions that aim to think clearly about, and apply fairly, the lessons of affirmative action.

1See Cal. Const., art. II. See also The Constitutions of California and The United States, with Related Documents (2017–18 ed.).
2The story of Prop. 209 is recounted in Richard H. Sander & Stuart Taylor, Jr., Mismatch: How Affirmative Action Hurts Students It’s Intended to Help, and Why Universities Won’t Admit It, ch. 7 (2012).
3Arizona was the last, when voters adopted Proposition 107 in 2010 by a 59–41 margin.
4These cases are Fisher v. University of Texas at Austin (Fisher I and Fisher II); Gratz v. Bollinger; Grutter v. Bollinger; and Students for Fair Admissions v. Harvard.
5See Thomas B. Timar, Rodney Ogawa & Marie Orillion, New Directions for Outreach: Report of the University of California Outreach Task Force (July 1997) (link); Karl Pister, UC Outreach: Systemwide Perspective and Strategic Plan (Sep. 1998); Denise D. Quigley & Seth Leon, The Early Academic Outreach Program (EAOP) and Its Impact on High School Students’ Completion of the UC Preparatory Coursework (Mar. 2002) (link).
6Kate Antonovics & Ben Backes, The Effect of Banning Affirmative Action on College Admissions Policies and Student Quality, 49 J. Hum. Res. 2 (2014).
7The Quigley and Leon report, for example, found that the Early Academic Outreach Program, launched by UC after Prop. 209, doubled the likelihood that disadvantaged high school students would complete the course requirements for UC admission.
8Data compiled by the author from UC Statfinder in 2010. That website is now defunct; current data posted by the university does not extend back this far.
9Rigorous experimental demonstrations of the mismatch effect include: Esther Duflo, Pascaline Dupas & Michael Kremer, Peer Effects, Teacher Incentives, and the Impact of Tracking: Evidence from a Randomized Evaluation in Kenya, 101 Am. Econ. Rev. 1739 (2011); and Scott Carrell, Bruce Sacerdote & James West, From Natural Variation to Optimal Policy? The Importance of Endogenous Peer Group Formation, 81 Econometrica 855 (2013).
10One of the most convincing demonstrations of the mismatch effect in the sciences is Frederick L. Smyth & John J. McArdle, Ethnic and Gender Differences in Science Graduation at Selective Colleges with Implications for Admission Policy and College Choice, 45 Research in Higher Ed. 353 (2004). The best work on how mismatch erodes the academic aspirations of students receiving large preferences is Stephen Cole & Elinor Barber, Increasing Faculty Diversity, ch. 8 (2003).
11None of the studies in the preceding footnotes have been rebutted or even seriously critiqued, to my knowledge.
12Peter Arcidiacono, Esteban M. Aucejo & V. Joseph Hotz, University Differences in the Graduation of Minorities in STEM Fields: Evidence from California, 106 Am. Econ. Rev. 525 (2016); Peter Arcidiacono, Esteban M. Aucejo, Patrick Coate & V. Joseph Hotz, Affirmative Action and University Fit: Evidence from Proposition 209, 3 IZA J. Labor Econ. (2012).
13I summarize and document a number of these trends in a working paper on file with the University of Chicago Law Review. See Richard Sander, A Brief Commentary on Zachary Bleemer’s August 2020 Paper (working paper, 2020). Also, a wide variety of summary tables on admissions, enrollment, and graduation patterns for both undergraduates and graduates in the UC system can be found online at UC Infocenter, though some work is required to ferret out the relevant data.
14Sources are census data and UC data.
15The methodology and sources for this analysis are elaborated in much more detail in a memorandum to the UC Regents that I prepared in September 2020. That memorandum is on file with the Law Review.
16Roland G. Fryer & Steven D. Levitt, Understanding the Black-White Test Score Gap in the First Two Years of School, 86 Rev. Econ. & Statistics 447 (2004).

Essay

Graduation Rates Prop. 16 Prop. 209

Affirmative Action at a Crossroads

Online

Good Trouble

andreazhou2026 — Sat, 31 Oct 2020 01:23:55 +0000

Good Trouble

Girardeau A. Spann

I would like to thank Richard Chused, Lisa Heinzerling, Pat King, Mike Seidman, and Mark Tushnet for their help in developing the ideas expressed in this Essay. Research for this Essay was supported by a grant from the Georgetown University Law Center.

andreazhou2026 Fri, 10/30/2020 - 20:23

October 30, 2020

The widespread, controversial protests against racial injustice that began in the spring of 2020 offer hope that U.S. culture may be evolving to a more sophisticated conception of racial equality. The contemporary clash between competing visions of race is illustrated perhaps most clearly in the debate about affirmative action—a debate that often occurs in the context of education. To date, the culture has acquiesced in Supreme Court resolution of the competing arguments. And the Court has become more hostile to affirmative action as its dominant voting bloc has become more conservative—a trend that seems likely to continue. When the Court invalidates an affirmative-action program, it is behaving in a countermajoritarian manner, even though it is difficult to find anything in the Constitution that justifies the judicial usurpation of racial policymaking power from the representative branches of government. Therefore, it is hard to understand why a democratic society would entrust the formulation of racial policy to a politically unaccountable Supreme Court—the history of which reveals a longstanding commitment to the interests of the White majority at the expense of racial minorities—unless it is because the culture tacitly knows that the Court will typically let the White majority win, thereby implicating the Court in the very system of racial discrimination on which it is asked to rule.

During what has been termed an “American Spring of Reckoning,” the distressingly cavalier murder of a Black man named George Floyd by a White Minneapolis police officer named Derek Chauvin prompted an unexpectedly prominent and sustained public outcry against the persistence of racism in the United States. Race-based statistical disparities concerning everything from police shootings of unarmed civilians to infection and death rates from the COVID-19 pandemic have come to alarm even White members of the American public. However, the Supreme Court reads the Constitution to prohibit only narrowly defined forms of intentional discrimination, thereby rendering largely irrelevant evidence of racially disparate impact—the term used to describe discriminatory effects. The question is whether the culture’s new-found concern for racial justice will last. Or whether—like the exuberance surrounding our prior constitutional moments—it will dissipate before it can be transformed into a “New Reconstruction” that offers a chance at meaningful racial equality.

If the culture’s current passion for racial equality is on the precipice of evolving into meaningful social change, rather than degenerate into mere transient rhetoric, the culture will have to retrieve its social policymaking power from the Supreme Court. The surest way for American culture, and its politically accountable representatives, to recapture political policymaking power is to insist that the Supreme Court defer to popular demands for racial equality. Prior to his unfortunate death in July 2020, civil rights hero John Lewis was fond of quoting the phrase “If not us, then who? If not now, then when?” In the midst of the current culture’s vocal objections to stark racial disparities, the “when” may actually be “now.” The frontal attack that I am advocating on the Supreme Court’s racial policies may seem like an unsettling attack on judicial review itself. But John Lewis had a quote for that too. He reminded us that we “have a moral obligation, a mission and a mandate, to speak up, speak out and get in good trouble.”

This Essay is an invitation for us to “get in good trouble” by rejecting the role that Supreme Court judicial review has stubbornly played in the formulation of the nation’s unjust race-relations policy. Part I describes the evolution of the Supreme Court’s affirmative-action jurisprudence, emphasizing the current Court’s efforts to minimize the significance of race in the context of education. Part II characterizes the Court’s adoption of an intentional-discrimination standard as a continuation of the Court’s longstanding effort to advance the interests of the White majority at the expense of racial minorities. Part III suggests that the widespread cultural dissatisfaction with racial disparities that has emerged in the wake of the George Floyd killing should prompt the Court to reconsider its dismissal of disparate impact. Notwithstanding common skepticism about the Federalist No. 78 claim that the judiciary is the least dangerous branch, the Essay concludes that a Supreme Court ultimately dependent on popular support may actually end up being subject to the will of the people.

I. Evolving Affirmative Action

The Supreme Court has read the Constitution to impose limits on the ways in which the United States can remedy its persistent problem of racial discrimination—a problem that has existed since before the country was founded. Many of the Court’s limits constrain the nation’s ability to adopt racial affirmative-action programs, often in the context of educational diversity. As the Court’s pertinent jurisprudence has evolved, its tolerance for affirmative action has fluctuated in ways that reflect the influence of its liberal or conservative voting blocs at particular points in time. And the Court’s current conservative majority has been noticeably hostile to affirmative-action efforts to advance the interests of racial minorities.

The affirmative-action debate has always been contentious. Proponents view affirmative action as necessary both to compensate for past inequalities and to promote the prospective diversity needed to facilitate the proper functioning of our increasingly multicultural society. Opponents view affirmative action as itself a form of racial discrimination that punishes Whites who are not themselves guilty of past discrimination in order to benefit minorities who were not themselves the victims of that discrimination, thereby undermining the society’s prospective commitment to the merit-based allocation of resources. In the past, I have tried to offer a detailed account of how the Supreme Court’s affirmative-action jurisprudence has evolved, and I have tried to address the major arguments and counterarguments that tend to arise in the affirmative-action debate. Here, I will briefly highlight the most salient aspects of the Court’s affirmative-action jurisprudence.

In its 1978 Regents of the University of California v. Bakke decision, a badly divided Supreme Court invalidated a race-conscious affirmative-action program that the University of California at Davis Medical School adopted to increase minority student enrollment. Justice Lewis Powell, speaking only for himself, wrote what ended up being the controlling opinion. Although he voted to invalidate the Davis program, he thought that some racial affirmative-action programs might be constitutional. He identified several factors that have come to be significant in assessing the constitutionality of affirmative action. He believed that strict scrutiny should be applied to the racial classifications inherent in affirmative action, meaning that plans could be constitutional only if they embodied narrowly tailored efforts to advance a compelling governmental interest. The two compelling interests he recognized were the retrospective provision of remedies for past discrimination, and the prospective promotion of future educational diversity. The Equal Protection Clause of the Fourteenth Amendment protected the individual rights of innocent Whites who might be burdened by affirmative action, so racial quotas were impermissible, as they deprived each applicant of the ability to compete for each available seat. Because the Equal Protection Clause conferred individual rather than group rights, affirmative action could not constitutionally be used as a remedy for general societal discrimination.

Justice William Brennan disagreed, arguing that intermediate scrutiny ought to be used for benign affirmative-action classifications, rather than the strict scrutiny that applies to invidious racial discrimination, so that a program should be upheld if it was substantially related to an important governmental interest. He stressed that Whites did not suffer a history of racial discrimination sufficient to make them a suspect class triggering strict scrutiny. He also believed that the goal of providing remedies for general societal discrimination was a constitutionally sufficient governmental interest, and that the need for racial quotas could be used as a factor in assessing the constitutionality of affirmative action. Justice Harry Blackmun’s opinion added that, in light of the nation’s long history of racial discrimination, race was a factor that now must be taken into account in order to achieve ultimate racial equality. Blackmun then stated famously that “[i]n order to get beyond racism, we must first take account of race. There is no other way.” The Bakke opinions largely established the terms of the ensuing cultural debate over the constitutionality of affirmative action.

Although the outcomes in early affirmative-action cases were dramatically inconsistent, the 1995 Adarand Constructors v. Peña decision concerning a federal minority construction set-aside held that the typically fatal strict scrutiny standard used for invidious discrimination would also apply to benign affirmative action. The Court’s more recent affirmative-action cases have involved programs designed to increase student racial diversity in educational contexts. On the same day in 2003, the Court decided two cases involving affirmative-action programs at the University of Michigan. Grutter v. Bollinger upheld the Michigan Law School plan under strict scrutiny, finding it to be narrowly tailored to the compelling interest in promoting student diversity. Citing Bakke, Justice Sandra Day O’Connor’s 5–4 majority opinion noted that the plan did not utilize racial quotas to promote racial balance—something that would be “patently unconstitutional.” Chief Justice William Rehnquist and Justice Anthony Kennedy dissented on the grounds that the plan was a veiled racial quota and was not narrowly tailored. In addition, Justices Antonin Scalia and Clarence Thomas asserted that diversity was not a compelling governmental interest, and Justice Thomas argued that affirmative action was merely about preserving the status of elite educational institutions. Then, in Gratz v. Bollinger, Chief Justice Rehnquist wrote a majority opinion invalidating the Michigan undergraduate affirmative-action program on the ground that it was not narrowly tailored. Because the two programs seem very similar, it became unclear what the narrow-tailoring requirement actually entailed.

After Chief Justice John Roberts and Justice Samuel Alito replaced Chief Justice Rehnquist and Justice O’Connor in 2005 and 2006, it appeared that there might be five votes on the Court to overrule Grutter and end most forms of affirmative action. Bolstering that view, Chief Justice Roberts wrote a majority opinion in the 2007 case of Parents Involved in Community Schools v. Seattle School District No. 1, invalidating race-conscious primary and secondary school student assignment programs in Seattle and Louisville that had been adopted to prevent resegregation of the schools caused by residential population shifts. Chief Justice Roberts held that the diversity interest recognized as compelling in Grutter applied only to higher education, and there was no lingering past de jure discrimination to remedy. In a plurality portion of the opinion, Chief Justice Roberts reasserted that the goal of racial balancing was patently unconstitutional, and he invoked Brown v. Board of Education for the proposition that the Constitution prohibited race from being considered in student assignment, even if the goal was to promote integration.

When the Court considered Fisher v. University of Texas at Austin—first in 2013 (Fisher I), and again after remand in 2016 (Fisher II)—opponents of affirmative action hoped that the Court would use the case as an opportunity to overrule Grutter. However, in Fisher II, Justice Kennedy—who had dissented in Grutter—upheld the Texas plan, finding it to be narrowly tailored. Justice Alito dissented, joined by Chief Justice Roberts and Justice Thomas. Although the Supreme Court did not use Fisher II as an opportunity to overrule Grutter, since the case was decided in 2016, Justices Neil Gorsuch and Brett Kavanaugh have replaced Justices Scalia and Kennedy. And this week, Amy Coney Barrett succeeded Justice Ruth Bader Ginsburg, who also voted with the majority in Fisher II. Accordingly, there may now be six votes on the Supreme Court to overrule Grutter, and effectively put an end to racial affirmative action.

If space permitted a fuller account of the Supreme Court’s affirmative-action evolution, it would show that the Court has vacillated with respect to a number of fundamental issues, including: the appropriate standard of review; the relative affirmative-action power of federal and nonfederal governments; the nature of the governmental interests that are sufficient to be deemed compelling; the showing of past discrimination that is necessary to trigger the government’s remedial interest; the educational level at which the governmental interest in student diversity becomes compelling; the degree to which race-neutral alternatives must be exhausted to achieve narrow tailoring; and the degree to which strict scrutiny is likely to be fatal.

In addition, the Court has made a number of striking assertions: the use of quotas in the pursuit of racial balance is patently unconstitutional; the Equal Protection Clause does not permit the culture to use race-conscious efforts to eliminate general societal discrimination; Brown v. Board of Education precludes the culture from using race in student assignments intended to prevent resegregation; and despite their dominant political power, members of the White majority still possess equal protection rights that shield them from the burdens of majoritarian affirmative action.

Moreover, the Court’s actions do not inspire confidence in the judicial process, because: the Court’s views on the constitutionality of affirmative action correlate very highly with the political and ideological preferences of the Justices; the outcomes in affirmative-action cases are largely determined by which Justices happen to be sitting on the Court when a particular case is decided; the meaning of the Constitution as it applies to affirmative action is often determined by the views of a single “swing” Justice; the current law of affirmative action is so unstable that it could be changed dramatically by the replacement of one Justice; and like its predecessors, the current Supreme Court does not seem to like racial minorities very much. All of this is a curious way to formulate racial policy in a culture that claims to be committed to the ideals of equality and the rule of law.

There seem to be at least three possible explanations for the Supreme Court’s hostility to affirmative action. First, the mere ideological preferences of the Court’s conservative majority might be the cause of the Court’s anti-affirmative-action views. If so, racial equality cannot be secured until the Court’s controlling ideology or membership is changed. Second, it might be that the Supreme Court is an institution tacitly committed to preserving White privilege, regardless of its membership or stated ideology. If so, racial equality cannot be obtained without changing the role that judicial review plays in our constitutional culture. Third, the Supreme Court may be accurately reflecting the racial preferences of the culture at large when it invalidates remedial affirmative action. If so, racial equality cannot be achieved without a fundamental change in the culture’s views on race itself. The Court’s personnel, ideology and institutional commitments seem unlikely to change on their own. But the culture’s current focus on disparate impact may be a harbinger of beneficial change.

II. Intentional White Supremacy

Although some have argued that the Supreme Court has done a better job than the representative branches in protecting the interests of racial minorities, I believe the Court’s resistance to racial affirmative action is part of a larger pattern of Supreme Court actions that have advanced the interests of Whites over the interests of racial minorities. Historically, the Court has taken such actions on multiple occasions. Lewis Steel famously described even the Warren Court as a group of “nine men in black who think White.” I have argued that a social function of the Supreme Court is actually to facilitate the sacrifice of racial minority interests in order to benefit the White majority. The Court accomplishes this by sanitizing racial discrimination in a way that makes it look neutral enough to satisfy the equality demands of the Constitution. In the context of affirmative action, the Court has limited the scope of constitutionally permissible programs to a narrowly defined concept of intentional discrimination, and has excluded affirmative action addressed to mere racially disparate impact. The ensuing sacrifice of racial minority interests for White majoritarian gain is, of course, a form of White supremacy. And it is a form of White supremacy in which the Supreme Court is deeply implicated.

In its early cases, the Supreme Court explicitly sacrificed minority interests for the benefit of the White majority. For example, in the 1842 case of Prigg v. Pennsylvania, the Court invoked the fugitive slave provisions of the Constitution and a federal statute to invalidate a Pennsylvania law that prohibited the forceable removal from the state of any person claimed to be an escaped slave without a prior hearing to establish ownership. The decision enabled continuation of the practice depicted in the 2013 historical movie 12 Years a Slave, whereby White slave dealers would kidnap free Blacks in the North and sell them into slavery in the South. In the infamous 1857 Dred Scott v. Sandford decision, the Court not only invalidated the federal 1820 Missouri Compromise Act limitations on the spread of slavery, but also held that Blacks could not be citizens within the meaning of the United States Constitution. The decision was one of the factors that lead to the Civil War, and its citizenship holding was overruled by the Fourteenth Amendment’s grant of natural-born citizenship—a grant that President Trump has said he would like to end.

After the War, The Civil Rights Cases invalidated the Civil Rights Act of 1875 provision that prohibited racial discrimination in public accommodations, finding a “state action” requirement in the Fourteenth Amendment that barred Congress from outlawing private acts of racial discrimination. In the 1896 case of Plessy v. Ferguson, the Court upheld the Jim Crow doctrine of separate-but-equal racial segregation. In its 1899 Cumming v. Board of Education decision, upholding a district’s provision of a public high school for Whites but no high school for Blacks, the Court revealed that separate did not actually have to be equal.

In the twentieth century, the 1944 Korematsu v. United States decision upheld a World War II exclusion order that led to the forced internment of Japanese-American citizens. In the 1954 Brown v. Board of Education decision, the Court invalidated the separate-but-equal doctrine that it had upheld in Plessy. However, in the 1955 Brown II decision focusing on remedy, the Court held that southern public schools only had to be desegregated “with all deliberate speed.” Little meaningful southern school desegregation occurred for the next ten years. Once the school desegregation movement began to move North and West, the 1973 decision in Keyes v. School District No. 1 held that the Constitution did not require the elimination of de facto segregation. In the 1974 Milliken v. Bradley, decision, the Court held that the de facto limitation prohibited interdistrict desegregation between inner-city and suburban districts, thereby precluding the possibility of any meaningful school desegregation outside the South. Today, most public schools remain badly segregated.

The Supreme Court preference for White over minority interests has tainted the law of affirmative action because most of the discrimination that affirmative action seeks to counteract simply does not “count” for constitutional purposes. In its 1976 Washington v. Davis decision, the Court held that only intentional discrimination—and not mere racially disparate impact—fell within the constitutional prohibition on racial discrimination. Then in its 1979 Personnel Administrator v. Feeney decision, the Court adopted a narrow definition of intentional discrimination that encompassed only a direct desire to engage in activity “because of” racial discrimination, not the mere desire to take an action “in spite of” its discriminatory effects. Moreover, as Dan Farber points out in his Constitutional Law casebook (pp. 349–53), the Court’s interpretation of intentional discrimination allows it to uphold actions whose incidental discriminatory effects burden racial minorities in ways that are indirect, but to invalidate affirmative action when equally indirect incidental burdens are imposed on Whites. Some Justices, including Marshall, Brennan, Blackmun, and Sotomayor have been sympathetic to the constitutional recognition of disparate impact. But the Court itself has not been.

As a result of all this, when the Supreme Court determines whether an affirmative-action program advances a compelling governmental interest in remedying prior discrimination, or in compensating for a lack of racial diversity, the de facto conditions that caused the need for affirmative action to begin with are constitutionally unavailable to justify the program. Therefore, the racially disparate maldistribution of societal benefits and burdens has become constitutionally irrelevant. Only intentional discrimination matters. And because most contemporary discrimination results from implicit bias or structural forces, most contemporary discrimination simply does not exist under the Court’s White supremacist conception of the Constitution.

III. Popular Disparate Impact

Disparate impact matters. A lot. Rectifying it could promote actual racial equality. Indeed, that is why the Supreme Court rejected a disparate impact standard under the Equal Protection Clause, and not only diluted, but threatened to invalidate, statutes that adopted such a standard. This is a threat that the Roberts Court made quite credible by invalidating the statistically-based Voting Rights Act of 1965. So, a worthy goal is to make disparate impact as relevant under the Constitution as it is in real life.

Although the Supreme Court often seeks to articulate the operative values of American culture, when it does so, it is exercising only a delegated power. The culture itself retains the power to ascribe meaning to its own fundamental values. Even a Supreme Court that does not believe in authentic equality for racial minorities will be unable to stand up against a culture that does. The widespread Black Lives Matter and other protest movements that have persisted since the police killing of George Floyd may reflect a cultural commitment to genuine racial equality.

If the culture’s passionate protests for racial equality are to evolve into meaningful social change, rather than degenerate into mere transient rhetoric, the culture will have to retrieve its social policymaking power from the Supreme Court. Although the Supreme Court claimed to have dispositive say over constitutional meaning in its 1958 Cooper v. Aaron decision, there are ways in which popular culture can override the Court’s self-asserted claim of finality. I have suggested a range of techniques that the political culture can employ to reclaim control over the meaning of its Constitution. They range from mild nonacquiescence, to more vigorous jurisdiction stripping, Court packing, and even threatened or actual constitutional amendments. The death of Justice Ruth Bader Ginsburg has revived interest in techniques that the political branches can use to limit the scope of Supreme Court power. Mark Tushnet has described the use of such tactics as playing “constitutional hardball”—a game in which political actors utilize constitutionally permissible procedures in novel ways that transcend established norms, in the hope of securing political change that is both partisan and durable. Constitutional hardball may occasionally even be sufficient to create a New Constitutional Order. Given the current Court’s hostility to racial affirmative action, supplanting judicial supremacy with popular constitutionalism may be essential in the culture’s populist efforts at Taking Back the Constitution.

By affirmative action, I do not mean the process of taking benefits such as university seats away from Whites who are entitled to them and redistributing them to minorities who are not. Although that characterization is widely advanced by opponents of affirmative action, it is one that simply smothers racial equality beneath a tacit baseline assumption that the current allocation of resources is itself fair and equitable—despite the long history of overt, implicit, and structural racism on which it rests. Rather, I view affirmative action as simply the process of eradicating ongoing discrimination. Affirmative action and antidiscrimination measures are, therefore, identical. This also seems to be the thinking behind the current Proposition 16 effort to repeal California’s infamous state-law ban on affirmative action.

Affirmative action will be most effective when it directly counteracts the statistical disparities that have always tainted the nation’s racial distribution of resources. But the effort to correct the continuing racial imbalance caused by societal discrimination is precisely what the Supreme Court has deemed to be “patently unconstitutional.” Just as Chief Justice Roberts oddly viewed Brown as prohibiting the integration of public schools, the Supreme Court oddly views the Constitution as prohibiting racial equality. It is that interpretation of the Constitution that I hope the culture has rejected during its “American Spring of Reckoning.”

To me, the most salient characteristic of the post–George Floyd protest movements, is the degree to which a majority of Whites have come to recognize disparate impact as the essence of racial discrimination. Initially focused on racial disparities in the myriad abusive or fatal police encounters with unarmed Blacks, supporters of the protest movements have now focused on the underlying forms of structural discrimination that have left Black and Brown people, Asian Americans, indigenous Indians, and other racial minorities systematically disadvantaged in their access to societal resources. Racially disparate impact encompasses access to the health resources implicated in the current COVID-19 pandemic, which has imposed disproportionate burdens on racial minorities high enough to prompt some jurisdictions to declare racism to be a public health crisis. In addition, statistical disparities in access to other resources is also both striking and vast. Indeed, racially disparate impact infects virtually all important aspects of the culture—including wealth, income, education, employment, health, housing, voting, and treatment by the criminal justice system.

