In a recent article in the New York Times (6/17/14), economic columnist David Leonhardt says that “affirmative action as we know it is probably doomed”. I wish I could be so confident. Premature obituaries for affirmative action have been a periodic feature of commentators and op-ed writers for three decades now (I foolishly engaged in such speculation myself many years ago), yet racial preferences, especially those in academia, have proven highly resistant to a final demise.
It is easy to see though why informed commentators might think affirmative action is on the way out. In last year’s Fisher v. Texas case (dealing with race-based admissions at the University of Texas’s undergraduate program) the Supreme Court reaffirmed that race-based classifications must be subject to the most demanding “strict scrutiny” standard of constitutional review. Under this standard racial classifications are only constitutionally permitted if they serve a truly “compelling state interest” — and then only if there is no practicable alternative that can achieve the same interest without resort to classifying by race.
Race Is Still a Large Plus
To the uninitiated technical terms in constitutional law like “strict scrutiny” and “compelling state interest” may sound like they have a clearly understood meaning but as Sandra Day O’Connor illustrated in the 2003 Michigan Law School case (Grutter v. Bollinger, affirming the standard of strict scrutiny in race-based cases while simultaneously validating the race-as-a-huge-plus-factor admissions policy at Michigan Law) such terms can be defined and redefined according to the policy preferences and ideological predilections of the judges. There is surely no guarantee that with a slight alteration in the composition of the present Court — brought about by the death or retirement of one or more of the five Republican-appointed justices and their replacement by a Democratic appointee — the Court will remain as skeptical as at present about affirmative action programs.
Leonhardt and others who predict the demise of affirmative action may also have been influenced by opinion polls during and after the Fisher controversy showing widespread opposition to race-based decision making in college admissions. For instance, a 2013 ABC News/Washington Post survey asked respondents whether they supported or opposed “allowing universities to consider an applicant’s race as a factor in deciding which students to admit?” By a factor of greater than three-to-one (76 vs. 22 percent) respondents said they opposed using race in university admissions. A Gallup organization poll in the same year produced similar results. “Which comes closer to your view about evaluating students for admission into a college or university,” Gallup asked: “(a) applicants should be admitted solely on the basis of merit, even if that results in few minority students being admitted, or (b) an applicant’s racial and ethnic background should be considered to help promote diversity on college campuses, even if that means admitting some minority students who otherwise would not be admitted?” Only 28 percent of respondents chose the “consider race to promote diversity” alternative, while 67 percent (more than two-thirds) chose the merit-only response (5 percent had no opinion). A solid majority of Hispanics also selected the merit-only over the diversity-enhancement response (59 vs. 31 percent), while even with Blacks the merit-only response garnered a full 44 percent of respondents, only slightly behind the 48 percent who supported racial preferences as a means to furthering diversity. It is clear that a substantial majority of Americans support a strict merit-based, color-blind system of college and university admissions, and some, like Leonhardt and others, seem to have concluded from this that affirmative action is doomed.
Related: Are Racial Preferences Now Entrenched For Decades?
But the problem with such reasoning is that a substantial majority of Americans have always supported strict meritocracy in the allocation of seats in competitive colleges and universities. Since Gallup and other organizations first began polling on this issue in the 1970s, clearly-worded questions have always shown that among the general public merit-only, color-blind admissions wins out over schemes of racial preferences as the best way to allocate scarce seats in institutions of higher learning. Widespread opposition to affirmative action in the past has not prevented the policy from being implemented by virtually every elite private college and university in the land. Yale law professor Peter Schuck, who has exhaustively studied this issue for many years, accurately sums up the situation when he says that “no other public policy since the rise of the administrative state during the New Deal … has remained so intensely unpopular [as affirmative action] … yet has survived so long” (Diversity in America, 134). The general unpopularity of racial preference policies is nothing new, and hardly suggests their doom. There are powerful political and psychological reasons for all this (some of which I go over in my book Wounds That Will Not Heal), and, at least in the near future, I see little reason to expect anything to change.
The one avenue in which racial preference policies have been cut back or eliminated is through voter ballot initiatives in states permitting this kind of legislative enactment. California’s Proposition 209, outlawing racial preferences in all state-sponsored employment and educational arenas, is the best known instance of this, though several other states have passed similar ordinances. Here Leonhardt and others are correct that affirmative action can be genuinely threatened, though it is important to keep in mind that only a minority of states have ballot initiatives similar to California’s and that such initiatives typically single out only state colleges and universities, not private ones.