I am not sure precisely how popular constitutionalism works when it manages successfully to change the Supreme Court’s stated interpretation of the Constitution. But I am confident that it does work. Many examples demonstrate that popular culture can mold the meaning of the Constitution in ways that override settled Supreme Court doctrine. The potency of popular constitutionalism is evidenced by the FDR New Deal Court packing plan; the wartime hysteria to which the Court succumbed, leading to the Japanese-American internment associated with Korematsu, despite the Court’s holding that suspect racial classifications were subject to strict scrutiny; the Court’s eventual post-Brown desegregation of southern schools that embarrassed the northern establishment and its foreign policy agenda; the Court’s later failure to desegregate northern schools in the face of opposition by White suburban parents; the Court’s fluctuating protection of abortion rights that seems to correlate with the views of the ideological groups who happen to be in power; the Court’s recent protection of LGBTQ+ rights in response to a shift in cultural attitudes about nontraditional sexual identities; and the support that the Court has recently shown for faith-based immunities from antidiscrimination laws in response to pressure from influential religious interest groups.

The evolution of the Court’s affirmative-action jurisprudence is too inconsistent, unstable, historically suspect, and doctrinally incoherent to warrant continued cultural deference. There is a vacuum in the constitutional meaning of the Equal Protection Clause that can be filled by a popular commitment to eradicating racially disparate impact. But the window of opportunity for the culture to effect meaningful constitutional change may be a narrow one. Once the momentum behind the culture’s current focus on racial injustice begins to dissipate, there is a danger that the culture will, once again, fall back on the myth that racial progress can be secured through rhetorical pronouncements rather than material gains. That is, of course, what happened in prior constitutional moments that promised the hope of equality, including adoption of the Declaration of Independence, the Constitution itself, and the Reconstruction Amendments, as well as the post-Brown civil rights movement.

Even after the graphic killing of George Floyd, there are still segments of the American population that violently contest the claim that Black Lives Matter. Ibram X. Kendi has emphasized that President Donald Trump now serves as the symbol for this disgruntled White opposition to emerging demands for multicultural racial equality. The conservative voting bloc of the Supreme Court has been enhanced by Trump’s addition of conservative Justices Gorsuch and Kavanaugh, which made conservative Chief Justice Roberts the Court’s current swing vote. That Court has often upheld Trump’s parochial vision of American culture in ways that seem sympathetic to Trump’s efforts to appeal to his xenophobic base and secure reelection as president in the 2020 election. The Court has not only upheld Trump’s Muslim travel ban, and some of his other harsh anti-immigrant policies, but it has helped shield him from political accountability for his policies prior to the election. The Court has refused to resolve before the election Trump’s politically controversial effort to eliminate Obamacare; delayed disclosure of Trump’s tax returns to Congress; allowed potential access to Trump’s business records only by a grand jury that is required by law to keep the records secret; upheld delayed implementation of a Florida voter initiative that was adopted to restore voting rights to ex-felons; refused a pandemic extension of the deadline for ballots; and reversed lower court decisions that have expanded voter access to the mail-in ballots that Trump fears may cost him the 2020 presidential election. In selecting an arbiter of constitutional meaning, given the choice between a Supreme Court so sympathetic to the icon of racial intolerance, and a popular culture now woke to the importance of disparate impact, why would anyone interested in racial equality ever choose the Court?

Conclusion

Affirmative action has been ineffective at addressing the persistent problem of racial discrimination in the United States because the Supreme Court will not permit affirmative-action efforts to remedy the problem of racially disparate impact. If meaningful movement toward racial equality is ever to occur, the preservation of disparate impact must be recognized as an unconstitutional form of racial discrimination. At this moment in time, popular culture seems willing to address the disparate impact of structural practices that have always disadvantaged racial minorities. But the Supreme Court’s treatment of disparate impact as constitutionally irrelevant will impede that culture’s ability to adopt remedial affirmative-action measures that redistribute resources to minorities. So, consistent with the theory of popular constitutionalism, the culture should itself change the meaning of the Equal Protection Clause in a way that demands distributional equality. The Supreme Court will resist, because one of its social functions is to preserve White privilege. But if the culture’s commitment to racial equality is genuine, the culture will ultimately win. Supreme Court Justices work for us; we do not work for them.

Essay

Disparate Impact Popular Constitutionalism Racial Equality

Affirmative Action at a Crossroads

Online

“All (Poor) Lives Matter”: How Class-Not-Race Logic Reinscribes Race and Class Privilege

andreazhou2026 — Sat, 31 Oct 2020 00:00:43 +0000

“All (Poor) Lives Matter”: How Class-Not-Race Logic Reinscribes Race and Class Privilege

Jonathan P. Feingold

Jonathan P. Feingold is an Associate Professor at Boston University School of Law; B.A., Vassar College; J.D., UCLA School of Law.

The author thanks Jerry Kang for feedback on a prior draft and thanks the editors of The University of Chicago Law Review for their superb edits and feedback, and Sean Hickey for research assistance that supported this Essay.

andreazhou2026 Fri, 10/30/2020 - 19:00

October 30, 2020

In An Intersectional Critique of Tiers of Scrutiny, Professors Devon Carbado and Kimberlé Crenshaw infuse affirmative action with an overdue dose of intersectionality theory. Their intervention, which highlights the disfavored remedial status of Black women, exposes equality law as an unmarked intersectional project that “privileges the intersectional identities of white antidiscrimination claimants.”

This latent racial privilege rests on two doctrinal pillars. First, single-axis tiers of scrutiny, which force claimants and courts to view discrimination in either/or terms (that is, race-based or gender-based or class-based), contravene intersectionality’s core insight that “people live their lives co-constitutively as ‘both/and,’ rather than fragmentarily as ‘either/or.’” Equal-protection doctrine, we might say, is “intersectionality-blind.”

Second, intersectional blindness exists alongside colorblindness—a racial ideology hostile to race-conscious remedies. This pairing yields an equality regime that favors intersectional subjects whose racial identity is decoupled from their disadvantage (e.g., poor whites) and those who reap racial advantage through the daily churn of ostensibly neutral “market forces” (e.g., class-privileged whites).

In this Essay, I draw upon An Intersectional Critique but shift the focus from race and gender to race and class. Specifically, I refocus the intersectional lens on an ongoing site of contestation: the argument that universities should consider an applicant’s socioeconomic class but not her race—what I refer to herein as “class-not-race” reforms. I make the class-race turn for three reasons.

First, we are witness to unrelenting wealth disparities and their searing impact. The growing fissure between haves and have-nots exacerbates the increasingly steep cost of university membership (itself a key to social mobility). This tension calls on us to reckon with the causes and consequences of class stratification. But wealth gaps have never been race neutral. If anything, the ongoing pandemic and the economic crisis that followed throw into sharp relief the thread that binds race and class (and life chances) in America. This moment demands a serious intersectional class and race conversation.1

Second, we are heading towards a world of class-not-race university admissions. Class-not-race policies already enjoy preferential status under existing law.2 Given the Supreme Court’s rightward turn since Fisher v. University of Texas at Austin (2016), it is easy to imagine a future in which this preference becomes a mandate.

Third, and my focus herein, class-not-race logic ultimately serves neither poor whites nor people of color. To be sure, economically disadvantaged students enjoy certain benefits under admissions regimes that attend to class (relative to ones that do not). It is also true that poor whites, whose racial identity neither compounds nor deepens their class disadvantage, are often favored intersectional subjects under class-not-race frameworks. But in meaningful respects, the modest racial privilege enjoyed by poor whites only masks how class-not-race constitutionalism fortifies structural and institutional arrangements that keep those on the top at the top, and those on the bottom—poor whites included—at the bottom. In so doing, equality law commits the ultimate intersectionality sin: reinforcing structural hierarchies.

I. Class-Not-Race: The Supreme Court’s Preferred Approach

Class-not-race reform enjoys preferential status within constitutional doctrine and, often, public discourse. As a matter of doctrine, this preference operates across and within tiers of scrutiny.3

To begin, racial classifications are subject to the most demanding tier of judicial review: strict scrutiny. Class-conscious policies, in contrast, are subject to the least demanding tier of judicial review: rational basis review. In other words, the law is most hostile to race-conscious policies (even those also attentive to class) and most deferential to class-conscious policies (unless they also employ racial classifications).

A second-layer preference exists within strict scrutiny itself. When subject to strict scrutiny, a defendant must establish that its race-conscious policy is “narrowly tailored”—a demand that requires, among other elements, the absence of “race-neutral alternatives.” In the admissions context, litigants and Justices often argue that class-not-race policies offer such alternatives.

As a matter of doctrine and policy, “[t]his formulation conceives of considerations of class as possible, and even preferable, substitutes for race-conscious affirmative action policies.” As a practical matter, the doctrine incentivizes universities to either avoid or dilute any race-conscious components of their admissions regimes.4 Moreover, the suspect status of all racial classifications—even those designed to desegregate our schools or counter institutional legacies of racial exclusion—communicates that antiracism is itself racist.5 In effect, and as I describe further below, this constitutionalized class-not-race preference produces favored and disfavored intersectional racial subjects.

II. Original Sin: Intersectional Blindness

We might consider intersectional blindness equality law’s original intersectionality sin. Just as colorblindness trivializes (if not denies) the ongoing relevance of race and racism, intersectional blindness betrays the interactive nature of our identities (e.g., race and class) and structures of power (e.g., racism and capitalism).6

In the admissions context, intersectional blindness facilitates the presumption that one can cleanly disentangle an applicant’s race and class. Put slightly differently, class-not-race “arguments obscure the fact that race and class are coconstitutive yet distinct.” As a result, equality law overlooks the many ways in which class is raced and race is classed.

A. When Class Is Raced

To say that class is raced is to suggest, at a minimum, that race mediates the class experience of individuals and groups. This dynamic manifests in multiple forms. Here, I address two: class mobility and class meaning.7

1. Class mobility.

For purposes of this Essay, I employ the term “class mobility” to capture a person’s (or group’s) abilities (1) to accumulate wealth, and thereby ascend class hierarchies, and (2) to maintain a higher class status once attained.8

The relevant backdrop is well known. For much of this country’s history, legalized racism was weaponized to extract, hoard, and monopolize resources that catalyzed generations of white economic, political, and social capital accumulation. Redlining, for example, exemplifies how public policy facilitated the inequitable distribution of key resources; white communities got access, communities of color did not. But as Professor K-Sue Park has poignantly observed, the story of redlining transcends uneven resource distribution. It is also a story of racialized wealth creation. As Park describes, redlining “engineer[ed] the mass-production of a new form of property whose value derived precisely from the segregated landscape it produced—the suburban single-family home.”

This legacy of racialized wealth accumulation transcends individuals and communities. It also implicates America’s most prestigious educational institutions—universities such as Harvard, Yale, and Princeton—as profiteers that leveraged slavery (and racism more broadly) to finance, and literally construct, their educational empires.9

Inseparable from this history, whiteness remains a valued asset in America. Proximity to it (and inclusion within it) grants access to opportunities, resources, and networks that fuel the acquisition and retention of wealth.10 It should be no surprise, therefore, that immigrant and ethnic communities have long asserted their “whiteness” to improve their social, legal, and economic standing.11

Beyond wealth accumulation, whiteness also buffers against wealth loss. This dynamic has manifest in the racially uneven fallout triggered by the current pandemic. The 2009 financial crisis bred similar results. Importantly, this racial buffering transcends moments of acute societal economic decline. As one salient example, race predicts whether children—even those born to wealthy parents—maintain class status or suffer economic decline during their lifetimes.12

2. Class meaning.

By “class meaning,” I refer to dominant narratives concerning class in America. Often, these narratives describe class status (who is poor) and explain economic inequality (why the poor are poor). On the surface, common class narratives are race-less. When we discuss the vulnerabilities of poverty (which burden the poor) or the privileges of wealth (which benefit the rich), we conjure a universalized class experience that transcends and, in ways underdescribes, racial identity. Yet if we push at all, race—and the conceptual work it performs—rises to the surface.

Consider how race informs conceptions of the “deserving” or “undeserving” poor.13 This distinction is embodied by two phrases etched into the American vernacular: “working class” and “welfare queen.” Both terms are facially race neutral. Yet both are racially encoded and invoke divergent stories about poverty’s causes and prescriptions.

“Welfare queen” conjures powerful associations between poverty, Blackness (Black womanhood, in particular), and social deviance.14 Professor Priscilla Ocen explains: “Black women have been viewed as an omnipresent danger through designation as sexually promiscuous, incompetent mothers and welfare queens who threaten society . . . their reproductive capacities are deemed to be the source of crime, dependency, and disorder.” This racialized class story has roots in the now-infamous Moynihan Report, which “suggested that Black women as mothers were responsible for a ‘tangle of pathology’ that engulfed the African-American community, spawning unemployment, criminality, out of wedlock births, poverty, and the like.”

“Working class,” a term tethered to whiteness, offers a distinct picture of the poor and their plight. The term evokes industrious laborers who suffer class disadvantage in spite of their individual effort. Thus, whereas “welfare queen” (read: Black woman) depicts culturally deficient subjects undeserving of public assistance, the “working class” (read: poor whites) portrays an honorable community that deserves a leg up.

These legitimating myths do more than stigmatize Blackness and Black communities. They also buttress a white middle-class identity moored to ideals of independence, merit, and self-sacrifice. In this sense, our societal preoccupation with “welfare queens” does more than denigrate Black poverty. It also insulates the white middle-class from having to reckon with the indelible link between white wealth and anti-Black racism (and genocide, and internment, and conquest, the list goes on).

B. When Race Is Classed

Racial stereotypes are embroidered into America’s cultural fabric. As with class narratives, racial stereotypes describe and explain racial hierarchy. Stereotypes also inform how we perceive and interact with racialized individuals and groups.15 Accordingly, when society associates race with socioeconomic status, the relevant racial stereotypes—in effect—classes race.

Americans associate Blackness with poverty.16 Beyond informing how we treat individual people, this link also affects how we evaluate entire neighborhoods.

A 2008 study from Professor Maria Krysan and colleagues is instructive.17 Participants viewed one of thirteen videos, each of which depicted a neighborhood across five socioeconomic tiers and three racial compositions.18 Notably, participants downgraded otherwise identical neighborhoods as the proportion of Black residents increased—racially disparate treatment that affected perceptions of property values and school quality. The researchers explain: “[N]eighborhoods with the exact same observable characteristics [were] presumed by Whites to be lower-quality neighborhoods simply because of the race of the residents.”19

The foregoing discussion, albeit incomplete, explores the dynamic and layered relationship that binds race and class. Even this partial review reveals how intersectional blindness erases key dimensions of both. These erasures, when fused to colorblindness, fuel a constitutional scheme that privileges the experiences and remedial needs of white intersectional subjects.

III. Colorblind Intersectionality: Unmarked Racial Privilege

“Colorblind intersectionality,” a term coined by Carbado, refers to “instances in which whiteness helps to produce and is part of a cognizable social category but is invisible or unarticulated as an intersectional subject position.” This description captures class-not-race reforms, which formally attend to class but not race. Given this discursive and prescriptive posture, such policies are prone to privilege constitutional subjects whose economic subordination is untethered to their racial identity—that is, poor whites.20 As I discuss below, this relative privilege entails material and symbolic dimensions.

A. Material Consequences: Remedial Gaps

The material impact of class-not-race reform depends, in large part, on existing baselines. At least two baselines deserve note.

First, we should always ask: “As compared to what?” In the admissions context, this translates to: “What is the alternative to class-not-race?” Critically, the alternative to class-not-race is not race-not-class. Rather, the alternative is almost always class-and-race: admissions regimes that permit the formal consideration of a student’s race and class statuses.

Second, we should ask whether race-blind admissions are race-neutral projects. In other words, absent racial affirmative action, do white applicants enjoy racial advantages unavailable to similarly situated students of color? As I and others have argued, the answer to this latter articulation is yes.21 Across income brackets, whiteness confers racial advantages before and during the admissions process.22

Against this backdrop, the racial preferences entailed by class-not-race reform come into focus. To begin, class-not-race frameworks baseline to the experience and remedial needs of poor whites—whose economic subordination is decoupled from their racial status. Whiteness does not immunize poor whites from the indignities of poverty. But as Cheryl Harris has observed, “whiteness mitigates risk through racial/spatial structures that sort probabilities and distribute access and opportunity.”

For poor people of color, whose disadvantaged subject position transcends class status, class-not-race reforms comprise underinclusive remedial projects. This is not to suggest that class consciousness is necessarily inattentive to structural barriers confronted by the poor of all races. But as the experience of institutions such as the University of California reveals, class-not-race policies—in part due to their attenuated nexus to racial subordination—are ill-equipped to counter white racial advantages embedded within standard admissions processes.23 The resulting remedial gaps, in turn, leave behind those “on the bottom.” For class-not-race proponents who criticize racial affirmative action for purportedly failing to uplift society’s “truly disadvantaged,” these gaps should be cause for concern.24

Class-not-race reforms also privilege poor whites relative to middle- and upper-class people of color—who remain subject to racial headwinds notwithstanding their class privilege.25 To be sure, this gap is a feature—not a bug—of class-not-race reforms. Moreover, it is often justified by the fallacy that middle-class status insulates students of color from race-based disadvantage.26

Notably, this proposition is betrayed by class-not-race proponents themselves. A salient example comes from an unexpected source: Students for Fair Admissions (SFFA), the organizational plaintiff challenging Harvard University’s admissions practices. SFFA alleges that Harvard discriminates against Asian Americans to the benefit of white applicants—a claim tied to race, not class. SFFA identifies implicit biases as a potential source of the alleged disparate treatment. Assuming SFFA is correct, class-not-race reform would do little to remedy this harm—nor would it address other advantages white applicants enjoy vis-à-vis Asian Americans within, and before, Harvard’s admissions process. To the contrary, and as I have argued elsewhere, a more responsive remedy would involve a targeted “race-conscious policy capable of redressing the specific harm of negative action” that disadvantages Asians relative to whites.27 Simply put, SFFA’s turn to implicit bias reveals the inability of class-not-race policies to counter white racial advantages that transcend class privilege.

B. Symbolic Consequences: All Poor Lives Matter

I do not mean to overstate the material benefits that poor whites enjoy under class-not-race reforms.28 Given the demographic dynamics of university applications and a baseline of class-and-race admissions, the impact on a poor white student’s likelihood of admission is likely marginal at best.29

Even so, a constitutionalized class-not-race preference confers distinct and meaningful psychological benefits to poor whites.30 When the Supreme Court speaks, its words convey powerful symbolic and “cultural meaning.”"31 By embracing class-conscious policies and frowning upon race-conscious policies, our highest judicial body projects a worldview that either denies racism’s enduring presence or deems that reality constitutionally irrelevant or insufficient to justify even modest race-conscious remedies.32

In a sense, the cultural meaning that animates class-not-race tracks that embodied by the controversial phrase: “All Lives Matter”—or, tweaked for present purposes, “All Poor Lives Matter.” In the abstract, “All Lives Matter” constitutes a thin and innocuous platitude. But this phrase does not exist in the abstract. It is a direct rebuke to Black Lives Matter—a resounding call to name the inherent dignity of Black lives and condemn anti-Black violence and anti-Black racism more generally. It is from this contestatory posture and societal backdrop that All Lives Matter is cognizable. An otherwise empty slogan emerges as a racial project that recenters whiteness by decentering Blackness and denying (or shrugging off) anti-Blackness. Moreover, in ways that parallel equal-protection doctrine’s antipathy for racial classifications, replacing the particularized Black with the universal All carries the accusation that antiracism—that is, naming race and confronting racism—is the true source of racism.

It requires only a slight lift to map the cultural meaning of All Lives Matter onto class-not-race—a constitutional framework that proclaims “All Poor Lives Matter.” Class-not-race constitutionalism did not arise in a contextual vacuum. To the contrary, it constitutes a direct response to modest gains for racial equality that followed the fall of Jim Crow—gains that included a range of race-conscious remedies.33 And paralleling the turn from Black Lives Matter to All Lives Matter, the Supreme Court’s turn to All Poor Lives Matter symbolically centers whiteness by relegating concerns about anti-Blackness to the margins of equality law. In effect, the Supreme Court contributes to, and reinvests in, the psychological “wages of whiteness.”34

IV. Hidden Victors: Wealthy Whites and Elite Institutions

Up to this point, I have argued that class-not-race constitutionalism privileges poor whites. This is only half true—true as to relative advantages vis-à-vis people of color. The other half, to which I have gestured, exists in the space between poor whites and those at the top: wealthy whites and elite institutions—the ultimate beneficiaries of colorblind intersectionality.

A. Wealthy Whites

To begin, class-not-race appeals locate middle-class Blacks (and racial classifications) as the admissions barrier for poor whites. In other words, the class-not-race frame portrays a zero-sum game that pits poor whites (who deserve admission) against “privileged” Blacks (who gain admission only through “racial preferences”). This framing distorts the admissions competition in two key regards. First, it discursively extracts middle- and upper-class whites—who remain overrepresented at many elite institutions—from the admissions competition.35 Second, it reinforces the contestable proposition that admissions regimes are racially neutral projects until universities formally consider applicant race. Taken together, these distortions reinscribe class-privileged whites “as natural features of the [university] landscape—presumed members of a university community admitted on their individual ‘merit.’”

Two noteworthy consequences result. First, these distortions insulate from meaningful critique the shallow yet routinize measures of merit that systematically exclude talented and otherwise qualified students of color (and poor whites). Class-privileged whites, in turn, receive a material benefit: an uneven playing field that rewards inherited race and class privilege. Second, race consciousness is maligned as a deviation from race-neutrality, not a corrective for it. Class-privileged whites, in turn, receive a psychological benefit: they can pass through a racially uneven admissions process without having to confront the racial preferences they enjoy along the way.36

B. Elite Institutions

Class-not-race constitutionalism also benefits elite institutions to the detriment of poor whites and people of color. To begin, universities benefit from frames that shield from serious and sustained scrutiny institutional practices that reward and reproduce accumulated race and class privilege. This includes legacy preferences, an unpopular and antimeritocratic practice that disproportionately benefits wealthy whites (via admission) and institutions (via donor relations). Legacy preferences call for cross-racial resistance; class-not-race logic gets in the way.

But equality law does more than diffuse potentially potent allyship. It also safeguards elite universities from criticism from the Left. The Harvard litigation is demonstrative. As noted above, SFFA claims that Harvard discriminates against Asian Americans, perhaps because of implicit biases. In the abstract, many progressives would reflexively support—or at least demand further inquiry of—such claims (which are plausible given pervasive anti-Asian stereotypes). But SFFA’s naked goal is to eliminate racial affirmative action at Harvard and beyond—not to counter anti-Asian biases that pervade society and elite institutions. For this reason, and given affirmative action’s legal precarity, the Left has closed ranks around Harvard. This has included vigorous denials of anti-Asian bias, even though that claim—even if proven—would not implicate Harvard’s racial affirmative-action program. As a result, and cloaked under the associational halo of civil-rights allies, Harvard avoids the scrutiny that ought to follow a plausible claim of “negative action.”

Finally, class-not-race constitutionalism enables elite institutions to portray themselves as racially progressive without taking meaningful steps to advance racial justice. The Harvard litigation is again instructive. Juxtaposed against SFFA’s openly regressive agenda, Harvard can brand itself as a righteous defender of affirmative action and racial equality more broadly. In a political moment marked by increasing calls for antiracist reform and institutional accountability, brand matters—even for elites like Harvard. And yet, this portrayal masks the limited intervention performed by race-consciousness at Harvard and distracts from Harvard’s reluctance to part with institutional practices—such as legacy admits and an overreliance on standardized tests—that confer racial (and class) preferences on wealthy whites.

This, in turn, reveals class-not-race constitutionalism’s ultimate intersectionality sin: the invisible reinscription of existing hierarchies.

1Cf. Devon W. Carbado, Critical What What?, 43 Conn. L. Rev. 1593, 1635 (2011) (“While the CRT literature on intersectionality and gender is far from complete, it is much more robust than the CRT literature on intersectionality and class.”). A focus on class and race need not displace other axes of identity. To the contrary, intersectionality theory encourages a dynamic conversation attentive to how axes of identity and structures of power interact.
2See Part I.
3Within this Essay, I focus on the Supreme Court’s Fourteenth Amendment equal-protection jurisprudence. The Fourteenth Amendment does not apply to private universities, such as Harvard, which are governed by Title VI. These two legal regimes are not identical. See Kimberly West-Faulcon, Obscuring Asian Penalty with Illusions of Black Bonus, 64 UCLA L. Rev. Discourse 590 (2017) (discussing disparate-impact standards under Title VI regulations). Nonetheless, parties and courts often transport the constitutional framework to Title VI challenges. See, e.g., Students for Fair Admissions, Inc. v. Harvard, 397 F. Supp. 3d 126, 189, 195–96 (D. Mass. 2019).
4See Fisher v. University of Texas at Austin, 136 S. Ct. 2198, 2207 (2016) (describing the University of Texas’s consideration of applicant race a “factor of a factor of a factor”).
5Or in the words of Chief Justice Roberts: “The way to stop discriminating on the basis of race is to stop discriminating on the basis of race.” Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 551 U.S. 701, 748 (2007).
6See, e.g., Dorothy E. Roberts, Foreword: Abolition Constitutionalism, 133 Harv. L. Rev. 1, 79 (2019) (“Racial categories were invented to construct and maintain a white supremacist regime built on racial slavery and capitalism, and those categories continue to help govern systems in which racism has become embedded.”).
7These examples are not exhaustive. For a more comprehensive review, see, e.g., Harris, Fisher’s Foibles; john a. powell, The Race and Class Nexus: An Intersectional Perspective, 25 Law & Ineq. 355 (2007); Lisa R. Pruitt, The False Choice Between Race and Class and Other Affirmative Action Myths, 63 Buff. L. Rev. 981, 982 (2015).
8This definition is underinclusive, but sufficient for purposes of this Essay.
9See Craig Steven Wilder, Ebony and Ivy (2013).
10See Cheryl Harris, Whiteness as Property, 106 Harv. L. Rev. 1707 (1993); Laura Gomez, Inventing Latinos 125 (2020); Neil Foley, The White Scourge: Mexicans, Blacks, and Poor Whites in Texas Cotton Culture (1999) (“[Mexicans were] in the ethnoracial middle ground between Anglo Americans and African Americans, not white enough to claim equality with Anglos and yet, in many cases, white enough to escape the worst features of the Jim Crow South.”).
11See Ian Haney Lopez, White by Law: The Legal Construction of Race (2006); Gomez, Inventing Latinos 127 & n.104.
12See Raj Chetty et al., Race and Economic Opportunity in the United States: An Intergenerational Perspective (2018) (link) (“[A] black child born to parents in the top quintile is roughly as likely to fall to the bottom family income quintile as he or she is to remain in the top quintile; in contrast, white children are nearly five times as likely to remain in the top quintile as they are to fall to the bottom quintile.”).
13See Khiara M. Bridges, The Deserving Poor, the Undeserving Poor, and Class-Based Affirmative Action, 66 Emory L.J. 1049, 1092 (2017) (“[T]he line between the deserving and undeserving poor has shifted to maintain black people on the undeserving side of the binary.”).
14Contrary to public perceptions, white Americans remain the largest beneficiaries of government assistance.
15See Galen Bodenhausen & Kurt Hugenberg, Attention, Perception and Social Cognition, in Social Cognition: The Basis of Human Interaction (2009).
16See Maria Krysan et al., In the Eye of the Beholder: Racial Beliefs and Residential Segregation, 5 Du Bois. Rev. Soc. Sci. Res. Race 1 (2008).
17See Krysan, In the Eye of the Beholder.
18See Krysan, In the Eye of the Beholder (racial composition was either (a) all white, (b) all black, or (c) racially mixed).
19Krysan, In the Eye of the Beholder.
20The relative racial privilege enjoyed by poor whites tracks historical expressions of racism in this country. See Carbado, Critical What What?, at 1614 (“[H]istorically, racism has been bi-directional: It gives to whites (e.g., citizenship) what it takes away from or denies to people of color. Framing discrimination in this way helps to reveal an uncomfortable truth about race and power: The disempowerment of people of color is achieved through the empowerment—material or psychological—of whites.”).
21See, e.g., Devon W. Carbado, Footnote 43: Recovering Justice Powell’s Anti-Preference Framing of Affirmative Action, 53 U.C. Davis L. Rev. 1117, 1140 (2019); Sam Erman & Gregory M. Walton, Stereotype Threat and Antidiscrimination Law: Affirmative Steps to Promote Meritocracy and Racial Equality in Education, 88 S. Cal. L. Rev. 307, 330–39 (2015); Jerry Kang & Mahzarin R. Banaji, Fair Measures: A Behavioral Realist Revision of “Affirmative Action”, 94 Cal. L. Rev. 1063, 1064 (2006); Luke Charles Harris & Uma Narayan, Affirmative Action and the Myth of Preferential Treatment: A Transformative Critique of the Terms of the Affirmative Action Debate, 11 Harv. Blackletter L.J. 1 (1994).
22See the previous note.
23See William C. Kidder, How Workable Are Class-Based and Race-Neutral Alternatives at Leading American Universities?, 64 UCLA L. Rev. Discourse 100, 110–11 (2016) (“The crux of the problem is that, as noted in many of the earlier studies, although there is a meaningful positive correlation between race/ethnicity and socioeconomic status, the correlation is not so strong that class can effectively substitute for race.”).
24See Fisher, 136 S. Ct. at 2232 (Alito, J., dissenting) (suggesting that the university’s desire to admit more “privileged minorities . . . turned the concept of affirmative action on its head”).
25Devon W. Carbado et al., Privileged or Mismatched: The Lose-Lose Position of African Americans in the Affirmative Action Debate, 64 UCLA L. Rev. Discourse 174, 199 (2016) (“[B]lack students across class, and not just class-disadvantaged black students, experience multiple disadvantages that likely affect their academic performance and the overall competitiveness of their admissions files.”).
26Though as Professors Luke Harris and Uma Narayan observe, “[n]o one argues that middle class status shields white women from the inequities that often result from institutional sexism.” Harris & Narayan, Affirmative Action and the Myth of Preferential Treatment, at 9.
27Moreover, a class-not-race regime at Harvard would harm the many Asian-American applicants who benefit from Harvard’s current class-and-race policy.
28See Harris, Fisher’s Foibles, at 681 (“[W]hiteness is no insurance against the effects of structural inequality: Whites who are poor are solicited and summoned to the stage to argue against race-conscious remediation, but their specific concerns are rarely if ever addressed.”).
29See generally Sherick Hughes et al., Causation Fallacy 2.0: Revisiting the Myth and Math of Affirmative Action, 30 Educ. Pol’y 63 (2016) (concluding that were all African Americans and Latinos removed from Harvard’s 2013 admissions pool, the likelihood of white applicants being admitted would increase by 1 percent).
30Whiteness’ psychological benefits extend to all whites but are often most meaningful for the poor. See Harris, Fisher’s Foibles, at n.104.
"31Charles R. Lawrence III, The Id, the Ego, and Equal Protection: Reckoning with Unconscious Racism, 39 Stan. L. Rev. 317, 356 (1987) (proposing a “cultural meaning” test that would “evaluate governmental conduct to see if it conveys a symbolic message to which the culture attaches racial significance”).
32Justice Anthony Kennedy is associated with the latter position. See Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 551 U.S. 701, 789 (2007). Chief Justice Roberts, among others, appears to embrace the former. See id. at 748.
33See Kimberlé Crenshaw, Race, Reform, and Retrenchment: Transformation and Legitimation in Antidiscrimination Law, 101 Harv. L. Rev. 1331, 1363 (1988).
34See Harris, Fisher’s Foibles, at 680 (“The wages of whiteness . . . are an expression of the relative value of not being part of a group at the absolute bottom of the social and economic hierarchy.”).
35For those who would question the overrepresentation characterization, I might ask how overrepresentation is not the inevitable outcome of, inter alia, legacy preferences—which are untethered to merit, common at elite institutions, and disproportionately benefit class-privileged whites.
36Note the parallels to the earlier discussion about racialized class narratives that simultaneously (a) justify Black poverty (the ostensible product of cultural deficiencies, not racial discrimination) and (b) legitimate white wealth (the ostensible product of neutral market forces, not racial discrimination).

Essay

Critical-Race Theory Intersectionality

Affirmative Action at a Crossroads

Online

Reframing Affirmative Action: From Diversity to Mobility and Full Participation

andreazhou2026 — Fri, 30 Oct 2020 23:32:47 +0000

Reframing Affirmative Action: From Diversity to Mobility and Full Participation

Susan P. Sturm

Susan P. Sturm is the George M. Jaffin Professor of Law and Social Responsibility, the Director of the Center for Institutional and Social Change at Columbia Law School, and Director of Policy for the Broadway Advocacy Coalition.

andreazhou2026 Fri, 10/30/2020 - 18:32

October 30, 2020

At the same time that a national racial reckoning has galvanized students to press higher education institutions (HEIs) to face up to their legacies of racism and commit to antiracism, courts are considering arguments for prohibiting consideration of race in admissions decisions. Advocates for racial equity and antiracism, along with HEIs committed to racial justice, have no choice but to confront these contradictory pressures.

For decades, affirmative-action jurisprudence has framed many HEIs’ approaches to pursuing racial equity. This framework for admissions decisions elevates diversity to the position of the only court-approved and safe justification for taking race into account absent a finding of discrimination. It also makes admissions decision-making the focal point for increasing participation of people of color in higher education.

Diversity has become the talisman for constitutional race-consciousness in admissions as well as in other aspects of higher education decision-making. Even critics of the diversity rationale for deemphasizing equity fit their egalitarian rationales for race-consciousness within the diversity framework. Higher education officials and their legal counsel understandably fear branching out beyond the diversity discourse, in part due to the continued instability and uncertainty of the Court’s equal-protection jurisprudence. This fear is compounded by transparent efforts of affirmative action’s opponents to treat the Supreme Court’s affirmative-action jurisprudence as a stepping-stone to banning all forms of race-consciousness in higher education, voting, contracting, employment, and government decision-making.

Defending affirmative action as we know it continues to be important and necessary. Affirmative action is a crucial tool, particularly under current circumstances. No other strategies have worked to increase the admission of people of color to selective HEIs, at least in the short run.1 Arguments to the contrary, such as those made by Professor Richard Sander and by the plaintiffs in the litigation challenging Harvard’s use of affirmative action, have not withstood careful scrutiny. Taking as given the existing policies, priorities, and culture of selective higher education institutions, affirmative action is needed to level the playing field currently stacked in favor of White men. Affirmative action carries expressive significance, signaling continuing commitment to antiracism and full participation. Affirmative action also includes people who are more likely to care about racial justice and hold higher education institutions accountable for building antiracist institutions.

Yet, affirmative action’s preoccupation with diversity and admissions has constrained the pursuit of more transformative and potentially less legally vulnerable approaches to advancing racial equality as part of higher education’s educational mission. Affirmative action sidesteps the most pressing problems relating to racial and economic inequality and fails to engage with related issues that must be addressed to achieve racial equity. It compensates for tests’ limitations and structural biases built into the system but leaves those biases in place. It accepts that the “end states” sought under the current system are “a few of the more readily measurable ones” such as high first-year grade point averages, with questionable predictive value even for those.2 It produces short-term diversity, but maintains practices contributing to persistent inequality and declining social mobility.

Affirmative action also has skewed the Court’s equal-protection jurisprudence through its focus on admissions decision-making by highly selective universities, which has meant that the legal norms have been developed in the area triggering the greatest scrutiny and constitutional concern. Under the current admissions regime in selective higher education institutions, admissions decision-making requires making distinctions among and allocating a limited number of positions to competing individuals, making those decisions high stakes and zero-sum. Thus, the Supreme Court’s racial jurisprudence has developed in an area that triggers strict scrutiny because HEIs’ use of race in admissions has been found to operate as a classification allocating benefits and opportunities to individuals based on race.

These characteristics of admissions decision-making do not apply to many other efforts that relate to higher education’s mission and warrant consideration of race to be effective. Supreme Court jurisprudence does not restrict higher education institutions to the missions preapproved by the Supreme Court. The Court has not in fact ruled out other aspects of educational missions as a basis for considering race in educational decision-making. In the area of elementary and secondary education, other constitutionally viable justifications for taking race into account have been identified, such as addressing racial isolation. Strict scrutiny does not apply without a racial classification, or in situations where no individualized harms or benefits attach to those racial classifications. Yet, these distinctions have become blurred in both the legal and higher education discourse about legal and acceptable bases for taking race into account as part of higher education’s efforts to pursue its multiple missions.

Legality and efficacy thus call for reframing the affirmative-action debate within a broader institutional effort to address structural inequality in higher education. Affirmative action’s operation often substitutes for a more comprehensive effort to address the fundamental problems in the way we allocate educational opportunity. When affirmative action is the primary strategy for racial justice, it offers a narrow, at-the-margins response to exclusion, which deflects attention from more central problems with the current system and invites zero-sum reactions to racial justice efforts.

It is crucial to identify and address the disconnect between affirmative action and HEIs’ decisions that contribute to enduring racial and economic inequality and waning social mobility. There is a persistent and growing gap between higher education’s rhetoric of diversity, opportunity, and mobility and the reality of underparticipation, polarization, and stratification. That gap has racial, gender, and socioeconomic dimensions. The path to shoring up the legality of affirmative action actually overlaps with the structural changes required to meet the imperative of educating the next generation of students, a majority of whom will be Black and Brown and educated in nonprivileged, segregated environments.

This Essay first shows that affirmative action holds in place higher education’s role in stratifying access to higher education and restricts social mobility by race and class. It then explains practices perpetuating this structural inequality—the reward of past privilege rather than future potential, the hoarding of resources by privileged institutions, and the reliance on admissions decision-making to advance goals that in fact require broader institutional commitment and transformation. The next Part offers strategies and examples that reframe affirmative action by (1) nesting it within an effort to transform institutions to ensure full participation, (2) shifting from rewarding privilege to cultivating potential and increasing mobility, and (3) building partnerships and enabling systemic approaches to increasing educational access and success. The final Part argues that these structural approaches are less likely to trigger strict scrutiny from the courts, and will foster the inquiry needed to document the need for affirmative action in admissions and expand the justifications for race-conscious approaches.

I. Affirmative Action Normalizes Structural Inequality in Higher Education

Affirmative action normalizes the operation of a system that preserves racial and economic stratification and hierarchy. It deflects attention from decisions maintaining structural barriers to racial equity and normalizes an inequitable, unfair, and dysfunctional status quo.

Selective HEIs claim to be engines of social mobility, but reality casts them as leading actors in the growing stratification of access to higher education by race and class. Intergenerational mobility has sharply declined since 1980 in the United States, leading researchers to conclude that upward mobility is no longer the “dominant feature of American labor markets.” Higher education now contributes to that trend. “Paradoxically, increasing college access is increasing inequality within the higher education universe. High-socioeconomic status (SES) students outnumber low-SES students by fourteen to one in the most competitive four-year institutions, yet low-SES students outnumber high-SES students in community colleges by nearly two to one.” Young adults from the highest income quartile families are seven times more likely (79 percent) to earn a bachelor’s degree by the age of twenty-four than those in the lowest income quartile (11 percent). One study found that “low-income high school students in the top academic quartile attend college only at the same rate as high-income high school graduates in the bottom quartile of achievement.” Education as a channel for intergenerational mobility has been particularly muted for Black and Latinx families.

The research shows that both race and class, independently and in interaction, figure prominently in these differences in access to higher education. White students are increasingly concentrated today, relative to population share, in the nation’s 468 most well-funded, selective four-year colleges and universities while Black and Latinx students are more and more concentrated in the 3,250 least well-funded, open-access, two- and four-year colleges. More than 30 percent of Black and Latinx with a high school grade point average (GPA) higher than 3.5 (on a 4.0 scale) go to community colleges compared with 22 percent of Whites with the same GPA. Among Black and Latinx college students who score more than 1200 out of a possible 1600 points on the SAT/ACT, 57 percent eventually get a certificate, an associate’s degree, or a bachelor’s degree or better; for White students the percentage rises to 77 percent.

Recent studies show that metropolitan neighborhoods remain separated by race and income. People of color are more likely to grow up in low-opportunity communities characterized by low levels of economic attainment and high poverty. Thirty-three percent of Black children, compared with only 6 percent of White children, live in high-poverty communities. Residential separation also contributes to racial and economic isolation in schools. More than 60 percent of Black and Latinx students attend high-poverty schools (defined as schools with more than 50 percent of the students below the poverty line). White students, by contrast, are highly concentrated in more affluent suburban districts, and only 28 percent of White students attend high-poverty schools. The median wealth of White families is twenty times that of Black families and eighteen times that of Latinx families. This racialized economic inequality is compounded by structural racism documented in the criminal justice system, education, housing, and employment.

Affirmative action—both class-based and race-based—normalizes and perpetuates selective HEIs’ reliance on practices cementing this growing racial and economic divide. These practices include rewarding past privilege rather than future potential and the hoarding of resources by privileged institutions.

A. Rewarding Past Privilege Over Future Potential

Selective higher education institutions rely heavily on criteria and practices that unfairly exclude many qualified low-income students and students of color and that correlate with past privilege rather than future potential.

1. Overusing tests and other criteria.

Many selective HEIs have continued to use standardized tests to sort and rank-order applicants. These tests strongly correlate with income:

Students from families earning over \$200,000 (roughly the top 5 percent) score 388 points higher than students from families earning less than \$20,000 per year (roughly the bottom 20 percent); and students whose parents hold graduate degrees (roughly the top 10 percent) score 395 points higher than students whose parents have not completed high school (roughly the bottom 15 percent). In each case, these gaps in raw scores place the average elite student in roughly the top quarter of all test takers and the average disadvantaged student in the bottom quarter.3

A recent study of UC applicants found that “the correlation between students’ socioeconomic background and SAT scores is about three times greater than the correlation between their socioeconomic background and high-school grade-point averages.”

The overriding problem with tests’ role in selection is how they are used by selective HEIs—to rank-order applicants at the margins, to exclude applicants who could do as well as higher-scoring students, and to stand in for accountability for pursuing public values and institutional goals. Many treat the admissions process as an opportunity to increase their rankings in U.S. News and World Report. Although selective institutions take into account factors other than standardized test scores, that consideration usually helps differentiate among high-scoring test takers, most of whom come from highly privileged backgrounds. This use of tests overvalues differentials in test performance that do not correlate with meaningful performance in the first year, let alone aspects of performance that will matter over the long run. Test scores have been shown to be a weak measure of merit as compared to other available metrics, even where merit is defined only to include success in the first year of college. One study found that “students’ high-school grades and class rank reliably predicted their first- and second-year retention rates, but that the SAT didn’t add any predictive value. Two students with the same GPA and a 100-point difference in scores were just as likely to persist.”

Misplaced reliance on standardized tests also skews definitions of value toward a few measurable “end states,” particularly first-year grade point averages, at the expense of more important values.4 A study of three classes of Harvard alumni over three decades, for example, “found a high correlation between “success”—defined by income, community involvement, and professional satisfaction—and two low SAT scores and a blue-collar background.” A study of graduates of the University of Michigan Law School found a negative relationship between high LSAT scores and subsequent community leadership or community service. The “After the JD” study—a national cross-section of law graduates over the first decade of their careers—found that Black lawyers were more likely to work in government and public service positions than any other racial/ethnic group, and people of color generally were well represented in these sectors.

2. Overselecting from highly privileged, predominantly White feeder schools.

At both the undergraduate and post-graduate level, selective HEIs recruit and admit a disproportionate percentage of students from feeder institutions that are themselves highly privileged and predominantly White. “The top 20 private schools send 20 percent of their graduates to the Ivy League, Stanford, and MIT alone . . . They claim about a tenth of all of the available places in elite colleges.”5 The same pattern holds true for selective law schools, which disproportionately admit students from elite colleges.

It is also worth noting that many selective HEIs consider whether students have taken Advanced Placement courses, regardless of whether students had access to those courses. Many students of color attend high schools that do not offer such courses:

According to a 2016 survey of admissions officers, the top four factors used in admissions decisions are grades in college prep courses, grades in all courses, strength of high school curriculum, and admissions test scores. With an over-emphasis on class- and race-biased standardized tests and participation and performance in high school courses that aren’t equally available to low-income students and students of color, colleges and universities are—at best—failing to deconstruct the systemic barriers that impede Black students. At worst, they are adding another systemic barrier that makes it more difficult for Black Americans to climb the socioeconomic ladder.

A report on Latinx student representation reaches similar conclusions.

B. Hoarding of Resources and Preservation of Privilege

Selective HEIs also receive and spend a disproportionate share of both public and private resources relative to their less privileged counterparts. Disparities in patterns of support for students precollege by race and class are mirrored in the levels of investment and resources in selective colleges as compared to open-access, four-year institutions educating the vast majority of students of color, first-generation students, and students from low-income families. The number of students attending open-access institutions, most of whom are low-income and people of color, has increased at a time when the number of open-access colleges has declined, producing crowding and lower rates of investment per student in those colleges. “The 82 most selective colleges spend almost five times as much on instruction per student as the open-access schools.” This difference in levels of resources available has been linked with the differences in completion rates, which “for the 468 most selective four-year colleges is 82 percent, compared with 49 percent for open-access, two- and four-year colleges.” This dramatic difference in completion rate holds true for students with comparable entry credentials.

Trends in financial aid also play a role. Recently, many public and private institutions have dramatically shifted their financial aid policies in favor of scholarships supporting high-performing students. At the same time, increased tuition costs mean that Pell grants cover a smaller percentage of the total costs students face. Financial aid, particularly in the form of merit scholarships, is increasingly used as a way to improve institutions’ academic standing and prestige. Higher education institutions are increasingly connecting availability of scholarships to SAT scores, which are heavily weighted in the ranking scheme used by U.S. News and World Report and have much greater correlation with income than with performance in college. Much of the financial aid goes to students with the least financial need and those who would likely have attended college anyway.

Selective, predominantly White HEIs also enjoy disproportionately high levels of investment and resources, as compared to less well-endowed and more diverse HEIs. “In 2013, 138 institutions each had over \$500 million in endowment and these institutions––roughly 3.6 percent of all colleges and universities––held 75 percent of all postsecondary endowment wealth.” Federal taxpayers subsidize these endowment funds because they are tax exempt. Yet, most privileged institutions do not make good on the public responsibility represented by this public investment. “Nearly half of the members of the $500 million club enroll so few Pell Grant recipients that they are in the bottom 5 percent nationally. And nearly 4 in 5 of these wealthy institutions have an annual net price for low-income students that exceeds 60 percent of their annual family income. This effectively prices out many low-income students, funneling them to institutions that are less selective and have far fewer resources.”

Selective higher education institutions encourage this disparity by utilizing criteria in admissions that increase the likelihood of alumni contributions to their institution, including preference in admissions for children of alumni.6 Higher education institutions that face the most difficult and pressing challenges, and that educate the largest share of students of color and from low SES, have the fewest material resources and lowest amounts of investment in education.

C. Admissions Fetishism

Admissions decision-making is too limiting as the driver for efforts to address the structural barriers facing people of color and nonprivileged students. Its focus on the admissions decision point leaves unquestioned the decisions and policies that produce the pool from which admissions decisions are made. It places responsibility for justifying and advancing diversity on a small set of actors who are not involved directly in the interactions and decisions that justify the use of race as a factor to achieve the educational benefits of diversity. The actors with the power and mandate to operationalize these learning and leadership goals, most notably the faculty, remain peripheral. Yet, their involvement is crucial to both the success of the learning goals and the capacity to understand, identify, and demonstrate the relationship of race to achieving the learning and leadership goals justifying its use.

These actors operate within an overall institutional culture that often works at cross-purposes with the mission of diversity, mobility, and reducing inequality. A growing body of research shows that institutional transformation is necessary for higher education institutions to be able to attract and sustain a diverse group of students and faculty and to address the structural barriers to mobility facing these groups. The architecture of the setting––what and who is valued, how decisions are made, which interests matter, who gets to participate, how work is organized, how problems are addressed––cuts across areas of practice that tend to be siloed, and must come together. Higher education institutions seeking to create diverse learning communities, increase mobility, build global competitiveness, revitalize metropolitan areas, redress durable inequality, and cultivate leadership capacity require an architectural or systems approach.

Higher education institutions working alone cannot seriously advance toward many of the goals described above. Admissions decision-making is one step along a pathway starting much earlier and continuing long after admissions decisions have been made. Addressing issues of mobility requires the capacity to collaborate with actors in the P–12 community, as well as with government actors, community members, and other sectors. Admissions decision-making plays a significant role, but cannot alone construct the strategies needed to be successful. Piecemeal programs operating at the margins must give way to an institution-wide effort focused on advancing these goals.

Similarly, initiatives focused on faculty, students, and community members often proceed in separate spheres, without sustained attention to their interdependence and potential synergy. Faculty diversity initiatives frequently focus on expanding the pool of faculty and reducing bias in search practices, without connecting with the relationship of faculty diversity to teaching, research, and engagement. Student diversity and inclusion rarely connect to initiatives aimed at increasing faculty diversity or involving students in public scholarship. Yet, research suggests that the engagement of diverse faculty has a significant impact on student diversity and engagement, and that publicly engaged scholarship positively affects the levels of engagement of diverse faculty and students.

Additionally, research indicates that faculty reward systems do not adequately encourage faculty to engage actively in understanding the dynamics affecting thriving and success in the classroom. Institutional policies often create disincentives for faculty to spend the time and energy associated with this undertaking. Yet, faculty participation is essential both to reaping the benefits of racial diversity and to understanding why and how diversity contributes to learning, leadership development, and public problem solving. Shifts in culture and incentives will be crucial in bringing together research findings in an integrated way to better understand the synergies between student and faculty diversity, community engagement, and student success.

A broader focus is needed to take account of the challenges associated with the particular historical moment we are in. Higher education is facing a set of forces that have led many (even those who disagree about the direction of the change) to agree that we are at a moment of shift in the structure and paradigm, “a threshold moment of decline or disorienting adaptation.” The mobilization that has emerged in the wake of the most recent killings of Black people by police demands a systemic response that will produce meaningful systemic change. Issues from technology to the breakdown of the current model for financing education all have implications for the capacity of higher education to fulfill its mission, and for the communities and groups who have yet to participate in any meaningful way in the higher education enterprise.