Substitutes, Alternatives, Workarounds
What will college administrators do if they are prohibited by law — whether through ballot initiatives or court rulings — from using race in their admissions policies? Here Leonhardt’s Times article provides a good account of various strategies that have been suggested to achieve some of the putative goals of affirmative action policy without the explicit use of race. Those of us who support race-blind, strictly meritocratic admissions policies should scrutinize each of these proposals very carefully. The most common proposal along these lines, one extensively developed by Richard Kahlenberg in his The Remedy: Class, Race, and Affirmative Action, calls for the replacement of race-based preferences with class-based preferences. Instead of giving special consideration to those who are of a particular race, under class-based affirmative action college applicants who come from families at the lower end of the socio-economic and educational spectrum would receive a boost in comparison to applicants from more privileged backgrounds.
Class-based affirmative action of this kind has many advantages over the race-based kind. Not only is it immune to constitutional challenges under the 14th Amendment’s Equal Protection Clause (courts since the New Deal have been very accommodating when it comes to distinctions based on socio-economic status), but surveys by Vanderbilt political scientist Carol Swain have shown widespread public support for such preferences across a broad swath of the American public. Even strict meritocrats agree that having overcome past deprivation is meritorious, and few would consider an A- student from an intellectually and culturally deprived background as any less capable or qualified than an A student from a highly privileged one. As long as the special consideration based on class were a moderate one, few would find class-based affirmative action objectionable, certainly not as objectionable as so many find race-based affirmative action.
Limits of Class-Based Preferences
But class-based affirmative action will never bring about the increase in the Black and Latino presence on college campuses that many of its proponents believe. While Blacks and Latinos are disproportionately represented among the nation’s poor and disadvantaged, White and Asian students from families with similarly low incomes and meager educational resources generally do much better in terms of high school grades and standardized test scores. Class-based affirmative action would certainly enhance socio-economic diversity on elite college campuses but many of those from deprived backgrounds would not be Black or Latino, the two groups most sought after by college administrators. Poor Whites and especially poor Asians would tend to dominate the cohort of class-based affirmative action admits if the policies were administered on a race-blind basis. Meritocrats might celebrate this, but the racial bean counter would remain distraught.
An alternative version of class-based affirmative action that would avoid the skewing toward poor Whites and Asians without resorting to specific racial criteria — and without moving too far away from what many would consider merit — has been proposed by Georgetown law professor Sheryll Cashin, whose work is summarized in the Leonhardt article. In her Place, Not Race: A New Vision of Opportunity in America, Cashin proposes to expand the criteria for socio-economic, educational, and cultural deprivation to include not only family income and parental education, but family wealth and residence in high-poverty neighborhoods. Since Blacks and Latinos from low-income households are much more likely than Whites and Asians from similar households to both live in high-poverty neighborhoods and have substantially lower family net-worth, more Blacks and Latinos would qualify for special consideration based on such expanded criteria of deprivation.
Related: ‘Role-Model’ Affirmative Action: Not Needed, Not Legal
Cashin’s proposal has gained considerable resonance on the political left, and what she says is not something meritocrats would want to dismiss out of hand. Putting aside complicating issues like ethnic cultures and genes, it is unquestionably harder to do well in a neighborhood school setting if the bulk of those in your school come from economically and educationally deprived backgrounds. Poor White and Asian high school students are much more likely than their Black and Latino counterparts to live in a mixed-income neighborhood and go to school with people of a higher socio-economic status than themselves. Lack of such class integration in their schools and neighborhoods is an additional burden for many poor Black and Latino youth. Cashin’s expansion of the idea of class deprivation is a genuine attempt to develop an understanding of the many obstacles faced by poor Black and Latino students who live in concentrated poverty neighborhoods, and the special consideration that she believes should be given to such students in the college admissions process is consistent with generally accepted American ideals of race neutrality and merit.