II. Reframing Affirmative Action within a Structural Approach Advancing Social Mobility, Full Participation, and Institutional Citizenship

There are three complementary ways in which affirmative action’s framework for addressing race needs to be broadened: (1) nesting affirmative action within an overall institutional effort that links admissions with other stakeholders and combines short-term programs with long-term institutional transformation; (2) articulating and pursuing broader educational aims justifying race-consciousness and promoting a shift from rewarding privilege to cultivating potential and mobility; and (3) sharing selective higher education’s resources, including by forging robust public and private partnerships with institutions.

A. Nesting Affirmative Action Within an Institutional Transformation Effort Aimed at Advancing Full Participation

The long-term success of diversity, mobility, and student success initiatives requires that these efforts become more fully integrated into the overall culture and that their larger institutional settings undergo transformation. Some kind of integrating goal or framework is needed that will offer a holistic set of goals that focus attention on (1) the institutional conditions that enable people in different roles to flourish, and (2) the questions designed to mobilize change at the multiple levels and leverage points where change is needed. Full participation is an example of one such framework. Full participation is an affirmative value focused on creating institutions that enable people, whatever their identity, background, or institutional position, to thrive, realize their capabilities, engage meaningfully in institutional life, and contribute to the flourishing of others. It covers the continuum of decisions and practices affecting who joins institutions, how people receive support for their activities, whether they feel respected and valued, how work is conducted, and what kinds of activities count as important work. The realization of full participation in higher education thus requires an institutional-transformation strategy that sustains ongoing improvement and integrates diversity, mobility, engaged scholarship, and student success with each other and with core values and priorities. This kind of transformation involves the cocreation of spaces, relationships, and practices that support movement toward full participation.

This architectural approach is both a mindset and a set of practices enabling institutional mindfulness. Integration and innovation requires an orientation toward understanding how practices and programs relate to a larger system. This orientation engages a wide range of stakeholders in an ongoing practice of institutional design—how to construct spaces and practices that enable people of different backgrounds to enter, thrive, and contribute to using knowledge and transformative leadership to advance similar goals in both local and global communities. An architectural approach thus depends on developing institutional mindfulness—ongoing reflection about outcomes in relation to values and strategies—that enables people in many different positions to understand the patterns and practices and to use that knowledge to develop contexts enabling people to enter, flourish, and contribute value. Those who lead, teach, and shape institutions of higher education have the ability to make choices, determine commitments, and enact strategies that address change in organizational structures and cultures to achieve full participation for the next generation of students and faculty.

The Meyerhoff program at the University of Maryland, Baltimore County (UMBC), provides an example of a long-term architectural approach. UMBC harnessed a collaboration among students, faculty, administrators, philanthropists, business leaders, and other community members that is collectively committed to—and has a track record of success in––producing the next generation of diverse leadership in STEM fields. This process has been linked to a larger culture-change process that produces university research focused on the pressing problems of the day. UMBC has also become the anchor of a science and technology corridor and a generator of diverse midcareer leaders. This multigenerational collaboration resulted from a culture-change process that began in the late 1980s, in response to protests by African-American students who, along with African-American faculty, “perceived campus as ‘cold toward minorities’ and ‘racist.’”7 The process began with data-based reviews of student achievement and focus groups initiating an ongoing dialogue within the campus community about race. This process pinpointed a problem of deep concern to UMBC and to the nation: students of color, particularly Black males, were systematically receiving lower grades and abandoning their interest in STEM disciplines. The inquiry process located the source of the problem, and the solution, in the institution, and more particularly, in its culture.

The institution embraced institutional transformation to empower students as learners and leaders, and faculty and staff as engaged teachers and scholars supporting that process and producing knowledge that would connect to real-world problems. The Meyerhoff program fueled this process, and has become recognized as one of the most successful programs for increasing the participation of students of color in the STEM fields, while also increasing overall educational quality and academic success. That program initially targeted only minority students, but was subsequently expanded to include all students with a demonstrated interest in advancing racial and ethnic minorities in STEM fields.8

The strategies and infrastructure developed initially to support the Meyerhoff program served as a springboard for a larger culture change process at UMBC involving faculty and community economic development. UMBC supported faculty who were willing to devote time and energy to the mentorship of students and to engage in faculty research. It created contexts for students to collaborate regularly in supporting each other’s success, in addition to working with students in the surrounding community. Over a fifteen-year period, the school experienced a 563 percent increase in Black graduates in STEM—from eleven to sixty-three.

This process, led by the president, has produced cohorts of students, faculty, and administrators that support students’ success, including the success of African Americans as leaders in the STEM fields. The process has also engaged faculty, students, and community leaders in projects that produce significant research “to deal with global and national challenges involving the environment, security, health care, and the economy.”

B. Shifting from Rewarding Privilege to Cultivating Potential and Increasing Mobility

A set of higher education institutions––both public and private––have embraced the mission of promoting social mobility. Many public institutions were founded with this goal at their core, and their mission statements and charters identify the goal of promoting access and mobility as core to their purpose. Private higher education institutions also have identified the goal of promoting access and social mobility as a significant aspect of their mission.

Public policy has also encouraged access and mobility as a core mission of higher education. Beginning with the Morrill Act of 1862, federal and state legislation has called upon colleges and universities to serve as “engines of prosperity and agents of social mobility” and “broad gauge providers of opportunity” for rural poor and working class students in their triple mission of teaching, research, and public service.9 Many higher education institutions receive federal funds aimed at promoting higher education access for underrepresented groups. A number of state and private universities have reaffirmed the importance of creating access for underserved communities as core to their mission.

The narrative of creating higher education to advance the public good plays a particularly foundational role in the university-based professional schools. Partly through the Morrill Acts of 1862 and 1890, occupations securing a place in universities hinged the legitimacy of professional authority in part on the obligation of professional experts “to utilize knowledge in service of the public good.” Universities “endowed these professionalizing occupations with the moral authority and sense of purpose inherited from the university’s own founding logic.”10

The Fisk-Vanderbilt Master’s-to-Ph.D. Bridge program offers a case study of a program that put this mobility mission into practice, as part of an effort to increase the participation of underrepresented minorities in the sciences. It did this by forging a long-term partnership between a Ph.D.-granting R-1 institution (Vanderbilt University) and a “research active historically Black university, both of which are located in Nashville, Tennessee. The Bridge Program is intended for students who have completed baccalaureate degrees in physics, chemistry, biology, or engineering, and who are motivated to pursue a Ph.D. but who require additional coursework, education, and/or research experience.”

This Bridge program successfully shifted the usual mindset of filtering applicants on the basis of proven ability to one of identifying applicants with unrealized potential that can be honed and nurtured. Rather than relying primarily on proxies such as test scores, “[t]he Bridge admissions process explicitly searches for the qualities that will produce excellent researchers who will obtain Ph.Ds. and join university faculties, and/or will become high quality teachers who can teach diverse students, and/or will become leaders within the higher-education and scientific communities.” The Bridge program faculty conducted an extensive inquiry enabling them to identify markers for success in the Ph.D. program: “[p]assion, strong motivation to succeed, intense drive, hard work[ing], willingness to take risks, ability to overcome hardship, leadership capabilities, collaboration skills, and the ability to succeed in the classes that serve as gatekeepers to the Ph.D.”

By building a cohort of faculty and staff committed to the program involving both Fisk and Vanderbilt, the program has developed the capacity simultaneously to identify and recruit students with the capacity and potential to succeed in the Ph.D. program and to provide the holistic support and culture that fosters academic success and thriving. As part of admission to the Ph.D. program, GRE scores are considered but are not dispositive. There is an understanding that if a Bridge student has passed all of the core courses in the Master’s program, has collaborated with a research adviser at Vanderbilt, and has proved that they can handle Ph.D. level work, they are admitted.

The Fisk-Vanderbilt program has built a long-term partnership between Vanderbilt and Fisk Universities, based on the recognition of the mutual benefits of shared resources. “Vanderbilt is resource rich and Fisk is resource-ful.” The partnership created a vehicle for Vanderbilt to share its enormous material resources, and for Fisk to share its access to students of color and its effective strategies in promoting resilience and building a culture supporting and mentoring students of color. Like the program at UMBC, the Fisk-Vanderbilt bridge to Ph.D. emphasizes “a formal multi‐tiered mentoring structure to provide each Bridge student with ‘scaffolds of support’ that help to ensure a successful transition across the bridge, including a full fellowship (tuition, stipend, and insurance), individual research‐based mentoring relationships between Bridge students and graduate faculty, a strong cohort community, and opportunities for professional development and networking.”

The success of the bridge programs at Vanderbilt and Fisk and other graduate programs has invited departments around the country to experiment with decreased reliance on the GRE, both as a cutoff and a basis for rejecting otherwise promising candidates. In the wake of the pandemic, many HEIs, including highly selective institutions, have suspended or discontinued use of the SAT in their selection process for the 2021 admissions cycle. This development opens up the possibility for experimentation with admissions strategies that account for metrics other than test scores.

C. Building Partnerships Enabling Systemic Approaches to Increasing Educational Access and Success

Finally, the capacity to make good on these institutional missions will require privileged HEIs to find ways to share rather than hoard their outsized resources. Ideally, this move will be encouraged by public policies incentivizing or requiring highly resourced institutions to support students from lower socioeconomic backgrounds, as well as institutions serving students of color that have a history of underinvestment, through institutional collaborations and partnerships. Higher education institutions can initiate this process by forging partnerships and collaborations with differently resourced institutions in a position to advance a common aim related to increased mobility and full participation.

The intensive partnerships over the past two decades between Clark University, the Main South Community Development Corporation, and the University Park Campus School (UPCS) provide a window into how communities and universities can work together to make universities more inclusive, revitalize neighborhoods, and enable local schools to better connect students to opportunities. Clark University and the City of Worcester opened a school together, drawing on the shared resources of a research and teaching university, a community development corporation, and community advocates. “The partnership evolved into a mission for neighborhood stakeholders—Clark, the city of Worcester and community groups—to transform the area around the University through the rehabilitation of housing and commercial spaces, economic development, public safety and recreational activities for area residents.” UPCS became a school “run by the Worcester Public Schools, partnering closely with Clark on professional development enhancements and other ways to make it successful.” The school is open to anybody who lived in the neighborhood, and admission is by lottery. “Qualifying UPCS students attend Clark tuition-free, a pact the University has made with the neighborhood residents.”

Today, [UPCS] serves 250 students in grades seven to twelve, 80 percent of whom qualify for free and reduced lunch and another 70 percent who don’t speak English as a first language. Despite these challenges, the 10th graders typically meet or outperform state and district averages on testing, and the school boasts a 100 percent graduation rate. You can count on one hand the number of those graduates who did not go on to college in the last two decades.

Through collaboration with intermediary organizations and communities, HEIs can build systemic change with communities into their design. A growing number of HEIs have embraced their role as anchor institutions: “entities having a large stake in a city, usually through a combination of internal missions and landownership.” These HEIs use their economic and intellectual social capital and influence to “form effective local partnerships to improve the social and economic conditions of the metropolitan areas in which they are located.” For example, under the leadership of Nancy Cantor, who started this work when she was Chancellor at Syracuse University, Rutgers University has joined forces with other anchor institutions in Newark to form the Newark City of Learning Collaborative (NCLC) hosted at Rutgers-Newark’s Cornwall Center for Metropolitan Studies: “NCLC brings together all the higher education institutions in the area, the Newark Public Schools (traditional schools and public charters), some 30 college pipeline programs, a youth advisory board, and the local corporate anchors and philanthropies, to raise the post-secondary attainment rate in Newark to 25% by 2025, as part of the Lumina Foundation’s 75 metro city initiative to increase that rate nationwide to 60% by that year.” In Chicago, Newark, New York City, Cincinnati, Baltimore, Los Angeles, Texas, and around the country, collaboratives including HEIs have emerged to revitalize schools, communities, and metropolises.

The three strategies described above––taking an architectural approach to full participation, pursuing mobility through cultivating potential, and forging partnerships that collectively advance community-level higher education access—provide a blueprint for strategies that use a racial lens to understand and address the dynamics affecting access, mobility, and participation of people of color and low-SES individuals. This approach, combined with academic freedom principles’ invitation to ongoing reflection, encourages higher education institutions to understand when, why, and how race is needed to advance their educational mission, and thus to justify the use of racial classifications as part of a broader strategy.

D. Innovating at the Intersection of Legality and Institutional Transformation

Taking a more holistic and structural stance will also pave the way for HEIs to expand the justifications for race-conscious approaches and to document the need to use affirmative action in admissions decision-making.

This move invites a both/and approach to framing race, one that both considers race and insists that race be connected and justified in relation to more general values rooted in higher education’s mission. This move is not the same as color blindness. Instead, it nests race––and other social categories that operate to shape levels of participation and engagement––within a broader set of educational goals and values. It legitimates the specification of affirmative goals and strategies and invites inquiry about the relationship of race (and other categories of difference) to the realization of those goals and values.

Justice Anthony Kennedy has suggested that race-conscious efforts that do not use racial classifications to allocate benefits do not warrant strict scrutiny. In Parents Involved in Community Schools v. Seattle School District No. 1, Justice Kennedy’s concurrence states that public school districts seeking to promote a racially integrated educational environment “are free to devise race-conscious measures to address the problem in a general way” that avoid the use of racial classifications. Strict scrutiny applies to racial classifications that allocate benefits to individuals based on race. However, the Court’s jurisprudence suggests that strict scrutiny may not apply to decisions or practices that are race conscious but do not classify individuals based on race or allocate benefits or opportunities to individuals based on race. As Justice Kennedy stated in the context of K–12 education:

If school authorities are concerned that the student-body compositions of certain schools interfere with the objective of offering an equal educational opportunity to all of their students, they are free to devise race-conscious measures to address the problem in a general way and without treating each student in different fashion solely on the basis of a systematic, individual typing by race.

Kennedy goes on to articulate a greater zone of movement and autonomy from scrutiny for structural mechanisms that do not allocate benefits to individuals based on racial classifications:

These mechanisms are race conscious but do not lead to different treatment based on a classification that tells each student he or she is to be defined by race, so it is unlikely any of them would demand strict scrutiny to be found permissible . . . Executive and legislative branches, which for generations now have considered these types of policies and procedures, should be permitted to employ them with candor and with confidence that a constitutional violation does not occur whenever a decisionmaker considers the impact a given approach might have on students of different races. Assigning to each student a personal designation according to a crude system of individual racial classifications is quite a different matter; and the legal analysis changes accordingly.

Many of the strategies described in this Part also employ various forms of race-consciousness to take account of the ways that institutions and policies erect barriers to full participation by people of color, and to forge long-term partnerships with the communities and institutions invested in the success of people of color. These strategies are less likely to trigger strict scrutiny and reflect long-term institutional commitments to antiracist culture change.

III. Conclusion

This Essay suggests that there is a way to reconcile the demands both to pursue antiracist institutions and to support affirmative action in the face of legal challenges to race-consciousness. It involves a sustained, demonstrable commitment to culture change. There is no silver bullet, no quick fix. The most legally defensible approach involves changing the norms of our most privileged higher education institutions from prestige to purpose, from exclusivity to inclusivity, from privilege to potential. That is the surest way to make good on the legacy of affirmative action.

1Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, 397 F. Supp. 3d. 126 (D. Mass. 2019) (“Racial categorizations are necessary to achieve those goals. In the absence of such categorizations, racial diversity at Harvard would likely decline so precipitously that Harvard would be unable to offer students the diverse environment that it reasonably finds necessary to its mission.”).
2Howard Gardner, Vygotsky to the Rescue, in Lani Guinier & Susan Sturm, eds., Who’s Qualified? 50 (Beacon 2001).
3Daniel Markovits, The Meritocracy Trap 132 (Penguin 2020).
4Gardner, Vygotsky to the Rescue, in Guinier & Sturm, eds., Who’s Qualified? 50 (cited in note 3).
5Daniel Markovits, The Meritocracy Trap 133–34 (Penguin 2020).
6See Daniel Markovits, The Meritocracy Trap 111–56 (Penguin 2020) (noting that, under pressure, some selective HEIs have eliminated alumni preferences).
7See Kenneth I. Maton, et al., Enhancing Representation, Retention and Achievement of Minority Students in Higher Education: A Social Transformation Theory of Change, in Marybeth Shinn & Hirokazu Yoshikawa, eds, Toward Positive Youth Development: Transforming Schools and Community Programs 115–32 (2008).
8For a more extended discussion of UMBC and the Meyerhoff program, see Maton, et al., Enhancing Representation, Retention and Achievement of Minority Students in Higher Education (cited in note 8).
9Nancy A. Cantor, A New Morrill Act: Higher Education Anchors the ‘Remaking of America’, The Presidency (Fall 2009). See also Scott Peters, Democracy and Higher Education: Traditions and Stories of Civic Engagement (2010).
10Rakesh Khurana, From Higher Aims to Hired Hands: The Social Transformation of American Business Schools and the Unfulfilled Promise of Management as a Profession 81, 83 (2010).

Essay

Diversity Inequality University Admissions

Affirmative Action at a Crossroads

Online

Before Bakke: The Hidden History of the Diversity Rationale

andreazhou2026 — Fri, 30 Oct 2020 22:29:59 +0000

Before Bakke: The Hidden History of the Diversity Rationale

Anthony S. Chen

Anthony S. Chen is Associate Professor of Sociology and Political Science at Northwestern University, where he is also a Faculty Fellow at the Institute for Policy Research. The author of The Fifth Freedom: Jobs, Politics, and Civil Rights in the United States, 1941–1972 (Princeton, 2009), he is interested in political sociology, historical sociology, and American political development, with a special emphasis on civil rights, social and economic policy, and business-government relations.

Lisa M. Stulberg

Lisa M. Stulberg is Associate Professor of Sociology of Education at New York University’s Steinhardt School of Culture, Education, and Human Development. The author of Race, Schools, and Hope: African Americans and School Choice after Brown (Teachers College Press, 2008) and the co-editor (with Sharon Lawner Weinberg) of Diversity in American Higher Education: Toward a More Comprehensive Approach (Routledge, 2011), she researches the politics of race and education, and LGBTQ+ social change.

Chen and Stulberg are completing a book on the history and development of race-conscious affirmative action in college admissions.

andreazhou2026 Fri, 10/30/2020 - 17:29

October 30, 2020

For all of the legal and political contention surrounding affirmative action, one facet of the discussion is characterized by a curious, if implicit, consensus that spans all manner of ideological and partisan divisions.

There is nearly universal agreement in scholarly and popular circles about when the diversity rationale first appeared and began to take root in the context of college admissions. A wide-ranging cast of actors is given credit for devising and propagating the basic idea that diversity is educationally beneficial, but there is little difference of opinion about the timing of its emergence.

The diversity rationale is believed to have been a creature of the troubled, fractured years that came after the achievement of formal, legal equality. This period is often portrayed as a time of vertiginous flux, when American cities were burning, personal identities were beginning to eclipse common dreams, trust in authority was collapsing under the weight of Vietnam and Watergate, globalization was eroding the economic dominance of the United States, and a New Right anchored in the suburbs and the Sunbelt was readying itself to seize center stage in American politics.

One widely held perspective traces the prominence of ideas about diversity to the failures of the New Left in the 1970s. The historian Mark Lilla argues in The Once and Future Liberal that activists in the civil-rights, feminist, and gay rights movements originally shared the same goals and hopes: namely, for “equality and dignity as citizens.” But he claims that something profoundly changed within liberalism starting in the 1970s, and the New Left began to splinter along lines of issue and identity. There was an “abdication” of the universal ideals that had motivated earlier generations of liberals, and the different movements that made up the New Left mutated into “identity liberalism.” Instead of developing a “fresh political vision of the country’s shared destiny,” this new liberalism became “mesmerized by symbols” such as “achieving superficial diversity in organizations.” As he asserts elsewhere, there is now a widespread and unconstructive “fixation on diversity in our schools.” Although he never argues the specific point, it is clearly implied in the development of his ideas: the value ascribed to diversity in education today is the product of a wayward “identity liberalism” that began to stray in the 1970s from its more universalistic roots.1

Law professor Peter H. Schuck points to a particular segment of the New Left as especially “central” in legitimating diversity in American culture. In Diversity in America, he maintains that “diversity values came to be elevated in our public discourse” in good measure through the “ideological influence” of the “black nationalist movement.” Schuck argues that a more “optimistic, unifying vision” of American identity—assimilationism of the “melting pot” variety—prevailed in the late-1960s, at which point “black separatism gained greater influence over the civil rights movement” amidst “urban riots and the Nixon administration’s accession to power.” The idea that racial and ethnic groups were each uniquely valuable fragments of a larger mosaic grew through the early 1970s and was amplified powerfully by the Ford Foundation, Rockefeller Foundation, and other major charitable institutions. By the 1970s, in Schuck’s analysis, “diversity values” had become sufficiently prominent to gain recognition in the U.S. Supreme Court, through cases such as Lau v. Nichols (1974) and Regents of California v. Bakke (1978).2

A second set of narratives about the origins of diversity highlights the importance of university elites. According to sociologist John David Skrentny’s The Minority Rights Revolution, university leaders and their reaction to the tumultuous events of the late 1960s and early 1970s hold greater significance than any segment of the New Left. Skrentny argues that “fear of black violence was the original rationale for affirmative admissions” as urban riots and campus disorder swept the country in the mid- to late-1960s. But university administrators quickly began to “develop other rationales.” By the middle of the next decade, “university elites” had clearly thrown themselves behind the policy of affirmative action and began to apply their “zeal and creativity” to working up new “reasons why it was a good idea.” One such idea, which emerged in professional schools, was the notion that “diversity” was good for all students, not only Black students and other racial minorities.3

In The Shape of the River, former Ivy League Presidents William G. Bowen and Derek Bok offer a less skeptical take on the role of university officials, whom they find adopted affirmative action for multiple reasons. Although a sense of moral responsibility for rectifying past injustices was chief among them, so was a desire to “enrich the education of all their students by including race as another element in assembling a diverse student body.” Nevertheless, Bowen and Bok find that the critical period came in the years that followed President Lyndon B. Johnson’s 1965 commencement address at Howard University, where he laid out ideas that were subsequently taken as legitimation for the establishment of affirmative action in a range of American institutions.4

A third collection of arguments about the rise of the diversity rationale does not necessarily deny the relevance of the New Left or university leaders but instead puts a special emphasis on the significance of the federal courts, and specifically Justice Lewis F. Powell Jr.’s opinion in Regents of the University of California v. Bakke (1978). Goodwin Liu rightly observes that Bakke is the first case in which “educational diversity as an important state interest” receives “[j]udicial recognition.”5 Cultural sociologist Ellen Berrey adds that Powell’s opinion served as a major source of legitimation for the diversity rationale.6 But others go beyond these claims to ascribe still greater significance to the case. For instance, literary theorist Walter Benn Michaels argues that race and diversity “came to be firmly associated” as a result of Bakke.7

Peter Schmidt’s assertions are even more boldly formulated. Yet they are typical in the outsized role they ascribe to Bakke. A long-time reporter and editor for The Chronicle of Higher Education, Schmidt echoes Skrentny in insisting that the leaders of selective colleges “said little about the educational benefits” of diversity when they adopted affirmative action. In his view, “[s]elective colleges began lowering the bar for minority applicants back in the late 1960s to promote social justice and help keep the peace.” Affirmative action was a product of “black rage and white fear,” and it was initially adopted by university elites to “send black America a clear signal that the establishment it was rebelling against was in fact open to it.” According to Schmidt, what Justice Powell’s opinion in Bakke did was swap this rationale with a new one, “replacing a rationale grounded in history with one grounded in educational theory.” In a 2008 opinion piece published in the Wall Street Journal, Schmidt puts the point even more polemically: “Thirty years ago this past week, Supreme Court Justice Lewis F. Powell Jr. condemned our nation’s selective colleges and universities to live a lie.” Schmidt goes on to argue that Justice Powell’s opinion “prompted these institutions to justify their use of racial preferences in admissions with a rationale most had never considered and still do not believe—a desire to offer a better education to all students.”8

There are only rare exceptions to the conventional wisdom about when the diversity rationale began to take root in American higher education. In The Chosen, his study of inclusion and exclusion at Harvard, Yale, and Princeton, sociologist Jerome Karabel notes that diversity had been educationally valued among the “Big Three” for decades, albeit in a qualified and variable manner. According to Karabel, Harvard especially “took pride in the diversity of its student body” as early as the turn of the twentieth century. This sensibility was manifest in President Charles W. Eliot’s welcome to new students in 1900. “The majority [of our students] are of moderate means,” Eliot said, “and it is this diversity of condition that makes the experience of meeting men here so valuable.” During the 1920s, concerns about diversity took a more restrictive turn under Harvard’s President A. Lawrence Lowell and admissions chair Henry Pennypacker, and schools like Harvard sought geographic diversity as a way of limiting the number of Jewish students. Harvard’s limits on Jewish enrollment were eased after the Second World War under President James Conant, although the emphasis on geographic diversity (and nonacademic qualities) initiated in Lowell’s time remained in place. Harvard was not alone in prizing student diversity during the postwar years. Although it continued to largely exclude African Americans, Princeton under the leadership of President Harold Willis Dodds was similarly interested in achieving a geographically and economically diverse class in the 1950s, and Karabel credits Dodds with transforming Princeton into “an increasingly diverse and open institution.” Karabel’s account makes it clear that it is profoundly ahistorical to think that the diversity rationale emerged ex cathedra from Justice Powell’s opinion.9

This Essay builds on Karabel and draws on our original research in the primary sources to question the conventional wisdom about the origins of the diversity rationale.

We argue that the period critical to understanding the rise of the diversity rationale is not the late 1960s and 1970s but rather the early 1960s, when Americans were electing the first Catholic to the presidency, when violent reprisals were accompanying the integration of Ole Miss, when the Dr. Rev. Martin Luther King, Jr., and John Lewis were delivering speeches from the steps of the Lincoln Memorial, and when Congress was deciding whether to pass a bill that eventually became the Civil Rights Act of 1964. This is the moment when many of the values that now receive pride of place in American higher education were first elevated to national prominence and became the subject of serious discussion at numerous institutions of higher education. This was the moment when college and university administrators, especially those based in the Ivy League, were beginning to fully embrace the conviction that diversity was educationally valuable. Wary of relying too heavily on standardized tests, they sought to preserve their discretion in assessing the academic merit of applicants and gauging the value that each applicant would add to the composition of the class as a whole, relying broadly upon an admissions apparatus that had been originally developed decades earlier to exclude Jewish applicants. Race was initially just one of many dimensions of diversity that were on the minds of college and university administrators, but the dramatic struggle over civil rights in 1963 gave race a new, decisive salience. By 1967, there was a critical mass of institutions that sought to secure the educational benefits of a diverse study body, and racial diversity ranked among the forms of diversity that they valued the most.

* * *

If there was once a moment when a large number of Americans were untroubled by the notion that the United States was a White, Protestant nation, that number had shrunk substantially by the time President John F. Kennedy was inaugurated in 1961. The election of a Catholic president was only one of many signs that more and more Americans were increasingly reconciled and even open to the fact of religious, ethnic, and racial difference—domestically and globally. Many forces were responsible for the shift, including the activism of the civil-rights movement, Jewish groups like the American Jewish Congress, and industrial unions. But the theological and intellectual leadership of ecumenical or mainline Protestantism also played a critical role, as historian David Hollinger has compellingly written. In publications like Christian Century and speeches from the pulpit, ecumenical leaders encouraged their coreligionists to turn away from a Protestant-based conception of American nationalism, embrace human differences wherever they were found, and work toward the diminution of group-based inequality in the United States and around the world. It is true that the Presbyterians, Baptists, Methodists, Congregationalists, Lutherans, and Episcopalians who formed the mainline National Council of Churches (NCC) hesitated to throw their weight fully and publicly behind the civil-rights movement until 1963, fearing the attacks of their evangelical rivals, but the “egalitarian impulses and the capacities for self-interrogation” cultivated by the leadership of ecumenical Protestants over the postwar years enabled their “community of faith” and many other Americans to “engage sympathetically” with a “panorama of ethnoracial, sexual, religious, and cultural varieties of humankind.”10

A sympathetic engagement with difference was increasingly reflected in many areas of American life in 1961. In the field of higher education, it found expression in the conviction that diversity was educationally beneficial. One of the earliest educational leaders to embrace the idea was Wilbur J. Bender, Harvard’s dean of admissions during the Eisenhower years. In his time as dean, Bender sought to compose a student body that achieved a studied balance between different groups, and he believed that Harvard had been doing well. It had been selecting the right proportions of public-school students, private-school students as well as future scientists, scholars, lawyers, businessmen, and politicians; in his estimation, this diversity was the foundation of Harvard’s greatness.11

Of course, not everyone shared Bender’s views. Some of Harvard’s scientists wanted to restructure the admissions process to revolve primarily around academic and intellectual qualities, and they eventually raised enough of a ruckus that Bender decided to retire.12

But he did not go quietly. In the fall of 1961, Bender published an essay that first appeared in the Harvard Alumni Bulletin (HAB), and then eventually the Boston Globe and the Princeton Alumni Weekly (PAW). In it, he presented a detailed critique of the impulse to institute a “single-factor” admissions policy based strictly on academic criteria, which he called a “top-one-percent policy.” It was problematic in his view to select students on “apparent relative academic promise” alone. Not only was it difficult to predict intellectual distinction, pursuing such a policy would alienate the alumni, most of whose children presumably would not make the cut. At the same time, there were positive reasons to retain a system of holistic assessment in which the way that a particular applicant might add diversity to the incoming class was valued alongside their academic potential. Bender suggested that admitting within a “broader range of academic ability” would make Harvard a “wonderfully interesting and rewarding place,” and it would avoid creating the “warping and narrow experience” of institutions that selected students primarily on intellectual ability. Composing a class to include students with qualities other than pure smarts—looking for traits such as “[j]udgment,” “curiosity,” “independence,” “honesty,” “courage,” “sensitivity,” “generosity,” and “energy”—enhanced the “quality of a college, its atmosphere, its impact on students, and its contribution to society.” Bender wrapped up his essay in a passage that explicitly invoked the word “diversity” itself:

In other words, my prejudice is for a Harvard College with a certain range and mixture and diversity in its student body—a college with some snobs and some Scandinavian farm boys who skate beautifully and some bright Bronx pre-meds, with some students who care passionately if unwisely (but who knows?) about editing the Crimson or beating Yale, or who have an ambition to run a business and make a million, or to get elected to public office; a college in which not all the students have looked on school just as preparation for college, college as preparation for graduate school, and graduate school as preparation for they know not what. Won’t even our top-one percent be better men and better scholars for being part of such a college?13

Bender and Harvard may have been slightly ahead of other schools in the Ivy League, but they were hardly alone. Columbia’s director of admissions in the early 1960s similarly extolled the educational value of diversity. In an annual report to headmasters, principals, and counselors covered by the New York Herald Tribune in 1962, Henry S. Coleman expressed doubt about the wisdom of trying to convey a portrait of the current “freshman class” using “statistics,” which he regarded as “necessary but barely adequate indicators of the intellectual and human qualities of the 670 young men” now in the midst of their first year at Columbia. The numbers that gave him the most confidence were those that showed the “greater diversity of Columbia’s students.” Admitting applicants who would enhance Columbia’s diversity had recently become a priority for the school. “In last year’s report,” Coleman recalled, “I wrote that diversity was a quality we would be seeking more energetically, and I am pleased to inform you that our search has been moderately successful.” Coleman’s rationale for prioritizing diversity was based on his observations about the changing educational needs of American youth:

Young people, if I read the times correctly, seem to pay more attention to their peers than to authorities. They prefer to discuss things among themselves rather than seek the advice of elders, even professors. This means that learning can be maximized today by selecting classes of young men of such intelligence, direction, variety, and cooperativeness that they will learn from and teach each other.

Coleman took pains to note that the average board scores of the class had “not changed appreciably” from the previous year. The quality of the class remained high by conventional measures. But he also reported that Columbia had been experimenting with using different indicators of academic potential. The verbal score on the SAT was still a “fairly reliable indicator of a young man’s ability” to successfully complete a rigorous liberal arts education, but admitting students whose “background, environment, poor schooling, or foreign education may have hindered them in mastering verbal schools at the school level” meant looking for “other reliable indications of outstanding promise and potential.”14

When discussing the value of diversity, Coleman did not explicitly foreground race, but neither did he avoid the topic. In an article featured in Columbia’s alumni magazine, he explained that the admissions office was not looking for any single type of student. “We can’t, since at Columbia we believe that diversity is educationally essential” given the way that students learn from one another. Accordingly, Columbia sought “outdoor types who want to be archaeologists or geologists . . . and indoor types who prefer the odors of a chemistry lab or the brown-edged fragility of seventeenth century documents.” That was not all: “We seek gregarious fellows, musical fellows, athletic fellows, literary fellows, mathematically adept fellows. We seek daring leaders and thorough followers.” The best way to identify such a diversity of students was to refuse to let test scores dominate the selection process. Reading too much into test scores had the effect of suppressing diversity. To bolster his point, Coleman pointed to the example of a “Negro lad that Columbia admitted from a segregated school in the South.” This student was a straight-A student in high school, but scored in the low 500s on his boards. The admissions committee would appear to have spotted something in him, and he was admitted with a scholarship. Quickly, he began catching up to his classmates, and now he was doing fine. “He’s cheerful, is making friends, and had a B minus average in his freshman year. Not all of our gambles turn out well, but Columbia would be a duller place without them.”15

It was not just Ivy League universities that appeared to value diversity in their student body. The president of Amherst College sounded many of the same notes as Coleman. Calvin H. Plimpton said that Amherst sought out applicants of many different kinds, and not necessarily the best grades and test scores, as long as there was evidence they could “do the work.” As he explained, “students learn not only from teachers but from each other,” and having a varied student body would enhance their educational experience. (Plimpton did not himself use the word “diverse,” but the New York Times reporter did.) In language reminiscent of Bender’s, Plimpton spelled out what he had in mind. “This would mean a good mixture of city boys and country boys, rich boys and poor boys, bright boys and average boys, athletes and physically handicapped boys, Americans and foreigners, boys of all races, of all faiths and even no faith.” A piece in the Boston Globe observed that colleges had once been preoccupied with filling classrooms with bodies, but they now were more selective in their admissions—and they were competing with one another for “brains and diversity” in the hopes of achieving national stature.16

Nor were selective institutions in the Northeast the only ones that sought out diversity. Some leaders at some of the most selective private schools in the South also clearly understood that a diverse class would be educationally valuable to all of their students, and they sought at times to bring their admissions policies in line with their convictions. For instance, in a 1962 report of the admissions committee, admissions officers at Duke University recommended the establishment of a policy that would enable them to reap the educational benefits of diversity: “We believe that a policy should be established to enable the admissions officers to seek out students from socioeconomic levels not presently very well-represented in the student bodies of the colleges. The sharp minds and determined spirits of such students should help leaven our mass of upper middle-class, suburban, well-to-do groups.”17

While race was one of several dimensions of diversity that was regarded as educationally beneficial by selective institutions in the early 1960s, it received a new emphasis in 1963 as a result of rising national concern over civil rights—concern that was prompted by the mass mobilization of the civil-rights movement. At the beginning of 1963, civil-rights protests were largely local in nature. President Kennedy had barely mentioned the issue in his State of the Union Address, and stories about the topic had rarely made it above the fold in the newspaper. That changed with the epic showdown in Birmingham, where civil-rights activists succeeded in extracting major concessions from city elders and transforming the legislative agenda of the Kennedy administration. By summer, critical news on civil rights seemed to break practically every day. In a single, twenty-four-hour period in early June, President Kennedy denounced segregation and asked Congress to pass his civil-rights bill; the staunch segregationist Alabama Governor George Wallace made good on a campaign promise to “stand in the schoolhouse door” at the University of Alabama; and NAACP field secretary Medgar Evers was shot in the back and killed in the driveway of his own Mississippi home. By the end of the year, after a fall punctuated by the March on Washington and the bombing of the Sixteenth Street Baptist Church, half of those Americans surveyed by the Gallup Poll believed that civil rights were the most important problem facing the country. Kennedy had been martyred, and his civil-rights bill was halfway through Congress.18

The intensification of national concern about civil rights was expressed in the context of higher education as a heightened interest in the racial background of college applicants, and the change was plainly evident in the way that the issue of college admissions was covered in the press. Through the early months of 1963, articles on college admissions rarely mentioned Black enrollment specifically or the racial identity of applicants and matriculants more generally. But coverage of these topics took off soon thereafter.

A Boston Globe article appearing in 1964 provides a good example. The subject of the article was the Cooperative Program for Educational Opportunity (CPEO), an organization that was established to increase the number underrepresented applicants to the Ivy League and Seven Sisters: “primarily Negroes, but also Puerto Ricans and every other type of deprived child, white or otherwise.” Yale’s dean of admissions, Arthur Howe Jr., noted that a sense of “social responsibility” was a big part of Yale’s motivation for participating in the CPEO. “We have done less than we think we should have,” he said. But he also pointed to “personal interest,” by which he seems to have meant the institutional interest of colleges and universities. “Each college,” he said, “feels that it will enrich itself in enrolling such students and that it will have the diversity that we all talk about in our catalogs.” What he was saying was not particularly clear, but it was clear enough. Yale was taking part in the CPEO in order to make good on the kind of education it implicitly promised in its promotional materials, an education enriched by a diverse collection of classmates.19

A report by Roger Ricklefs in the Wall Street Journal similarly reflected what many admissions officials at selective institutions were saying and thinking about diversity in 1965. Ricklefs’s article was given the title “Diverse Campuses,” and one of the subtitles made it perfectly clear that race was a prime form of diversity: “Columbia Gives Negro Edge over White Applicant; Yale Will Recruit in Puerto Rico.” A quote from Columbia’s Coleman typified what many officials were hoping to achieve with their admissions policies: “We don’t want the well-rounded boy so much as the well-rounded student body.” Harvard’s director of admissions and Bender’s successor, Fred Glimp, went beyond Coleman to explain why a well-rounded student body mattered. “Diversity in the student body itself,” he said, “is as potent an educational factor as the faculty and facilities. You want a farm boy banging heads with a city boy.” Like other educational leaders at the time, Coleman and Glimp were convinced that diversity yielded educational benefits to every student, and institutions of higher education should strive to deliver them.20

This understanding and embrace of diversity—in which race and ethnicity figured prominently—was not restricted to university elites. In his reporting, Ricklefs found that students themselves valued diversity. One student at Yale was interviewed for the Yale Alumni Magazine, where he made his views perfectly clear. “In high school all my friends came from similar backgrounds, sarcastically called WASP (for white, Anglo-Saxon and Protestant),” said a Yale student from suburban Chicago. “Here I am exposed to so many different people and opinions that I expect I’ll be jolted out of this comfortable mold of sameness. I expect the freshman year to be very broadening.” A student at Columbia from Wyoming said he appreciated the way that going to school there had broadened his social attitudes. “I had never been east of Nebraska. Everybody warned me to watch out for Jews and Italians at Columbia and I more or less accepted this. Now I just can’t see how anybody could ever have that attitude.”21

* * *

If it is correct to believe that the critical period for the advent of the diversity rationale came before Bakke—indeed, if it is correct to think that it was the early 1960s rather than the late 1960s and 1970s that mattered the most—what is the broader significance of such a conclusion?

We suggest three takeaways from this revision of the historical narrative.

The first concerns how Justice Powell’s opinion in Bakke is understood. There can be little doubt that his opinion is a watershed of sorts, but its significance seems overstated in some ways and misunderstood in others. The most audacious claims that are made about it are clearly inconsistent with the historical record. It did not replace a real rationale that emerged out of historical experience with a concocted one that nobody really believed. Nor did it elevate the wishful fantasies of one or two schools to a position of prominence that was wildly out of sync with the actual depth of interest in diversity. Justice Powell’s opinion was far from a clever act of legal prestidigitation. But other claims about it with a more reasonable basis would seem to merit a degree of revision as well. It did not create de novo the association between race and diversity. Nor did it confer intellectual legitimacy upon a rationale that otherwise lacked it.

Justice Powell’s opinion and Bakke more generally represent the moment when the high court first recognized the effort by educational institutions to secure the educational benefits of diversity as a compelling state interest. As such, it reflected values and policies that were already taking root in higher education. It followed a process of institutional change that had been underway for more than fifteen years, led by administrators such as Bender, Coleman, and Glimp. At the same time, Bakke served as a mechanism through which institutional changes that had begun at some schools were scrutinized and sifted, and the institutional changes that survived the process were disseminated more widely throughout American higher education. A particular subset of values and policies that originated out the field of higher education were hence legally and constitutionally legitimated in Bakke, and these values and policies then fed back into a wider swath of higher education. Bakke elevated the diversity rationale to a position of new significance, but it did not conjure it up outright.

The second takeaway concerns the connection between diversity and liberalism. In most versions of the conventional wisdom, diversity is construed as a departure from liberal ideals. In the bleakest accounts, it is comprehended as a betrayal of liberalism. These claims have resonated so powerfully in the public imagination partly because the initial advent of the diversity rationale has been anchored chronologically in the late-1960s and 1970s, when most narratives of liberal declension begin. Our findings suggest that diversity is a creature of a somewhat earlier period—one that is typically seen as a time of optimism and opportunity for liberalism. As such, what our findings suggest to us is that the growing commitment to diversity that was evident in the early 1960s is best understood not as a wholesale deviation from liberalism but rather a distinct expression of it.

A third and final takeaway concerns the reluctance that prevails in some quarters to grant educational institutions even a modicum of deference in identifying their educational commitments and formulating plans for attaining them. It is not hard to detect the skepticism with which the motives of college and university administrators are greeted in the conventional wisdom. University presidents and admissions officers are often said to have been creative or zealous in coming up with rationales for affirmative action, and it is implied in not so many words that their shift in emphasis from compensatory justice to diversity was insincere and disingenuous. One of the earliest and sharpest formulations of the point came from Harvard law professor Alan Dershowitz and Harvard law student Laura Hanft in a 1979 article that appeared in the Cardozo Law Review. The authors write in it that the “raison d’être for race-specific affirmative-action programs has simply never been diversity for the sake of education.” Indeed, diversity recently has served as a “clever post facto justification for increasing the number of minority group students in the student body.”

Our research in the primary sources suggests that the concerns of skeptics may be overwrought. We find that a nontrivial number of admissions officers at selective institutions around the country embraced the educational value of diversity—including the educational value of racial diversity—more than a decade before Bakke. The courts were nowhere in sight, and the Civil Rights Act of 1964 was not even law in many instances. The belief that institutions of higher education are not deserving of deference may ultimately be justified, but our findings strongly suggest that it should be rooted in actual evidence of malfeasance, rather than simply the ahistorical insinuation that the rhetoric of diversity was originally mobilized in order to provide educational institutions with a pretext for operating a legally and constitutionally dubious program of “racial preferences.”

Today, diversity is a dirty word to some Americans. This is most plainly evident in the rhetoric and policies of President Donald J. Trump. In December of 2017, his administration went so far as to forbid his Centers for Disease Control and Prevention from using seven words in its work, and “diversity” was on this list (along with, among others, “science-based,” “transgender,” and “fetus”). Diversity is also on trial these days. In a case that has now reached the First Circuit Court of Appeals, Harvard is currently defending its admissions plan from Students for Fair Admissions (SFFA), who charge that it intentionally discriminated against Asian American applicants. In their original complaint, SFFA argues that the decisions of the Supreme Court holding that “there is a compelling government interest in using race as a factor in admissions decisions in pursuit of ‘diversity’ should be overruled.” The plaintiffs allege that the “Supreme Court’s jurisprudence in this area has been built on mistakes of fact and law,” and they appear to suggest that Bakke was wrongly decided, citing the precise passages from the Dershowitz and Hanft article (highlighted above) that characterize Harvard’s commitment to diversity as little more than a pretext. Even in scholarly circles, where less is immediately on the line when disagreements arise, “diversity” carries a tinge of illegitimacy that is unmistakably implicit in the conventional wisdom about when and why it first emerged.22

Based on our research in the historical record, we argue that it is high time to revise the conventional wisdom. Arguments about affirmative action will go on, but we hope they will unfold on a sounder foundation of evidence and facts.

1Mark Lilla, The Once and Future Liberal: After Identity Politics 7–8, 14, 66 (2017).
2Peter H. Schuck, Diversity in America: Keeping Government at a Safe Distance 46, 51–55 (2003).
3John David Skrentny, The Minority Rights Revolution 166, 171–72 (2009).
4William G. Bowen & Derek Bok, The Shape of the River: Long-Term Consequences of Considering Race in College and University Admissions 6–7 (20th ann. ed. 2019) (orig. 1998).
5Goodwin Liu, Affirmative Action in Higher Education: The Diversity Rationale and the Compelling Interest Test, 33 Harv. C.R.-C.L. L. Rev. 381, 386 (1998).
6Ellen Berrey, The Enigma of Diversity: The Language of Race and the Limits of Racial Justice 27, 30, 38 (2015).
7Walter Benn Michaels, The Trouble with Diversity: How We Learned to Love Identity and Ignore Equality 3–4 (2016) (orig. 2006). In his survey of the 1970s, historian Thomas Borstelmann makes a similar argument, maintaining that the Court introduced a “new purpose” for affirmative action in Bakke. See Thomas Borstelmann, The 1970s: A New Global History from Civil Rights to Economic Inequality 314 (2013). Marcia G. Synnott argues that the Harvard model was a flawed choice on Justice Powell’s part, and she seems to suggest that Harvard’s motivations were largely self-serving. See Marcia G. Synnott, The Evolving Diversity Rationale in University Admissions: From Regents v. Bakke to the University of Michigan Cases, 90 Cornell L. Rev. 463, 469–73 (2005).
8Peter Schmidt, Color and Money: How Rich White Kids Are Winning the War over College Affirmative Action 67 (2007). Not surprisingly, Peter Wood has put the point bluntly as well. Along with Glenn Custred, Wood was one of the architects of California’s anti–affirmative-action Proposition 209 in 1996, and he argues in Diversity: The Invention of a Concept that Justice Powell’s opinion plucked the idea of diversity as educationally valuable from obscurity and elevated it to a position of legal and cultural prominence. See Peter Wood, Diversity: The Invention of a Concept 87, 99, 103 (2003).
9Jerome Karabel, The Chosen: The Hidden History of Admission and Exclusion at Harvard, Yale, and Princeton 13, 174, 196–97, 246–47 (2006). In her study of diversity at Harvard, Yale, and Princeton, Marcia G. Synnott notes that Harvard trustee Henry James (son of philosopher William James) was making the case in 1947 that Harvard needed “diversity of age, background, professional and geographical connection” in order to become a truly “national” institution. See Marcia G. Synnott, Student Diversity at the Big Three: Harvard, Yale, and Princeton Since the 1920s 8–9 (2013).
10For further discussion of national identity and religious difference in the postwar years, including the significance of Kennedy’s Catholicism in the 1960 election, see Kevin M. Schultz, Tri-Faith America: How Catholics and Jews Held Postwar America to Its Protestant Promise (2013) and Shaun A. Casey, The Making of a Catholic President: Kennedy vs. Nixon 1960 (2009).
11Karabel, The Chosen 249–55, 278.
12Karabel, The Chosen 262–71.
13Wilbur J. Bender, Top-One-Percent-Policy, Harvard Alumni Bulletin (Sep. 30, 1961); Wilbur J. Bender, Is Too Much of ‘The Best’ Bad for Harvard?, Boston Globe (Oct. 8, 1981); Wilbur J. Bender, Intellectuals or Executives? Pre-Professionals or Young Businessmen?, Princeton Alumni Weekly (Feb. 16, 1962). This passage, it should be noted, is quoted elsewhere. See Lawrence Feinberg, Harvard: The Best, Not the Brightest, Wash. Post (Nov. 19, 1989); Morton Keller & Phyllis Keller, Making Harvard Modern: The Rise of America’s University 295 (2001). We have discussed this quotation and the context that gave rise to it in an earlier, shorter piece. See Anthony S. Chen & Lisa M. Stulberg, What opponents of affirmative action get wrong, Wash. Post (Oct. 23, 2018).
14Henry S. Coleman, Columbia College: Report to Headmasters, Principals, and Counselors, 1961, Folder: Coleman, Henry S., Box 470, Columbia University Office of the President Central Files, Columbia University Archives, Columbia University; Terry Ferrer, College Boards Rated Too High, N.Y. Herald Tribune (Jan. 22, 1962); Charles H. Harrison, College Views Men Not as Statistics, The Record (Jan. 19, 1962). Coleman began emphasizing “diversity” when he took up his post in 1960. See Selecting College Freshman, N.Y. Times (Jan. 8, 1961).
15Constance Jacobs, Admission to the College, 9 Columbia College Today 7, 7–10 (Fall 1961).
16President of Amherst Decries Rigidity in Admissions Policy, N.Y. Times (Feb. 4, 1962); Go West to Get in a College, Boston Globe (Dec. 25, 1961). For additional examples of how the word “diversity” was used in the context of admissions, see also Delay in College Admissions, Chicago Tribune (Mar. 27, 1962); Knocking at the Door, Boston Globe (Apr. 5, 1962).
17Quoted in Excerpts from Past University Admissions Committee Reports and Minutes Relevant to Current Research in Admissions, Box 1, Admissions – Research Program (Experimental), 1967–1969, Douglas M. Knight Papers, University Archives, Duke University, 1.
18David Garrow, Bearing the Cross: Martin Luther King, Jr., and the Southern Christian Leadership Conference 264, 261 (1986); Aldon D. Morris, Birmingham Confrontation Reconsidered: An Analysis of the Dynamics and Tactics of Mobilization, 58 Am. Sociological Rev. 621 (1993); Tom Wicker, President in Plea, N.Y. Times (Jun. 12, 1963); Claude Sifton, Governor Leaves, N.Y. Times (Jun. 12, 1963); Claude Sifton, Whites Alarmed, N.Y. Times (Jun. 13, 1963); Paul Burstein, Discrimination, Jobs, and Politics: The Struggle for Equal Employment Opportunity 61 (1961).
19Terry Ferrer, Colleges Seek Top Negroes, Boston Globe (Feb. 5, 1964).
20Roger Ricklefs, Diverse Campuses, More Colleges Seek Students with Unusual Backgrounds, Talents, Wall St. J. (Dec. 22, 1965).
21Ricklefs, Diverse Campuses.
22Lena H. Sun & Juliet Eilperin, CDC Gets List of Forbidden Words: Fetus, Transgender, Diversity, Wash. Post (Dec. 15, 2017); Compl. at 115–16, Students for Fair Admissions, Inc. v. President and Fellows of Harvard College (D. Mass. Nov. 17, 2014) (No. 14 Civ. 14176).