Cashin’s enhanced class-based affirmative action, however, is not likely to get the kind of Black and Latino representation on elite college campuses that race-based affirmative action supporters so passionately desire. This is because those poor Black and Latino students growing up in neighborhoods of concentrated poverty — the majority in inner cities — are among the lowest scoring and lowest achieving of any low-income group. Unless colleges and universities dramatically lower their entrance standards for them — a policy with egregious consequences on multiple levels — adding a neighborhood factor and a family net-worth factor to one’s index of deprivation is not likely to bring about the kind of healthy racial and ethnic diversity that college administrators say they want.
A final proposal mentioned in the Leonhardt article would seek to achieve more Blacks and Latinos on college campuses without an explicit use of race by duplicating the “percentage plans” that Texas, Florida, and some other states have used. Under these plans, a certain percentage of the top graduates of all state public high schools become eligible for admission to the state universities. Since high schools in many areas are often demographically skewed, with many being nearly all Black, all Latino, or all Black-and-Latino, percentage plans, like Texas’s 10-percent plan, guarantee a substantial presence of otherwise “underrepresented minorities” at state universities.
Unlike class-based affirmative action, percentage plans can — and do — bring very substantial numbers of Blacks and Latinos to college campuses. But there are huge downsides to such plans which render them very unwise. First of all, the different levels of achievement at different high schools is often enormous, with a top-scorer in a low-achieving school barely able to compete with a middle-scorer at a more rigorous school. In New Jersey, for instance, where each public high school must report its average SAT scores each year, high-end schools like West Windsor and Princeton typically score in the 600-620 range, while low-end schools like Camden and Newark score in the 340-360 range. There is very little overlap in the test scores of the high- and low-end schools, and the very best students in the latter are often non-competitive with even the middle-achieving students in the former. Academic administrators don’t like percentage plans because the best Black and Latino students are often found in the high-end high schools, with class ranks in the middle or upper-middle range but below the percentage plan cut- off.
Given the huge achievement differences between public high schools, percentage plans have the inevitable effect of placing on the same college campus students of vastly different levels of ability and achievement, with all the problems — mismatch, stigma-reinforcement and otherwise — that this necessarily entails. In addition, percentage plans involve at least two “moral hazards” (to use the term of economists). First, they often encourage a small number of academically focused youth and their families, often not Black or Latino, to enroll in low-achieving schools knowing that the reduced competition will enable them to score near the top of the pack and meet the percentage criteria for admission to the state universities. This appears to be a much more common phenomenon than many imagine (Cashin discusses this in her book). The other moral hazard that percentage plans create is what might be called “low-performance complacency.” Since each high school is guaranteed each year the acceptance of a certain percentage of its graduates to state universities regardless of their academic performance relative to that of students in other schools — or relative to national norms — poor performing schools have a reduced incentive to improve.
The Pipe-Line Problem
Let’s get real. If racial preference policy is abandoned and college administrators want both to maintain a similar level of Black and Latino students on elite college campuses as at present — while at the same time adhering to widely shared ideals of merit and fairness — there is no other alternative than addressing the fact that so few Black and Latino students score at the highest level of achievement. Social scientists call this “the pipe-line problem.” Princeton sociologist Thomas Espenshade and his co-author Alexandria Radford state the matter in its simplest terms: “Improving the academic performance of underrepresented minority students constitutes the only viable, long-run strategy for preserving meaningful minority representation on elite college campuses if race-based affirmative action is eliminated. No amount of tinkering with admission practices can match the power or attractiveness of this solution” (No Longer Separate, Not Yet Equal, 377).
Just how — or whether — this broadly based improvement can be achieved is a topic of the most pressing importance to academic administrators and others. Espenshade and Radford see it as the domestic American challenge in the 21st century. While they may exaggerate — social scientists tend to see the specific problem they study as more important in the overall scheme of things than is warranted by a more catholic perspective — there is no denying that improvement in Black and Latino school performance would be a welcome development for all parties concerned. And if we want to get real we must acknowledge that neither race-based affirmative action nor any proposed substitute or workaround for it will have any positive effect in bringing about such a desired result. On the contrary, by focusing attention away from the real problem of Black and Latino educational failure, America’s affirmative action policies have done enormous harm over the past forty years to those minority groups it was set out to help. One can only hope that, should race-based preference policies pass from the scene — whether through ballot initiative or otherwise — the real educational problems at the root of current difficulties can be addressed with the seriousness and attention they deserve. General MacArthur famously said that “in war there is no substitute for victory.” In the college admissions process there is no substitute for academic achievement.