Essay

Diversity Legal History

Affirmative Action at a Crossroads

Online

Pursuing Diversity: From Education to Employment

andreazhou2026 — Fri, 30 Oct 2020 21:13:19 +0000

Pursuing Diversity: From Education to Employment

Amy L. Wax

Amy L. Wax is the Robert Mundheim Professor of Law at the University of Pennsylvania Law School.

andreazhou2026 Fri, 10/30/2020 - 16:13

October 30, 2020

A core ideal of Anglo-American law is that legal wrongs should be remedied by restoring the injured victim to the “rightful position.” That position is defined as the one the victim would have occupied had the legal injury never been inflicted. This aspiration has exerted a powerful influence on American legal practice across the board. Although, curiously, the phrase “rightful position” barely figures in cases or executive orders applying federal civil-rights laws, the restorative imperative embodied in that concept has exerted an important influence on their administrative and judicial application.

Following the enactment of the Civil Rights Act of 1964, the question loomed large of how to define the “rightful position” for the targets of unlawful discrimination, exclusion, and ill treatment, and especially for Blacks. What should be the touchstone for full correction, and thus racial justice? The answer that soon took hold was that Blacks would occupy the same social, educational, and occupational positions as Whites. Perhaps the closest to a formal expression of this concept was President Lyndon B. Johnson’s famous speech at Howard University articulating as the goal of the federal civil-rights laws not just “equality as a right and a theory,” but “equality as a fact and equality as a result.”

The “equality as a fact” benchmark necessarily raised the question of how to achieve that result for victims of racial bias and discrimination. A consensus grew that the desired outcome demanded more than the legal command to stop discriminating. Reversing and undoing the lingering vestiges of past wrongs would be required. This in turn would call for the adoption of race-conscious measures across multiple domains. As Justice Harry Blackmun stated in Bakke v. Regents of the University of California in 1978, “In order to get beyond racism, we must first take account of race. There is no other way.” The practice of affirmative action, or reverse discrimination, was born of this idea.

Although specific, limited, and targeted race-conscious remedies were not hard to reconcile with established legal-equitable principles, formidable obstacles existed—political, doctrinal, and practical—to the aggressive pursuit of “equality of result” through the systematic use of race preferences. Much of the public remained wedded to individualist, impartial ideals of meritocratic selection that tolerated expanded opportunities but resisted “hard” measures like racial quotas or racial proportionality. Retrofitting remedial doctrines designed to redress well-defined, individual injuries to more nebulous group harms proved controversial and perplexing. Courts grappled with whether specific proof of discrimination, as opposed to vague allegations of societal racism, should be required. They also considered whether race-conscious orders could properly be imposed on entities never demonstrated to violate the law or in favor of persons never shown to have suffered actual discrimination. On the practical level, the “rightful position” project was stymied by entrenched customs, outright resistance, and Blacks’ lack of readiness to step into a full range of social and economic roles due to poor education and skills. Attempts to grapple with these realities produced policies of mixed efficacy and a tangle of conflicting and confusing court decisions.

Confounding this project in the important employment realm was a Civil Rights Act provision, Section 703(j) of Title VII, that disavowed any requirement that an employer “grant preferential treatment to any individual or to any group” due to racial imbalances in the workplace. The executive branch, in enforcing the law, effectively ignored and repeatedly flouted the clause’s limitations by demanding that businesses and other employing entities address lopsided racial representation regardless of whether discrimination was shown to be the cause. In The Affirmative Action Puzzle, a recent history of affirmative action, Melvin Urofsky quotes an Equal Employment Opportunity Commission (EEOC) staff member’s statement from the 1970s that his agency treated the antipreference bar in the statute as “a big zero a nothing, a nullity. [It doesn’t] mean anything to us.” Accordingly, the EEOC and an expanding network of federal offices and agencies proceeded to impose on businesses, corporations, and educational institutions ever more intrusive and onerous requirements, including hiring quotas, targets, and timetables as well as massive paperwork and documentation.

Judicial practice was more equivocal. Through a welter of fractured rulings in employment, business set-asides, and education, the courts and the Supreme Court established a set of rules permitting some types of race-conscious remedial orders to rectify proven statutory violations, and at times allowing voluntary affirmative-action programs in the absence of adjudicated legal infractions. Judicially crafted limitations on such programs included the requirements of showing some evidence of past or present discrimination beyond statistical imbalances, avoiding inflexible quotas and numerical targets, tailoring race-conscious measures as narrowly as possible, and applying them only temporarily. These strictures were not always consistently applied, which created uncertainty for economic actors subject to their mandates.

The early affirmative-action cases were primarily about jobs and businesses. By the 1990s, the action had shifted decisively to education and a new justification for race-conscious measures entered the picture: diversity. Initially developed within academia itself, that idea was put forward in Justice Lewis Powell’s famous concurring opinion in the 1978 case of Bakke, which struck down a quota-based affirmative-action plan at the University of California at Davis Medical School. Justice Powell suggested that, even if rigid quotas were legally verboten, race-based educational selection could be justified as a device to create a diverse student body. Being exposed to students from various backgrounds carried pedagogical value and enhanced the educational experience. It followed that creating student diversity, which delivered those benefits, was a goal that was “compelling” enough to overcome the law’s colorblind imperatives. Powell cited as exemplary the flexible, individualized admission protocol at Harvard College, which used race as one factor among many to craft a class representing a range of backgrounds, talents, and experiences.

Diversity quickly became the central pillar of the Supreme Court’s educational affirmative-action jurisprudence, with a majority of the Court officially recognizing educational diversity as justifying some degree of race-conscious student selection. At the same time, the Court imported the prior touchstones of a bar on rigid quotas and the expectation of narrow tailoring of racial methods. Although appearing to place genuine limits on the use of affirmative action in the educational setting, several aspects of the Supreme Court’s key rulings on the issue, including Grutter v. Bollinger (2003) and the Fisher line of cases (Fisher v. University of Texas (Fisher I (2013) and Fisher II (2016)) gave universities wide discretion to structure their admissions criteria pretty much as they wished. These included the open-ended and ill-defined nature of diversity, its elevation to a constitutional “compelling interest,” Justice Sandra Day O’Connor’s language in Grutter deferring to educational “expert” judgment, and the Court’s repeated failure to demand specific evidence of diversity’s actual benefits and efficacy. This situation earned scathing contempt from Justice Antonin Scalia, who repeatedly questioned university officials and other supposed educational “experts” averments of the value of diversity and regarded the elevation of that “compelling interest” as a pretext for the Court’s imposition of its political preferences.1

Justice O’Connor famously stated in her plurality opinion in Grutter that she expected that affirmative action would no longer be needed after twenty-five years. Albeit well-meaning, Justice O’Connor’s statement represents a misunderstanding of the implications and import of the Court’s adoption of diversity rather than remediation as the centerpiece of educational affirmative-action jurisprudence. O’Connor’s prediction is grounded in the logic of remediation and thus unavoidably informed by the “rightful position” idea. The logic of rightful position remediation dictates that proper remedies—and especially those that deviate from and go beyond the law’s mandates—can be justified only if they are designed eventually to achieve the promised result, which is to undo the injuries inflicted by a wrong. The objective of race-conscious measures to correct the wrongs of racial discrimination is to enable Blacks to catch up with other groups to the point where they can compete by dint of their own efforts and take their rightful place in society under their own steam. Once that point is reached and the damage fully undone, affirmative action will no longer be needed. But diversity as the main rationale for race-consciousness provides no reason to believe that affirmative action will reach that end point. Diversity neither promises nor requires group uplift or equalization. It rests on the educational value of Blacks’ institutional presence, not on the promise of undoing past harms or making Blacks as capable, academically or otherwise, as other groups. Diversity, unlike remediation, thus entails no prediction that affirmative action will someday be unnecessary and will be phased out. Although the point seems not to have been fully appreciated by Justice O’Connor or by those who repeat Justice O’Connor’s famous mantra, identifying diversity as the main rationale for educational affirmative action is fully compatible with affirmative action in perpetuity.

Continuing social and educational trends reaffirm “affirmative action forever” as the most realistic future scenario. Despite the initial exuberance of the Civil Rights era, it has become increasingly clear that the holy grail of steady racial progress towards “equality in fact” has remained elusive across multiple domains. More broadly, the high hopes surrounding race preferences in education and other arenas to effect enough social and economic progress in the Black community to close existing gaps have not been realized. Blacks as a group continue to suffer disproportionately from poverty, high crime rates, family breakdown, and low male workforce participation. In the education sphere specifically, Blacks on average still lag behind Whites and Asian Americans in standard measures of learning, ability, and academic proficiency, such as national K–12 achievement tests, SATs, LSATs, MCATS, and GREs. Observed differences are pervasive: even controlling for socioeconomic status and factors such as family income, school quality, and neighborhood residence, Blacks underperform other groups academically, often by a significant margin, in virtually every public-school district in the United States. Average differences translate into a stark undercount of Blacks in the higher academic ranks nationwide. This means that, without affirmative action, Blacks will be severely underrepresented at competitive and selective institutions that rely heavily on standard measures of academic ability and achievement.

Whatever the etiology of existing disparities—and factors such as racism, poverty, culture, and innate group differences have been cited—they have proved highly resistant to elimination or even enduring narrowing through instruments of law and policy. Little progress has been made in the past few decades towards closing observed racial gaps in multiple dimensions despite the widespread adoption of affirmative action in educational programs as well as in other sectors. These are the realities on the ground that continue to make affirmative action necessary for generating a so-called “critical mass” of Blacks in selective universities. In sum, current developments belie Justice O’Connor’s prediction that affirmative action will eventually be phased out some time soon.

I. Challenges with Prioritizing Diversity

In the meanwhile, the shift from remediation to diversity as the central doctrinal rationale for educational affirmative action has had several practical and legal consequences in light of important social changes that have occurred. In recent decades, a surge in immigration has produced unprecedented levels of demographic diversity. The growing numbers of potential students from a variety of ethnicities, backgrounds, and identity groups are in a position to contribute to the diversity of educational institutions. Although the situation is complex, the great majority of these groups have more or less surpassed American-born Blacks in achievement, income, employment participation, and occupational status. By enhancing the salience of some groups’ relative success in light of difficult circumstances and hardships, the diversity goal has threatened to draw attention away from the civil-rights focus on Blacks’ plight and to dilute Blacks’ primacy as uniquely deserving. And the increasingly multicultural landscape has also thrown into renewed relief the ongoing and seemingly recalcitrant educational deficits in the Black community and the failure of decades of public and private initiatives to close existing racial gaps.

The pressure to maintain what is considered a desirable student mix, including a significant presence of relatively underperforming Blacks and Hispanics in the face of growing competition, especially from Asian Americans, has induced universities to become both more aggressive and less forthright about their emphasis on race relative to other conventional academic factors in their admissions practices. This has elicited backlash in the form of proposed referenda and legislative initiatives at the state level to curtail the use of race by public universities in admissions and other programs. Some of these have succeeded. More recently, efforts to reduce race preferences have taken the form of legal action, including a high-profile lawsuit by an Asian-American advocacy group claiming that Harvard University discriminates against Asian Americans in its admissions process in violation of Title VI of the Civil Rights Act. The Justice Department Civil Rights Division also just commenced an investigation of Yale University. Although the Division’s August 2020 letter questioning Yale’s admissions practices stopped short of declaring that race could never be taken into account, it argued that Yale violated Title VI of the Civil Rights Act by routinely making race a “determinative factor” in its admissions decisions and by applying a hard, quota-like limit on the number of Asian-American students at the school.

Both legal challenges face uphill battles. The Supreme Court, in its main affirmative-action precedents, has given universities permission to make use of race as a factor in pursuit of the compelling goal of student demographic diversity. Put another way, the Court has effectively issued a license to discriminate based on race in favor of some groups—most notably Blacks and Hispanics—that would otherwise be underrepresented at their institutions based on conventional academic criteria. But it is an undeniable fact that the places available at the most competitive and desirable institutions are limited relative to the number of applicants seeking them. That means that freeing up places for Blacks and Hispanics (to achieve a “critical mass” of those student categories) necessarily entails admitting fewer students from higher-achieving groups—including Whites and especially Asian Americans. This can only be done by holding such groups to higher academic standards and reducing their likelihood of gaining admission relative to other applicants. In Glenn Loury’s words, this is “simple logic.” In sum, the affirmative-action practices the Supreme Court permits will inexorably and necessarily result in discrimination against students from some groups at selective schools.

This unavoidable equation means that Harvard University’s official litigation position that it does not practice bias against Asian-American applicants is not only unnecessary under existing jurisprudence, but also illogical and transparently implausible. These points were not completely lost on Allison Borroughs, the district judge on the Harvard case. In ruling in the university’s favor, she effectively acknowledged that the law allows Harvard to impose more exacting academic requirements on Asian-American applicants, and to reject a higher percentage of Asian Americans than Blacks, to achieve the all-important goal of undergraduate racial diversity. In other words, Harvard can discriminate against Asian Americans to the degree necessary to achieve what the school regards as a sufficiently diverse student body. The clear implication is that, absent more restrictive rules (such as might exist under state law) than the Supreme Court has imposed, similar complaints against other competitive universities are also unlikely to succeed. Unless universities dramatically change their admissions practices—for example by downgrading or abandoning conventional merit-based metrics such as the SAT, which is already happening in some places—the juggernaut of affirmative action and its double standards will continue apace.

Nonetheless, there are scenarios under which Harvard could still lose its case on appeal or in the Supreme Court (should it arrive there). Although taking account of race is precisely what Supreme Court precedent allows, the Court has articulated limits on the methods that can be used and the weight that can be assigned to race to achieve demographic balance. These limits furnish a potential basis for finding that Harvard has gone too far (as the Justice Department alleges Yale has done) under existing precedent. But even if the Supreme Court demands that Harvard curtail or modify its practices, the most likely outcome is that the university will still be allowed to limit the number of Asian-American (and/or White) undergraduates as a necessary step to freeing up spaces for Black and Hispanic students. Race preferences will continue to be part of the admissions equation.

Alternatively, albeit improbably, the Supreme Court could elect to use the Harvard case to tighten up significantly on its existing doctrine. One promising avenue would be to follow the suggestion, in concurring and dissenting opinions in past affirmative-action cases, that the Court abandon its deference to education “experts” by scrutinizing claims made on behalf of diversity more carefully and by adopting more exacting standards for evaluating its supposed educational benefits. The Court could demand that universities precisely identify, measure, and demonstrate superior outcomes from diverse educational settings. A useful natural experiment is presented by secondary schools such as the Bronx High School of Science and the Stuyvesant High School in New York City, and the Thomas Jefferson High School of Science and Technology in Fairfax County, Virginia. All of these schools are required by law to admit students solely on the basis of a competitive exam, with race-conscious selection verboten. This process has recently produced a student population that is overwhelmingly Asian, with a miniscule number of Blacks and Hispanics. Is there any indication that the students at these schools learn less or otherwise suffer academically in palpable and demonstrable ways compared to those who attend schools with a greater demographic range of students? That is the type of question that the courts should be asking. In general, the burden should be on the universities seeking to defend their affirmative-action practices to show with specificity whether and how a more varied demographic profile advances pedagogical effectiveness.

II. Affirmative Action in the Employment Context

The discussion so far has focused chiefly on affirmative action in the educational context, which is an area that has commanded outsized attention from the courts and legal commentators. What about affirmative action in the workplace? Recent events may prompt renewed interest in that topic. National soul-searching in the wake of the death of George Floyd in police hands has spawned a raft of pledges by companies, firms, corporations, foundations, and other “woke” organizations to increase the numbers of underrepresented minorities in their staff ranks, with some even promising to achieve percentage targets and goals reminiscent of job quotas. The centerpiece of the “antiracist” initiatives undertaken by this growing list is a commitment to creating a more diverse workplace. Although not expressly disavowing remediation, public pronouncements have repeatedly emphasized the prime importance of enhancing workplace “diversity, equity, and inclusion” to reflect the profile of groups in society as a whole, and especially to increase Blacks’ presence in the full array of jobs from top to bottom.

The shift from remediation to diversity in the rhetoric of workplace affirmative action, which recapitulates what has occurred in education, can be understood as proceeding from similar real-world conditions, disappointments, and failures. The “rightful position” measure of racial justice proceeds from the expectation that the temporary use of race preferences will eventually enable Blacks to compete effectively and to qualify, without a race-conscious boost, for the range of jobs and occupational positions in proportion to their numbers. As in the education sphere, that employment goal has so far proved elusive. Decades after the enactment the Civil Rights Act, and in spite of a plethora of policies, programs, and initiatives across an array of domains, race-based preferences are still necessary in order to maintain a significant Black presence in many workplace positions, and especially in the most demanding, remunerative, and skill-intensive. Given the profile of qualifications of Blacks as compared to other groups in society, there is no indication that “equity,” as it has now come to be designated (which means equal outcomes), can be achieved without continuing race-conscious interventions and every reason to believe these will be needed indefinitely.

The emphasis on diversity can be seen as an adjustment to this reality. As in the case of education, embracing diversity as the principal rationale for race preferences in employment does not entail the expectation that race-conscious personnel practices will be or can be phased out in the foreseeable future. The workplace is facing “affirmative action forever.”

III. The Court Should Not Allow the Goal of Increasing “Diversity” to Justify Affirmative Action in the Workplace

Renewed efforts to increase racial diversity in employment to the point of achieving proportional representation and “racial equity” raise important legal and practical questions. As Melvin Urofsky notes, the Supreme Court has declined to forbid voluntary, private race-conscious affirmative action programs under Title VII, despite explicit language in the statute that would seem to place them off-limits in many cases, and despite the Court’s own repeated, albeit erratic, endorsement of the need for narrow tailoring and proof of specific infractions under longstanding remedial conventions and doctrines. In United Steelworkers of America v. Weber (1979), as Urofsky explains, Justice William Brennan’s majority opinion “somehow managed to find that the explicit wording of Title VII prohibiting racial discrimination did not foreclose [a] private race-conscious affirmative action plan[ ]” so long as the plan was “transitional in nature . . . designed to correct statistical imbalances . . . and allowed flexibility in hiring non-minorities.” The Court did not justify its permission in that case on specific findings of past discrimination by the employer or union that implemented the plan. Rather, it relied on the generalized remedial goal of “eliminat[ing] present and future discrimination” as well as “wip[ing] out the burden of past discrimination.” Because that objective was within the “spirit of the authors of the Civil Rights Act” even if contrary to its precise terms, the Court permitted the race-conscious initiative at issue in that case to stand.

The Supreme Court has never expressly repudiated or overruled Weber, but it is unclear how the Court would apply it today, especially in light of its recent embrace of a strict textualist reading of Title VII in Bostock v. Clayton County (2020). Based on this development, the Court could choose to invoke the colorblind language of Title VII or the statute’s disavowal of a numerical balancing requirement to severely curtail Weber, perhaps by limiting race-based hiring to a corrective for specific instances of proven past or present discrimination. But even if the Supreme Court declines to take that course, it is unclear whether the degree of race-consciousness that employers would need to deploy in many cases to achieve racial “equity” would satisfy the caveats and limitations in Weber, including the rejection of quotas and rigid numerical goals, as well as the requirement, still alive and well, that affirmative-action programs be transitory in duration.

One important and underappreciated fact that is central to the fate of the aggressive “racial equity” measures many employers have promised is that the Supreme Court has never expressly recognized diversity as a legitimate, let alone compelling, justification for race-conscious decision-making in the employment context. In fact, education is the only sphere in which the Supreme Court has expressly acknowledged any legitimate interest in maintaining diversity.

A key question is thus whether the courts would, and should, accept the goal of enhancing workplace diversity as valid basis for race-conscious personnel decisions. For many reasons, the blanket permission to advance diversity that the Supreme Court has granted to higher education, whether defensible or not, should not be extended to the workplace. Specifically, the courts should refuse to assume that diversity is desirable enough as a general matter to justify race preferences in hiring and promotion. Rather, race-conscious decisions should be permitted only in particular instances where an employer can specifically demonstrate that creating a more diversified workforce than would otherwise result without the deliberate use of race preferences generates net concrete benefits for the enterprise overall in light of its central mission and purpose. It is far from clear a priori how commonly such net benefits would result or could be shown. An honest assessment may sometimes, and maybe often, reveal no identifiable, tangible, or measurably positive payoffs. Or the downsides of pursuing something like proportional group representation in the workplace will outweigh the upsides.

The main reason that the Supreme Court’s educational affirmative-action jurisprudence should not control in the workplace is that the two settings are incomparable and serve entirely different purposes. Schools are sites of teaching, learning, developing human capital, and preparing young people for constructive citizenship. The “expert” consensus, upon which the courts have heavily relied, is that exposing students to people from a variety of ethnic and racial backgrounds advances these goals, with the benefits sufficiently substantial and important to justify race-conscious selection. Moreover, the relatively narrow and well-defined set of objectives that institutions of higher education share make it reasonable to assume that a diverse student body will have similar positive effects on the educational experience across the board. (Curiously, though, the Supreme Court has not extended this assumption to K–12 education.) It therefore makes sense for the courts to adopt a general rule for race-conscious efforts in the educational sphere.

But employment is fundamentally different from education. Quite simply, the purpose of the workplace is not pedagogical. Rather, employees are hired and paid to do a job, deliver a service, produce a product, and complete specified tasks. The ordinary expectation is that their activities will contribute to the employing entity’s profitability or at least to preserving its solvency. This requires the efficient and effective operation of the enterprise at issue, and workers are expected to contribute to that state of affairs. Additionally, employing entities are much more variable than educational institutions on dimensions that bear on whether a diverse workforce and the steps needed to produce and maintain it create a net positive or negative effect. Although employing organizations share the goal of economic viability, they vary dramatically in function, purpose, size, type, and mode of operation. They also present their staff with a spectrum of job demands and employment situations, ranging from complex, intricate teamwork to solitary, self-directed production. Given these realities, it is far from obvious that a diverse set of workers can be counted on to best serve the objectives of each and every employer across the entire economy, regardless of the organization, firm, business, or activity at issue, or the attributes, availability, and responsibilities of potential workers.

Accordingly, the courts should not assume that achieving workplace diversity is a “compelling interest” that always justifies a departure from race-neutral principles. Nor should the judicial acceptance of demographic diversity as a compelling interest for education automatically carry over into the employment sphere. Rather, hiring entities and managers should be required to justify race-conscious practices for diversity purposes on a case-by-case basis by demonstrating the concrete benefits of diversifying workforce composition in their specific operational settings using accepted, well-defined, quantitative metrics like productivity, profits, quality services, and growth, or other appropriate and precise metrics. Certainly the courts should not simply defer to employers’ assertions that a more diverse workforce actually delivers favorable outcomes without clear evidence of that result.

The employer’s burden will not be easy to carry. It is today widely assumed that enhancing workforce diversity is an unalloyed positive. But despite all the feel-good platitudes extolling the virtues of racial, ethnic, (and gender) mixing in the workplace and repeated invocations of the mantra that “diversity is our strength,” the advantages of creating a more racially and ethnically varied staff, and especially of increasing the number of workers from underrepresented groups than would otherwise result from colorblind hiring practices, are speculative and unproven. The social science on the question is sparse, spotty, and equivocal, and the results decidedly mixed. Given the paucity and type of evidence, it is just as plausible to assume that hiring individuals from similar backgrounds is a better practice, or that workplace uniformity operates more effectively in many settings. Historical examples of decidedly undiverse teams producing outstanding results are not hard to find. The Apollo 11 moon mission was run mostly by White guys with buzz cuts. They put a man on the moon. Would a team with significantly more women or minorities have done a better job? The staff at Bletchley Park who unscrambled the German Enigma machine and cracked the Nazi secret war code consisted mostly of young, male, well-educated, Caucasian British citizens.2 Their successful efforts proved crucial to an Allied victory in World War II. The highly lucrative Belgian diamond trade has for centuries been almost entirely run by a small group of Orthodox Jewish merchants based in Antwerp. None of these examples—and there are many more—rules out the possibility that more diverse teams would sometimes do a better job. But whether, when, and under what circumstances is ultimately an empirical question. A priori generalizations are baseless, and any determinations on the question must proceed piecemeal. Moreover, any rigorous assessments must take into account that, in our increasingly racially and ethnically mixed country, some degree of diversity will already spontaneously exist in many jobs and workplaces without race preferences, even if not strictly proportional to all population groups. This means that the supposed benefits of the enhanced diversity traceable to such preferences will, in many cases, be merely incremental.

Also essential to evaluating the desirability of diversification efforts is a substantial and solid body of evidence, accumulated over decades, that steps taken to achieve greater racial balancing in the workplace can carry costs that result from the hiring and promotion of less competent employees. Studies by industrial and organizational psychologists have long revealed that qualifications, skills, experience, interests, abilities, and educational credentials vary significantly across racial and ethnic groups in American society, with Blacks and, to a lesser extent, Hispanics lagging on average behind Whites and Asian Americans on parameters that predict job performance. This means that increasing the presence of Blacks and other underrepresented minorities virtually always requires accepting lower hiring standards and relaxing well-established, meritocratic selection criteria. Because many common personnel screens employers have adopted have been shown to predict productivity and performance, altering them can result in a less capable workforce that can impose costs on firms and organizations. Among the industrial experts who study workplace productivity, this pattern is known as the validity-diversity trade-off. The data show also that negative effects become more pronounced as jobs become more selective, competitive, and demanding of high-level skills, because the paucity of workers from less qualified groups at those levels becomes more pronounced.

These documented realities are, and should be, pertinent to the legal bona fides of race-conscious employment initiatives. As a general rule, companies pledged to pursue racial “equity” either downplay or ignore costs to the enterprise associated with diversity efforts and many would bristle at the suggestion, or at least at the open acknowledgment, that any trade-offs exist between hiring greater numbers of underrepresented minorities and an employer’s effective operation and organizational interests. The trade-offs, however, are real. Although the balance of costs and benefits will vary somewhat across different occupations and economic sectors, present racial and ethnic differences in educational achievement, qualifications, and skills mean that negative effects will exist, and especially for highly selective and sophisticated positions. Courts charged with deciding whether diversity in employment serves a “compelling” interest or any legitimate interest at all should not allow employers to sidestep the possibility of these effects. They should force employers to account for both downsides and upsides, costs as well as benefits, of the race-conscious measures they adopt. More specifically, any legal assessment should consider how race-conscious organizational practices affect merit-based hiring, job-related qualifications demanded for particular positions, and the changes in customary criteria for staffing and hiring. A critical and searching look at the impact of these parameters on the employing organization should be an essential part of any inquiry.

To be sure, affirmative action in the educational setting likewise carries costs, which are routinely minimized or simply denied. Competitive universities must ordinarily relax their customary academic standards, at least for some students, to achieve the diversity they seek. The consequences of that adjustment, however, are much debated. Whether universities can accomplish their central mission despite the presence of some groups of students who are less academically proficient is a complex question that admits of no straightforward answer. In contrast, the use of race-conscious personnel methods for the purpose of increasing workplace diversity is a far simpler matter. Defending that practice would appear difficult, if not impossible, if it fails to advance legitimate business interests or entails a sacrifice of firm productivity, efficiency, or effectiveness. Absent concrete and demonstrable benefits, a firm’s desire to socially engineer a workplace that “looks like America” for its own sake should not count as an acceptable reason to deviate from the colorblind mandate expressly written into the law. Likewise, judges should not uncritically accept the oft-heard assertion that increasing workplace diversity enhances an organization’s ability to serve its minority clients more effectively. For instance, Black and other minority health care workers are claimed to generate superior outcomes for patients from underserved groups. These statements are easy to make but hard to prove, and their validity should not be assumed. Yet another reason employers give for pursuing diversity is to cater to customers or clients who prefer to do business with companies that employ a demographically varied workforce. Courts have traditionally rejected customer preference as grounds for departing from race neutrality, and there is a long history of minority exclusion on that basis. They should likewise be reluctant to permit employers to justify affirmative action from similar motives. That such demands might be made for idealistic reasons or based on political convictions should carry no weight. Pursuing diversity for its own sake or because clients, managers, or other important and influential people regard it as appealing, desirable, or “the right thing to do,” cannot be allowed to overcome the explicit legal protections against discrimination written into Title VII. In sum, it should be incumbent on organizations that adopt race-conscious methods to show that their hiring practices actually advance their core mission and legitimate business purposes. Other rationales should not suffice.

Conclusion

There are at least two potential impediments to the courts taking a harder line on race preferences in the workplace than for education. First, the prohibition on making employment decisions “because of” race or other protected categories in Title VII, which can ground complaints of employers’ unlawful disparate treatment, has also given rise to the doctrine of disparate impact, which imposes liability for employment practices that produce deviations from proportional group representation without an affirmative demonstration of “business necessity.” An employer faced with making that showing has an incentive to use race-conscious methods (that is, to act “because of” race) to achieve proportional representation, thus escaping the presumption of liability. Because the disparate-treatment and disparate-impact doctrines potentially subject employers to conflicting demands, allowing employers to cite the goal of diversity to justify race-conscious selection would enable the courts to ease the tensions between the two. The temptation to grant that permission should be resisted. A better and more realistic course would be to curtail disparate-impact liability or abolish it altogether. The latter would require congressional action in light of the 1991 Civil Rights Act, which validates the disparate-impact discrimination doctrine articulated in Griggs v. Duke Power (1971). Even without any significant change in the positive law, however, the courts have considerable leeway to revise judicially crafted aspects of the doctrine by adopting more flexible and less stringent standards for disparate-impact liability. As I have argued elsewhere, the courts should abandon the unreasonable expectation that all groups will be represented proportionately throughout the workforce and instead should rely more heavily on data showing the actual profile of ability, talents, interests, and qualifications for different groups. The disparate-impact doctrine should be modified to negate the presumption of liability for the broad range of numerical imbalances that are to be expected in light of these group differences.

Another possibility is that employers who face challenges to overtly race-conscious efforts to hire more underrepresented workers could revert to defending their practices as a remedy for past societal discrimination, which is a rationale that the Supreme Court has sometimes accepted, albeit implicitly, as a basis for voluntary affirmative-action programs such as the one at issue in Weber. Although the courts have mostly disfavored vague and open-ended invocations of generalized discrimination as the basis for race-conscious initiatives, that rationale has not been definitively repudiated. The courts could choose to breathe new life into affirmative action as a corrective for “societal discrimination” by invoking the now popular and pervasive parlance of “systemic” and “structural” racism. Reviving and broadening the remedial project, which lies closer to the core of the civil-rights laws’ purposes than the pursuit of diversity, is a doctrinally tempting way to sidestep the empirical weaknesses of the diversity justification in the employment context. But the courts should firmly reject that ploy, however fashionable at the moment, as an unwarranted and ungrounded end run around longstanding principles of remedial fairness. In contrast to claims of specific and defined instances of discrimination, allegations based on “systemic” or “structural” racism make use of imprecise, unsubstantiated, and protean categories that are subject to ready manipulation for partisan purposes. Such concepts tend to corrode impartial meritocratic principles and can be deployed indefinitely to the disadvantage of social groups, such as White males, that become disfavored or targeted by politically powerful factions. If anything, the Supreme Court should use any challenges to aggressive workplace initiatives grounded in the rhetoric of “structural racism” as opportunities to narrow rather than expand the reach of Weber, which not only flies in the face of the express language of Title VII, but flouts longstanding requirements of proof of actual legal violations and specific findings of liability before remedial measures can be implemented under Anglo-American law.

Whether courts will be confronted with any of these issues depends critically on whether and to what extent the newly articulated and widespread promises to pursue workplace “equity” are actually kept, and whether and what kind of legal challenges are brought to these practices. These issues remain to be resolved in the future.

1See Amy L. Wax, Trust Me, I’m an Expert: Scientific and Legal Expertise in Scalia’s Jurisprudence, in Scalia’s Constitution (Paul E. Peterson & Michael W. McConnell, eds. 2018).
2See generally Hugh Sebag-Montefiore, Enigma: The Battle for the Code (2000) (telling the stories of the men who cracked the Enigma code).

Essay

Diversity

Affirmative Action at a Crossroads

Online

Affirmative-Action Jurisprudence Reflects American Racial Animosity, but Is Also Unhappy in Its Own Special Way

andreazhou2026 — Fri, 30 Oct 2020 20:07:55 +0000

Affirmative-Action Jurisprudence Reflects American Racial Animosity, but Is Also Unhappy in Its Own Special Way

Richard Thompson Ford

Richard Thompson Ford is Professor of Law at Stanford Law School. He is the author of the New York Times notable books The Race Card and Rights Gone Wrong: How Law Corrupts the Struggle for Equality. He is a member of the American Law Institute and serves on the board of the Authors Guild Foundation.

He thanks Taiyee Chien for his editorial assistance and exceptional patience.

andreazhou2026 Fri, 10/30/2020 - 15:07

October 30, 2020

There is really nothing new to say about the distinctive legal and policy issues surrounding affirmative action—one of the most obsessively analyzed and discussed issues in American jurisprudence. Moreover, as racial attitudes and the nature of university admissions have changed, affirmative action matters much less than it once did. What’s still interesting is that the affirmative-action wars reflect larger issues, such as the betrayed promise of the civil-rights legislation and the Fourteenth Amendment guarantee of equal protection as well as the dishonesty, denial, and dysfunction surrounding questions of racial justice more generally. I suspect Americans care about the issue to a much greater degree than it deserves because the debate over affirmative action offers a simplified and lower-stakes reflection of the social turmoil and acrimony surrounding these broader questions. Still, like Tolstoy’s unhappy family, the conversation surrounding affirmative action is miserable in its own, unique way.

I. Anticlassification as a “Principle”

Affirmative action began life as a modest policy designed to ameliorate the effects of generations of overt discrimination. It is impossible to assess or understand the policy without reference to our society’s long and ugly history of racism. But such reference is made difficult by the idea that the Equal Protection Clause of the Fourteenth Amendment—a constitutional provision enacted to remedy the effects of race-based slavery—should prohibit “racial classifications” as an abstract matter, regardless of whether those classifications advance or counteract racial hierarchy. This has ensured that the jurisprudence of equal protection cannot consider the very social circumstances that inspired it and make it necessary. (I incorporate by reference the voluminous literature pointing out the many flaws of the strict “anticlassification” idea of equal protection here.)

The so-called anticlassification “principle” and its associated jurisprudence is arguably—though not obviously—warranted when the use of race in question is the all-too-familiar Jim Crow–style discriminatory policies and practices. This is of course what civil-rights lawyers in the 1950s were attacking when they advanced the idea that the Equal Protection Clause prohibits the state from making race-based distinctions. But given the salience of race in our society, a right to be free from any consideration of race is both impractical and unwise outside such a context. Frankly, no sensible person thinks otherwise: a project designed to truly eliminate racial considerations from public decisions (to say nothing of the decisions of private entities partially funded by the government or engaged in important activities in the market economy) would require a vast regulatory effort well beyond the capacity of the federal courts or the expansive apparatus of the administrative state, and would require a degree of intrusive surveillance and censorship that would certainly violate other constitutional rights.

At any rate, the proscription is applied quite inconsistently even in the contexts in which it might be workable. Consider the use of race in police descriptions of crime suspects. One might deny that this counts as a racial classification because police typically only adopt a description offered by an eyewitness. But police regularly ask about the race of suspects. Moreover, by the same logic one could deny that affirmative action involves a racial classification because universities simply adopt the self-description of applicants. In both cases, the relevant action involves making decisions based on the racial information one gathers—about who to interrogate in the former case, about admissions in the latter.

Another defense of employing race-based suspect descriptions is that using race is the most straightforward—and narrowly tailored—way of furthering the compelling governmental interest in crime prevention. Perhaps, in some contexts it is. But race, to the extent it is a coherent category of human morphology at all, is actually a pretty sloppy proxy for physical description: Rachel Dolezal, the Caucasian woman who famously posed as African American, looked Black enough to fool the Spokane, Washington chapter of the NAACP. Similarly, Kim Kardashian could pass as a Black on a good day, as the many critics of “blackfishing” have pointed out. Meanwhile, countless African Americans have passed as White. Police use race as a very casual shorthand for physical appearance despite the obvious potential for both malicious bias and unintended consequences in that context, where the history of racial prejudice is well established and the stakes can be life or death. They do so because it would be cumbersome and costly to ignore race and consider only more detailed physical descriptions. Almost everyone accepts that this is reason enough. In university admissions, race is also an imperfect proxy—in this case, for an individual who has suffered from racial prejudice or has had racially distinctive experiences. The link between any individual’s physical appearance and his or her race is a good deal more “amorphous”, to borrow Justice Lewis Powell’s terminology from University of California Regents v. Bakke, than the societal discrimination suffered by Black and Latino applicants to selective universities. The difference lies in who suffers and who benefits from these two types of racial classification.

Justice Powell put a pragmatic spin on the anticlassification idea when he opined in Bakke: “disparate constitutional tolerance of . . . [racial] classifications may well serve to exacerbate racial and ethnic antagonisms rather than alleviate them.” Professor Reva Siegel of Yale Law School has helpfully placed Justice Powell’s statement in a broader context of racially conservative jurisprudence taken up most recently by Justice Anthony Kennedy in cases such as Parents Involved in Community Schools v. Seattle School District No. 1 and Ricci v. DeStefano. Siegel identifies in these cases an “anti-balkanization principle.” This is very plausible as an explanation of Supreme Court equal-protection jurisprudence (and this is all Siegel intends it to be—she does not defend it as a normative matter). But although it now represents what passes for moderate on the current Supreme Court, the anti-balkanization idea is strikingly reactionary: it reflects a concern only about the resentment provoked by changes to the racial status quo, not about resentment resulting from its perpetuation.

Hence, the Supreme Court’s affirmative-action jurisprudence condemns unambiguously antiracist policy unless it is narrowly tailored to serve a compelling governmental interest and then, beginning in Bakke, defines the acceptable interests to exclude the one most consistent with the purposes of the Reconstruction amendments: remedying widespread racial discrimination. Although this goal was expressly rejected by Justice Powell as unacceptably “amorphous,” even President Richard Nixon—not a man known for his racially progressive views—understood there was an urgent need to avoid perpetuating and replicating the worst discriminatory practices of what was for generations an avowedly racist society. The most one can say for the Supreme Court is that it was almost—through not quite—President Nixon’s equal: Justice Powell rescued antiracist policy from the peril he had just created for it with the kludgy workaround that affirmative action would be permissible if it furthered the pedagogical objective of “diversity.”

II. Diversity

Diversity is not a terrible rationale for affirmative action. In some contexts, it is a pretty good one (e.g., sociology, education, law); in others, somewhat less so (e.g., conceptual physics). But in all contexts, it implicitly relies on the stronger, denied rationale of remedying societal discrimination. “Diversity” seems designed to let universities make timid steps to address racial injustice without ever having to talk about racism. For example, in Grutter v. Bollinger, while defending the idea that diversity and only diversity could justify affirmative action, Justice Sandra Day O’Connor couldn’t avoid obliquely referring to societal racism, writing, “By virtue of our Nation’s struggle with racial inequality, [underrepresented minority] students are both likely to have experiences of particular importance to the Law School’s mission, and less likely to be admitted in meaningful numbers on criteria that ignore those experiences.” Let us unpack that and foreground the part Justice O’Connor glosses over: Black and Latino students are less likely to be admitted to selective universities because of our nation’s struggle with racial inequality. This sounds an awful lot like an acknowledgment that societal discrimination is relevant to university admissions because it explains why formally race-neutral admissions criteria do not accurately measure the potential of underrepresented racial minority applicants. Correcting for this widespread and well-understood societal discrimination is enough to justify affirmative action, and a stronger and more widely applicable rationale than diversity.

Embrace of “diversity” has kept affirmative action alive, but at a great cost. The diversity rationale has required advocates of affirmative action to emphasize relatively weak arguments while only alluding to the stronger ones. Far worse, it has warped and distorted the national discourse about racial justice in other areas, such that “diversity” is now a lazy slogan for almost any effort at social justice or inclusion. The urgent task of challenging patriarchy and misogyny becomes instead a matter of gender diversity; the gross maldistribution of social resources, polarization of wealth and income, and exploitation of working people is transformed into an issue of inadequate “class diversity”; completing the long-stymied task of post-slavery Reconstruction is reduced to a program of racial diversity. Diversity talk has undermined analytical precision and sapped energy from social movements, turning issues of justice into questions of technocratic personnel management. And it has so muddied the waters that almost any self-defined group—subordinate or superordinate, subjugated or empowered, subaltern or hegemonic—can seek a tactical rhetorical advantage in the vague ideal of diversity. It is only because of the influence of “diversity” rhetoric that it seems sensible to compare the underrepresentation of the descendants of slaves and the victims of Jim Crow to the underrepresentation of evangelical Christians or people with conservative political leanings.

III. Fairness and Individual Merit

A standard reason for an individual right against racial classifications is that any consideration of race is unfair to individuals. But, unlike in the Jim Crow context, any individual injury involved is offset by the social benefit of correcting for and reversing generations of racial injustice. Arguably affirmative action prioritizes social equity over individual fairness, but it bears noting that many policies put collective interests over fairness to individuals and that some do so in a racially targeted manner. For example, aggressive policing, informed by race-based suspect descriptions and racial profiling, targets countless innocent individuals—disproportionately Black and Latino—for intrusive and degrading police surveillance and intimidation in order to reduce overall crime rates for the benefit of society at large.

Moreover, again unlike the Jim Crow context, much of the individual injustice in affirmative action is speculative or simply manufactured. For instance, it is rarely clear than any given applicant is disadvantaged by affirmative action. The injury suffered by the university affirmative-action plaintiffs after Alan Bakke was questionable: At most, these plaintiffs can claim their chances of admission were somewhat reduced because a small number of other people enjoyed a race-based preference in a zero-sum competition. Many most likely would not have been admitted regardless of affirmative action, either because of their objective credentials and or because of other factors that are not race-based. In the holistic admissions that selective schools using affirmative action are legally required to employ post-Bakke, objective considerations are only one part of a larger assessment. After Bakke, the effect of affirmative action on the prospects of any given applicant who does not benefit from it is, one might say, amorphous.

Underlying the notion that affirmative action is unfair to individuals is the misconception that scalable credentials—grades and standardized test scores—are transparent measures of merit, even of virtue, such that individuals have a moral entitlement to be judged according to them and only them. This idea isn’t directly relevant to the legal controversy, which concerns only whether or not the university has considered race and its reasons for doing so, but it is at the very center of the political controversy that has kept this issue alive. There is no doubt that these scalable measures are useful as a means of making broad distinctions between applicants. But there is little justification for employing them to make fine distinctions among highly qualified applicants, which is precisely what most selective schools do. Grades and test scores get this undue weight because of their importance in the rankings of academic institutions, U.S. News and World Report’s yearly rankings in particular. There is fierce competition among elite schools for the highest rankings because high rank offers bragging rights, reinforces elite status, and is self-perpetuating: because most applicants don’t have the information or ability to distinguish between universities and colleges based on educational quality, many select based on rank. Of the many factors that contribute to a school’s rank, one that is largely in the immediate control of the school itself is the average standardized test score of its student body, so selective schools select for students with the highest grades and test scores in order to boost their rank. This provides an additional incentive for the universities to overuse standardized test scores in their admissions decisions, and to give small differences in scores more weight than their predictive value warrants. As a consequence, increasingly, academic merit is considered to be synonymous with standardized test scores and grades.

This unjustified reliance on grades and standardized test scores is a textbook example of a practice with a racially discriminatory disparate impact. A similar practice might be unlawful in the employment context and arguably, affirmative action is simply a voluntary effort to counterbalance this practice. Unsurprisingly then, the vulnerability of affirmative action has fueled an antiracist attack on standardized testing generally. For decades, efforts to eliminate or even reduce reliance on standardized testing seemed quixotic, but recently a growing number of universities have relaxed or even eliminated requirements for standardized testing. The breakdown of testing during the COVID-19 crisis has forced many more universities to follow suit. Indeed, in response to a disability-discrimination challenge, a federal court has ordered that the entire University of California system ignore standardized test scores in the upcoming application year and in response, the UC system has decided to suspend use of standardized testing until, at the earliest, 2024. With standardized testing already on the ropes, were affirmative action to be invalidated, many universities forced to choose between their current use of standardized testing and racial diversity are likely to choose the latter.

In addition, a growing critique of technocratic meritocracy on both the right and left of the political spectrum adds another reason to reduce emphasis on standardized testing. For conservatives, competitive meritocracy sends the insulting message that those who are not on top, in elite universities and later in prestigious jobs in a small number of large metropolitan areas, deserve both their subordinate social status and the contempt of those who have outperformed them. Meanwhile, increasingly campus progressives see careerist meritocracy as an ideology of exploitation. Competitive meritocracy demands that parents prime their children for alienation and exploitation, sacrificing the innocence of childhood for the rigors of work in preparation for a competitive academic market and ultimately, service in the market economy. Scalable numerical indicia of merit rank students as commodities, making them easily comparable—one might say fungible—for potential employers and creating a permanent sense of insecurity among them so as to encourage self-exploitation. Students engaged in such hypercompetitive pre-career training effectively work for free—indeed they pay for the privilege—and find themselves in debt at the end of the process, desperate and more readily exploitable. Higher education, the great engine of meritocracy, facilitates a twenty-first century form of indentured servitude. No surprise then, that a mental illness epidemic currently plagues both high school and higher education—a consequence of the relentless pressure of today’s academic competition and the emptiness of a life it defines. Selective universities bear a great deal of responsibility for this mental health crisis and are now suffering its effects as they confront growing numbers of students with serious emotional disorders demanding costly and cumbersome accommodations. For both self-serving and humanitarian reasons, the modern university is rethinking its role in competitive meritocracy (and, one hopes, rediscovering the ancient virtues of humanistic education and the pursuit of knowledge for its own sake).

The Students for Fair Admissions v. Harvard case, raising the claim that Harvard discriminates against Asian-American applicants, is best understood in light of the limitations of standardized test scores as admissions criteria. If grades and tests scores were the only consideration in admissions, the number of Asian Americans admitted to Harvard would be much higher than it is. But the data revealed during the Harvard litigation suggests that race-conscious affirmative action did not greatly disadvantage Asian-American applicants; instead, other considerations such as legacy status, “development” goals (family donations to the university), subjective considerations such as well-roundedness, likability, intellectual curiosity, and leadership skills, and preferences for applicants from underrepresented geographic regions and for athletes all heavily disfavored Asian-American applicants. But many of these considerations are legitimate elements of qualitative evaluation; and, in any event, none are unlawful.

A challenge to race-based affirmative action was the only avenue open to the Asian-American students aggrieved by these other university admissions priorities. But because affirmative action is not the biggest problem for Asian-American applicants, eliminating it won’t help them much. In fact, it may well increase the likelihood that selective universities will reduce their reliance on scalable indicia of merit generally and rely more on the type of holistic assessment that gives greater weight to culturally specific traits and vaguely defined “diverse” life experiences. The greatest irony of the unhappy saga of affirmative-action litigation is that while it has undermined honest and transparent efforts to correct well-known social injustices, the compromise of “diversity”—perhaps stripped of any overt racial content—will certainly survive, regardless of what the courts do.

The lawyers and conservative political activists backing the relentless challenges to affirmative action must know this, even if some of the named plaintiffs in their lawsuits do not. For these lawyers and activists, the salient injury seems to be less that affirmative action prevents some unidentified and unidentifiable deserving applicants from gaining admission, but that it ensures admission for a group of conspicuously identifiable and—in the view of the critics—unsuitable applicants. It is hard to not to see many complaints of about affirmative action as thinly veiled objections to the presence of significant numbers of Black and Latino students in selective universities, reflecting a characteristic American antipathy toward uppity dark-skinned people who attempt to rise above their station.

Conclusion

The practical stakes of any future affirmative-action litigation are relatively low. Affirmative action plays a modest role in university admissions today, and there is a growing likelihood that universities will radically change admissions practices in the coming years, reducing reliance on standardized testing, the disparate racial impact it entails, and hence the need for affirmative action. The anti-affirmative-action lawsuits reflect some sincere and valid misgivings about an admissions process defined by secrecy, misdirection, elitism, and hypercompetitive quasi-meritocracy. But none of these legitimate concerns jibes with the legal theory underlying the lawsuits, which is limited to benign race conscious decision-making. And none of the specific objections to race-conscious affirmative action is worthy of respect as a moral or ethical matter. Those objections are colorable legal claims only because of a deeply misguided, confused and often dishonest equal-protection jurisprudence. Worse, much of the opposition to affirmative action is motivated by a genteel version of the White racial resentment that the Trump era has revealed to be a significant and malignant force in American public life. Almost everyone involved would be better off without yet another round of divisive, insulting, and likely pointless litigation on the issue. But the affirmative-action controversy, while unhappy in its own way, is also a symptom of a more general dysfunction in constitutional jurisprudence and national public culture, and that is what keeps it evergreen. And sadly, the greater good has never stopped a resentful family member from picking a new fight over an old grudge.

Essay

Antiracism

Affirmative Action at a Crossroads

Online

Affirmative Action, Transparency, and the SFFA v. Harvard Case

andreazhou2026 — Fri, 30 Oct 2020 19:06:35 +0000

Affirmative Action, Transparency, and the SFFA v. Harvard Case

Peter S. Arcidiacono

Peter Arcidiacono is a Professor of Economics at Duke University, a Research Associate of the NBER, an IZA Research Fellow, and a fellow of the Econometric Society.

Josh Kinsler

Josh Kinsler is an Associate Professor of Economics at the University of Georgia.

Tyler Ransom

Tyler Ransom is an Assistant Professor of Economics at the University of Oklahoma and an IZA Research Affiliate.

The views expressed and conclusions reached in this Essay are those of the authors; they do not purport to reflect the views of SFFA. To the extent this Essay relies on records from SFFA v. Harvard, it relies solely on the public records from the case.

andreazhou2026 Fri, 10/30/2020 - 14:06

October 30, 2020

Affirmative action in college admissions for underrepresented minorities provokes strong emotions. These strong emotions are guided by two competing principles. One of these principles is the desire to treat individuals as individuals. For many, it is galling that race plays an explicit role in college admissions decisions. And in an ideal world it would not. On the other side is the fact that we do not live in an ideal world, but rather a world that has treated some minority groups—and especially Blacks—appallingly. Given the current reckoning over the mistreatment of Blacks, there is a strong desire to set things right, or to at least move in that direction.

For those with strong positions on either side of the affirmative-action debate, there is no need to study the effects of affirmative-action policies. For some, the effects are irrelevant: one’s race should never play a role in admissions, and race-based preferences should be outlawed. For others, any outcome that deviates from proportional representation is by definition unjust given the lack of genetic differences across races. All that is needed for this group is for the racial shares among matriculants to line up with their respective shares in the population.

While affirmative action is often presented as a binary issue, some may support race-based preferences at certain levels but not at other levels. For this group—at least until Students for Fair Admissions v. Harvard—it would be nearly impossible to form a position on whether current admissions practices go too far or not far enough. The reason for this is simple: universities tightly guard their data, and so actual knowledge of the effects, or even the extent, of race-based preferences is infeasible.

In this Essay we make three points. First, constructing affirmative-action programs requires nuance. Conditional on supporting some form of affirmative action, the optimal level of affirmative action will depend on the weight one places on things like representation of minorities at top schools, representation of minorities in particular majors, the value of cross-racial interaction, and the benefits to underrepresented minorities themselves. And the optimal level will also depend on what universities are willing to reveal to their students. As we will illustrate, the utility benefits that underrepresented minorities receive could be enhanced by universities being up-front about how students’ academic backgrounds translate into educational outcomes at their schools.

Possible reasons universities are not up-front with students include perverse competitive incentives but also the legal environment in which affirmative action operates. And this leads to our second point: the Supreme Court’s decisions in two milestone affirmative-action cases have pushed universities to be less transparent. By ruling that using race in a points system is not allowed but that using race holistically is, the Court has given universities an incentive to hide what they are doing. As we will show, holistic admissions systems can be expressed as an implicit formula where one of the components is not observed. A natural consequence of this is that a points-based system can appear holistic by simply not reporting one of the components and not making the formula public.

And much could be learned from universities making their admissions process more transparent. Our third point is that, by pulling back the veil of how Harvard’s admissions operates, the SFFA v. Harvard case showed how little we actually know about how admissions works. For example, it was understood that underrepresented minorities as well as legacies and athletes receive preferences in the admissions process. But the evidence that was uncovered shows that the strength of these preferences is striking.

I. Optimal Affirmative Action

We begin by making the case that nuance is needed when considering optimal affirmative action. We discuss the subtleties around three questions related to affirmative action: (1) when and how does academic background matter?; (2) what do students know when making their college decisions?; and (3) where are the diversity benefits? These are by no means all the factors that should be taken into account when evaluating affirmative-action policies. But these three questions illustrate the importance of nuance in the affirmative-action debate.

A. When and How Does Academic Background Matter?

More selective colleges tend to have more resources, and more resources generally produce better outcomes. Graduation rates at the most selective schools tend to be higher than at less selective schools even after accounting for selection. But it is not clear that increasing college quality always leads to better outcomes as the match between the school and the student may be important.

To illustrate, the pace and assumed knowledge of those taking courses at an elite school may be different than those at lower ranked institutions. This is particularly relevant for those in majors that build on previous coursework, such as in STEM fields where the monetary returns to college are especially high. And here the level of academic preparation does appear to matter. Arcidiacono, Aucejo, and Spenner (2012) document that, at Duke University, over 54 percent of Black men who express an initial interest in STEM or economics end up choosing a major in humanities or one of the other social sciences; the similar share for White men was less than 8 percent. The authors show that these large racial differences disappear once one accounts for differences in academic preparation.

These results are further confirmed by Arcidiacono, Aucejo, and Hotz (2016), who studied the University of California system. Attending a more selective UC school generally increases five-year graduation rates. But in the sciences, the match between the school and the student is important. Those with the strongest academic backgrounds are more likely to graduate in the sciences at the top schools but this is not true for those with relatively weaker academic backgrounds. And the effects here can be substantial: the authors estimate that underrepresented minority students (URMs) who attend Berkeley and are interested in the sciences would see their probability of graduating in the sciences in five years increase by 7.2 percentage points (off a base of 27.5 percent) had they instead attended UC Riverside. But this is for all URMs. The academically strongest URMs would not see such an increase; the large gains occur for those URMs at Berkeley with relatively weaker academic backgrounds.

While the existing literature comes from a limited number of universities, it is important to note that some affirmative action may still be beneficial for increasing STEM majors. Dillon and Smith (2020) use nationally representative data to show that varying the quality of college that a student attends has little effect on his or her majoring in STEM, on average. A possible explanation is that match effects are important at higher-quality colleges but that at lower levels of college quality, schools are vertically differentiated in terms of student ability. In this case, getting students into Riverside from lower-ranked schools would be beneficial from the perspective of graduating in STEM even if moving them all the way to Berkeley would not.

B. What Do Students Know When Making their College Decisions?

But even if affirmative action at elite institutions results in fewer Black STEM majors and STEM majors pay especially well in the labor market, it does not follow that affirmative action makes Black students worse off. Indeed, if students are as informed as universities about how their pre-college skills translate into success in different school-major combinations, then affirmative action can only be welfare-enhancing for its beneficiaries. The reasoning is simple. When a student is fully informed, expanding the choice set can only increase one’s welfare. Consider a student who, without affirmative action, would choose college A. If, under affirmative action, college B is added to the choice set, the individual would only choose college B if their payoff was higher than choosing college A.

As shown by Arcidiacono et al. (2011), this argument breaks down when students are not fully informed and when the university has private information about how well the student is likely to do at their school. In this case, adding an option can decrease welfare as the student may not recognize that, in fact, college B is a worse choice for them than college A. The authors show that, at the school they study, the university does have private information about how well students can expect to perform in the classroom, thereby satisfying a necessary (though certainly not sufficient) condition for mismatch.

This information asymmetry would be easily resolved if universities provided information to students about what their likely educational outcomes would be given what universities know about the student. Returning to the example from Duke, if Black students were informed about, for example, their probability of success in STEM fields and still chose to come to Duke, then there would be little scope for affirmative action to reduce welfare for its intended beneficiaries.

And here is where we begin to see the costs of opacity. It is our view that universities have a moral imperative to provide students with accurate information about their prospects of success. Examples include basic information such as expected grades conditional on their major, probability of persisting in their intended major, and the probability of dropping out. At each university there are plenty of professors available who could easily assemble this sort of information. This information would be especially useful to those for whom accurate information is harder to obtain. And it is even more important for students whose academic credentials are far from the average of their university so that they can make informed decisions about their schooling choices.

C. Where Are There Diversity Benefits?

The legal rationale for whether race can be taken into account in university admissions, however, is based on the benefits achieved from having a more diverse student body. A more diverse student body can positively impact student experiences not only in college but also later in life. When weighing these benefits, it is important to keep in mind that affirmative action primarily affects where students enroll in college, not whether they enroll at all. Indeed, Arcidiacono, Khan, and Vigdor (2011) show that the most selective schools have on average a greater share of Black students than moderately selective schools: diversity at the top comes at the expense of diversity one tier down.

Why is this relevant? It is well established that increased diversity increases cross-racial interaction. However, there is also strong evidence that similarity in academic background matters for cross-racial interaction. With affirmative action leading to larger within-school racial gaps in academic background, more interaction may be occurring at elite institutions at the expense of even more interaction at less elite institutions. And the evidence is actually quite striking. Using data from the National Longitudinal Survey of Freshmen (NLSF), Arcidiacono, Aucejo, Hussey, and Spenner (2013) show that the share of other-race friends for Blacks is roughly the same in high school as in college. But the high schools Black students attend have a much larger share of Blacks than the colleges they attend so one would have expected Blacks to have more other-race friends in college. Indeed, they show that the share of same-race friends is positively related to the share of same-race representation at the school, which implies that colleges are actually worse at promoting cross-racial friendships than high schools. And part of the explanation is differences in academic background: increasing the SAT scores of Black students raises the share of other-race friends for Blacks; decreasing the SAT scores of White and Asian students increases their share of Black friends.

That similarity in academic background matters for cross-racial friendships is also seen in Carrell, Hoekstra, and West (2019). Using data from the Air Force Academy, they show that White students who are randomly assigned a Black roommate as freshmen are substantially more likely to have a Black roommate in the future. However, this effect is driven entirely by Black roommates in the top two terciles of the high school performance distribution: the authors found no increases for those assigned a Black roommate from the bottom tercile.

More promising are the later-life benefits from diversity, though the evidence is limited. The most compelling evidence comes from the medical profession. In Alsan, Garrick, and Graziani (2019), Black subjects were recruited for free health screenings where they were randomly assigned either a Black or White doctor. The Black and White doctors gave similar prescriptions following the health screenings, but Black subjects were significantly more likely to follow the advice if they were assigned a Black doctor. Hence a diverse set of doctors may be important for health outcomes. Further benefits could also accrue through the types of communities where Black doctors choose to serve.

But here too, it is important to come back to the effects on major choice where mismatch effects may lower the probability of majoring in STEM. To the extent that being a STEM major increases the probability of going to medical school, then increasing diversity at elite undergraduate institutions may come at the cost of a less diverse medical profession. At the same time, if going to a more elite undergraduate school increases the probability of going to medical school, then the effects may go in the other direction.

The evidence cited above emphasizes that studying the effects of affirmative action requires treating the subject with nuance. And doing affirmative action well requires good research on the topic, necessitating that universities make their data available to researchers and their prospective students. Yet, Supreme Court precedent related to affirmative action encourages universities to do precisely the opposite.

II. The University of Michigan Cases and Perverse Incentives

While holistic admissions criteria have been employed at selective universities in the United States for at least the past one hundred years, the Supreme Court decisions in Gratz v. Bollinger and Grutter v. Bollinger further encouraged universities to use them.

The key issue in Gratz was the University of Michigan’s use of race in a points system that determined admission. URM applicants to Michigan’s undergraduate program were automatically awarded twenty points, where one hundred points were needed to gain admission. The Court ruled that this points-based system was unconstitutional on the grounds that “the diversity contributions of applicants cannot be individually assessed” because the “automatic distribution of 20 points has the effect of making ‘the factor of race . . . decisive’ for virtually every minimally qualified underrepresented minority applicant.”

At the same time, the Supreme Court ruled in Grutter that the University of Michigan Law School’s “narrowly tailored use of race in admissions decisions to further a compelling interest in obtaining the educational benefits that flow from a diverse student body” was constitutional. The law school had employed holistic criteria, and the Court held such an approach to be permissible.

The two court cases emphasized that a transparent and formulaic application of minority preferences is unconstitutional. Instead, the Court argued, the use of race needs to be “narrowly tailored” so that the racial preference is not “decisive.”

With no explicit definition of “narrowly tailored,” universities in the United States have obfuscated their admissions criteria as they relate to race. This obfuscation has had the unfortunate consequence of hiding other admissions practices, like favoring legacy applicants or applicants connected to donors. The 2019 college admissions scandal exposed the various ways applicants from well-off families were able to circumvent the admissions process at many elite universities, including by taking advantage of favorable admissions policies for recruited athletes.

In addition to hiding other admission advantages, the use of holistic criteria to support a “narrowly tailored” system encourages the use of other arbitrary criteria like the rating of personal qualities. Documents in SFFA v. Harvard—hereafter, the Harvard case—revealed that, even after comparing applicants on equal grounds, Asian-American applicants were rated as having worse personal qualities, while URM applicants were rated as having better personal qualities. Deposition evidence from the Harvard case revealed that the personal qualities measured by this rating are things like whether the applicant is “a very attractive person to be with and have in your school community and widely respected.” Furthermore, Harvard’s admissions director admitted that the criteria used to produce this rating are “not terribly helpful.”

Finally, the Supreme Court decisions emphasize the importance of racial/ethnic diversity as a worthy goal of educational institutions. However, there is evidence that elite universities may be interested only in diversity reflected in skin color as opposed to lived experiences. For example, Massey et al. (2007) show that first- and second-generation immigrants of African descent make up an outsized share of Black students at selective universities, and especially among Ivy League institutions. They also show that these students are more likely to come from two-parent households and have higher-educated fathers than Blacks who descend from slaves.

Further evidence on this point comes from Paul Tough, who documents a dispute at Cornell University where a Black student group protested the lack of representation of Blacks with more than two generations in the United States.1 These patterns are also reflected in the Harvard case, which shows that, while White and Asian American applicants who are socioeconomically disadvantaged receive an admissions boost, Blacks who are disadvantaged receive no such boost.2

III. Evidence about Affirmative Action from SFFA v. Harvard

The lack of transparency in college admissions has made it difficult to understand the importance of affirmative action in determining admissions outcomes. Gratz outlawed the use of a points system, meaning that universities must now rely on a less transparent approach to implement affirmative action. In this setting, the most straightforward way to determine the impact that race has on admissions is to compare admissions outcomes across applicants of different races who are otherwise observably identical. The richer the admissions data in terms of applicant attributes, the more precise these comparisons across race can be.

However, colleges and universities are reluctant to publicly release their admissions data, and as a result, even the best data sources often lack key applicant details. Estimates of the impact of affirmative action on college admissions are then criticized since they cannot account for all of the relevant factors affecting admissions. As part of the SFFA v. Harvard lawsuit, Harvard was required to release detailed applicant-level data for all applicants to the classes of 2014 through 2019 to two expert witnesses for analysis.

Harvard’s applicant-level data is extensive, capturing information about an applicant’s academic, social, and family background, in addition to the final admissions outcome. (For additional details, see Arcidiacono, Kinsler, and Ransom, 2020.) A unique feature of the data is the availability of Harvard’s own internal rating of each applicant on a host of dimensions, including an academic, extracurricular, personal, and overall rating, among others. Using this detailed data allows estimation of a model of admissions outcomes where the impact of race can be estimated holding fixed hundreds of other applicant attributes. In other words, the model implicitly compares the predicted admissions probability for White and Black applicants who have similar SAT scores, high school GPAs, family backgrounds, intended major, internal Harvard ratings, and many other observed attributes.

The key advantage of using the Harvard admissions data to estimate the scope of affirmative action is the detailed nature of the applicant data. However, when assessing the impact that race has on admissions outcomes, it is imperative not to control for applicant attributes that already embed racial preferences. At least two of Harvard’s internal ratings suffer from this issue: the overall and personal rating. The overall rating is a direct measure of an applicant’s likelihood of admission, and thus incorporates Harvard’s preferences over race and other applicant attributes. The inclusion of the overall rating in an admissions model will thus lead to an understatement of the impact of race in the admissions decision. There is also ample evidence that racial preferences influence the personal rating. As a result, the most reliable admissions model (for the purpose of measuring the extent of racial preferences) should exclude the personal rating.

In addition to excluding certain applicant attributes, attention should also be paid to the sample of data used to estimate the model. For example, applicants of special interest to Harvard—those who are recruited athletes, legacies, applicants on the dean’s list, or children of faculty and staff (ALDC)—receive large preferences in admissions. One could expect racial preferences to work differently among this group of applicants whose predominant characteristic is belonging to one of these special groups. By focusing only on typical applicants, the comparison between similarly situated applicants is more appropriate. Note that 97 percent of Black and Hispanic applicants are typical (non-ALDC) applicants.

Estimating a logistic model of admissions for six Harvard admissions cycles that includes hundreds of applicant attributes shows that affirmative action has a large and statistically significant impact on admissions probabilities for typical applicants. In the absence of affirmative action, the average Black or Hispanic applicant would have admissions probabilities equal to 2.25 percent and 2.29 percent, respectively. While these numbers seem small, the admit rate for typical White applicants is also small at only 5.5 percent. However, with affirmative action in place, the admissions probabilities for the average Black or Hispanic applicant rise to 9.54 percent and 7.14 percent, respectively. Thus, affirmative action quadruples the admissions chances of the average Black applicant and triples the chances for the average Hispanic applicant.

To put the magnitude of affirmative action in context, the admissions bonus associated with being a Black applicant relative to being White is only slightly smaller than the admissions bonus for receiving the highest possible academic rating relative to receiving the median academic rating. The highest academic rating category is reserved for “genuine scholar(s)” with “near-perfect scores and grades” and “evidence of original scholarship.” The median academic rating is given to “very good student(s) with excellent grades and mid-600 to low-700 [SAT] scores.” Only 0.43 percent of all applicants receive the highest academic rating. Thus, belonging to an underrepresented minority group confers nearly the same benefit as being labeled an academic superstar or the equivalent of being among the one hundred academically strongest applicants to Harvard each year.

A standard concern when modeling racial differences in college admissions or other economics outcomes, such as wages or hiring, is that the estimated effect of race is overstated as a result of unobserved applicant characteristics. For example, in the context of Harvard admissions, the large positive impact on admissions associated with being Black may reflect unobserved differences between Black and White applicants. While this concern is somewhat muted since the Harvard data set includes so many applicant attributes, it is impossible to completely incorporate all of the subtle details of an applicant’s file into statistical data. However, it is possible to explore whether Black and Hispanic applicants tend to be positively selected on the observable characteristics associated with admissions, since this might suggest that they are also positively selected on the unobserved determinants of admissions. Our model of Harvard’s admissions decisions reveals the opposite pattern, showing that Black and Hispanic applicants are significantly weaker than White applicants on the other observable factors that predict admissions. Thus, there is little reason to believe that Black and Hispanic applicants have unobserved attributes that make them more attractive than White applicants. On the contrary, if anything, the estimated magnitude of Harvard’s racial preferences is likely to be understated.

IV. SFFA v. Harvard Opened the Black Box

Whether the application of affirmative action observed at Harvard is too weak, too strong, or on target remains an open question. What is indisputable is that SFFA v. Harvard provided an unprecedented glimpse inside the college admissions process. Admissions criteria and decision-making are tightly guarded secrets in higher education, and never before have researchers been able to study admissions outcomes in such great detail. The patterns uncovered at Harvard suggest that there are many other admissions practices in addition to affirmative action that require additional scrutiny.

One such practice is the favored treatment athletes receive in college admissions. Although large state universities tend to dominate the most commercialized college sports, small elite private colleges actually field more varsity teams. For example, the University of Georgia fields nineteen varsity teams, while Williams College, which enrolls less than one-tenth the number of students as the University of Georgia, fields thirty-two varsity teams. Harvard is an extreme example of this, offering a nation-leading forty-two Division I intercollegiate sports teams. In fact, recruited athletes account for 10 percent of the admitted class to Harvard.

The emphasis on athletics at the most prestigious academic institutions in the country seriously distorts the admissions process. In Arcidiacono, Kinsler, and Ransom (2020), we use domestic applicants and admits to Harvard to highlight three specific features of recruited athletes that are worthy of attention. First, admitted athletes are significantly weaker academically than their non-athlete peers. For the Harvard classes of 2014 through 2019, just 25 percent of admitted recruited athletes receive an academic rating in the top two categories as defined by the Harvard admissions office. The corresponding number for non-athlete admits is 81 percent. Second, recruited athlete admits at Harvard are overwhelmingly White and economically advantaged relative to their peers. 69 percent of athlete admits are White, while the White share of all domestic admits is only 45 percent. Finally, 26 percent of recruited athletes who attend Harvard come from families earning more than $500,000 per year, while the corresponding number is only 15 percent among all enrollees.

Recruited athletes are not the only advantaged applicants to receive preferential treatment in university admissions. Our research reveals that applicants whose parents attended Harvard, donate to Harvard, or work at Harvard (LDC applicants) receive large boosts to their admissions chances. LDC applicants are admitted to Harvard at a rate of 34 percent, while for typical applicants (non-LDC and non-athlete) the admit rate is only 5 percent. Similar to recruited athletes, LDC applicants are overwhelmingly White and come from high income families. For example, nearly 70 percent of legacy applicants are White as compared with only 40 percent of typical applicants. Two percent of LDC applicants to Harvard are labeled as disadvantaged by the admissions staff, and yet 13 percent of typical applicants are disadvantaged.

The admissions advantage that athletes and LDC applicants receive is enormous. We estimate that 75 percent of White athlete and LDC admits would have been rejected absent these preferences. While this number suggests significant inequality in access to elite universities, more alarming is the fact that preferences for special applicants have been growing over time. In another paper, we demonstrate that recruited athlete and legacy applicants for the Harvard class of 2000 were four times more likely to be admitted than their non-athlete, non-legacy counterparts. By the class of 2017, recruited athlete and legacy applicants were nine times more likely to be admitted. Despite the growing number of highly competitive non-athlete, non-legacy applicants, Harvard has essentially kept the share of legacies and athletes in its admitted class fixed over time. This implicitly means a growing admissions advantage for these groups.

While athletes and other special applicant groups receive large and growing admissions preferences, there is also evidence that typical Asian-American applicants face a higher admissions bar relative to other typical applicants (non-athlete, non-LDC). Race-based affirmative action necessarily disadvantages Asian-American applicants relative to Black and Hispanic applicants. However, it is also the case that Asian-American applicants are disadvantaged in admissions relative to White applicants. As a group, Asian-American applicants are significantly stronger than White applicants in terms of academic preparation and extracurricular participation, and are also more likely to come from disadvantaged backgrounds. Yet, typical Asian-American applicants are nearly 20 percent less likely to be admitted than observationally equivalent White applicants. Harvard’s explanation for this gap is that typical Asian-American applicants are less well-rounded than their White counterparts, pointing primarily to their lower athletic and personal ratings. Yet, the personal rating itself appears to be a primary channel through which Harvard implements race-based and other demographic preferences.

The finding that typical Asian-American applicants are disadvantaged relative to their White counterparts is relevant for the ongoing debate over affirmative action since it makes clear that race can have a detrimental impact on admissions chances. Harvard’s view, as communicated over a dozen times at trial—including by its expert witness—is that an applicant’s race is never considered a negative factor in admissions. This is a patently absurd statement because college admissions is a zero-sum game: an advantage given to one racial group is necessarily a disadvantage for a different racial group. The fact that race can negatively impact an applicant’s admissions chances does not immediately disqualify using race in admissions since many applicant attributes share this feature. However, there needs to be a compelling case for why one racial group should be favored relative to another.

On this count, the detailed admissions data revealed as part of the Harvard case also provides unique insight. A common rationale for race-based preferences is to promote a diversity of backgrounds and opinions on campus. Diversity comes in many forms, including income, geography, religion and race, to name a few. While universities may pursue diversity across all of these dimensions, it appears that diversity among its Black and Hispanic admitted students is less valuable relative to other racial groups. The data show that disadvantaged White and Asian-American applicants receive large admissions preferences relative to their more advantaged counterparts. However, disadvantaged Black and Hispanic applicants are treated identically to their more advantaged counterparts. This is an odd pattern since there is no reason to believe that the diversity of experiences across income groups among Black and Hispanic applicants is any smaller than for White and Asian-American applicants. Harvard’s use of race, specifically for Black and Hispanic applicants, is instead more consistent with race simply being a plus factor that is incorporated regardless of context. If this is how race is going to be utilized in a holistic process, a more transparent approach would be to simply assign points based on race.

Affirmative action has been a primary focus of policy and litigation involving college admissions. Numerous states have banned the use of race in admissions (Washington, Florida, Michigan, Arizona, etc.), while other states have implemented alternative policies, such as percent plans (Texas and California). Yet, the admissions data from Harvard reveal other practices that are worthy of our attention. Admissions preferences for athletes, legacies, and donors seem at odds with a social system built on the idea of meritocracy. Moreover, penalizing Asian-American applicants because of their race is discriminatory and inconsistent with the notion of diversity.

In the conclusion of the court’s ruling in the Harvard case, the judge declared that Harvard employs “a very fine admissions program.” The evidence cited above indicates that Harvard’s admissions process is littered with special interests that would be condemned in most other settings (e.g. firm hiring). Rather than holding up Harvard’s process as a beacon for other schools, we should be working to eliminate these special interests and return to a more transparent and less arbitrary system.

One step in this direction has come very recently. In 2020, the U.S. Department of Justice alleged that Yale University employs racially discriminatory admissions practices. While the litigation process is still early on, this investigation has revealed admissions patterns that are strikingly similar to Harvard’s. For example, admissions rates by race among those applicants in the top 10 percent academically are nearly identical across the two universities. Additionally, Yale and other elite universities utilize a multistage review process that resembles Harvard.

Conclusion

In this Essay, we have argued three points. First, we claimed that optimally constructing affirmative action in higher education requires nuance. Second, we contended that an unintended consequence of the two most recent Supreme Court rulings is that there is much less transparency about how universities make admissions decisions. This lack of transparency makes it nearly impossible to know if affirmative-action programs are fulfilling their goals. Third, we showed the value of the data exposed by SFFA v. Harvard in bringing to light many questionable admissions practices.

While obtaining access to Harvard’s admissions data was valuable to understanding the key questions we have investigated, so much more could be done to evaluate the effects of affirmative-action programs. Much of the information needed to do so comes from outcomes that occur after the admissions decision: grades, majors, social interactions, graduation, and post-college labor market outcomes. We emphasize that it is well within the means of almost all major universities to publicly provide this information. But until such information is provided, the affirmative-action debate will continue without sufficient information to do it well.

1See Paul Tough, The Years That Matter Most: How College Makes or Breaks Us (2019) (link).
2See Document 415-9 at 180–81 (from SFFA v. Harvard).

Essay

SFFA v. Harvard

Affirmative Action at a Crossroads

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