Capital Ideas
Rethinking
Affirmative Action
Universal History Archive/Getty Images
President
Lyndon B. Johnson, who laid the groundwork for affirmative action, with Martin
Luther King Jr., left, Whitney M. Young Jr. and James Farmer in 1964.
By DAVID LEONHARDT
Published: October 13,
2012
Washington
Fred R. Conrad/The New
York Times
Abigail
Fisher claims that underqualified students of color were admitted to the
University of Texas and she was not.
THE
founding principle of affirmative action was fairness. After years of
oppression, it seemed folly to judge blacks by the same measures as whites.
“You
do not take a person who, for years, has been hobbled by chains and liberate
him, bring him up to the starting line of a race,” President Lyndon B. Johnson
said in a 1965
speech that laid the groundwork for affirmative action, “and then say, ‘You
are free to compete with all the others,’ and still justly believe that you
have been completely fair.”
Given
this history, it was striking to watch the 80 minutes of Supreme Court oral arguments
about affirmative action on Wednesday. With the courtroom overflowing,
filled with people who have spent their careers fighting for or against
affirmative action, only one side talked about fairness. And it was not the
side defending affirmative action.
The
lawyer for Abigail
Fisher, a young white woman rejected by the University of Texas, argued
that she had been denied equal treatment. The conservative justices,
sympathetic to Ms. Fisher’s case, expressed particular concern that affluent
black students were receiving preferential treatment.
Nobody
on the other side — not the university’s lawyer, not the Obama
administration’s, not the liberal justices — responded by talking about the
obstacles that black and Latino students must overcome. The defenders of
affirmative action spoke instead about the value of diversity. Without diverse
college classes, they argued, students will learn less and society will lack
for future leaders.
The
decision to emphasize diversity over fairness is one that affirmative-action
proponents made long before Wednesday, and it is a big reason they find
themselves in such a vulnerable position today.
Americans
value diversity. But they value fairness more. Most people
oppose a college’s or employer’s rejecting an applicant who appears
qualified for the sake of creating a group that demographically resembles the
country.
With
affirmative action boiled down to a diversity program, it finds itself in
retreat. Five of the six states that have held referendums on racial
preferences have banned them, including California and Florida. The Supreme
Court limited the legal forms of preferences in 2003 and suggested that they
had only 25 years left. Based on last week’s oral arguments, and the fact that
Justice Anthony Kennedy has never voted to uphold preferences, the court may
restrict them further or forbid them.
Yet
supporters of affirmative action do not necessarily need to despair. They still
have a path
open to them, one that remains legal and popular. It involves resurrecting
Johnson’s vision of an affirmative action program based on fairness, which the
Rev. Dr. Martin Luther King Jr. also favored.
The
crucial choice that affirmative-action proponents made long ago was to focus
the program on race rather than more broadly on disadvantage.
There
were some obvious reasons to do so. Americans have never been comfortable
talking about class. It reeks of the social order the country rejected at its
founding (Britain’s) and of the economic system the country spent decades
fighting (communism). But race was an undeniably American problem, from slavery
to civil rights to the discrimination that, according to voluminous
social-science research, lingers.
By
forgoing a broader view of disadvantage, colleges lost the ability to claim
that their overriding goal was meritocracy. “That was the key moment, when they
forfeited fairness,” Richard
D. Kahlenberg of the Century Foundation, who has written
a book about affirmative action, told me.
Institutions
using affirmative action could not claim to be bringing everybody — rich and
poor, white and black, native and immigrant — up to the same starting line, in
Mr. Johnson’s formulation. They instead were creating a system that depended on
racial categories.
From
a legal perspective, the decision made the supporters’ task harder. The very
laws intended to address the country’s racial history set a high bar for any
race-based system. In its first major affirmative-action ruling, the Bakke case
of 1978, the Supreme Court rejected the notion that society-wide discrimination
justified preferences for individuals. The court reaffirmed that finding in
2003, while also reaffirming that diversity was a legitimate rationale.
It
is impossible to know whether affirmative action could have had a more enduring
foundation were it based on a broader equal-opportunity approach. Proponents
never tried this alternative. Courts, however, have consistently upheld
socioeconomic preferences. Had black and Latino students been benefiting from
those preferences, as many would, at least some portion of affirmative action
might be in less peril.
But
the liberals behind the great successes of the civil rights and women’s
movements never showed as much interest in economic diversity. On college
campuses, administrators have insisted for years that they care about
disadvantage, beyond race, but they have done relatively
little about it. They have preferred a version of diversity focused on
elites from every race.
Black and Latino college applicants, as well as athletes and so-called
legacies, receive large preferences — the equivalent of 150 to 300 SAT points.
Low-income students, controlling for race, receive either no preference or a
modest one, depending on which study you believe. At the country’s 200 most
selective colleges, a mere 5 percent of students come from the bottom 25 percent
of the income spectrum, according to Anthony P. Carnevale of
Georgetown. In court on Wednesday, Justice Samuel A. Alito Jr. attacked the
political underbelly of this system. The University of Texas argued that
diversity within racial groups was also important, citing “the African-American
or Hispanic child of successful professionals in Dallas.” Skeptically, Justice
Alito asked the university’s lawyer, “They deserve a leg up against, let’s say,
an Asian or a white applicant whose parents are absolutely average?”
Justice Kennedy followed up by telling the lawyer, in one of the most quoted
lines of the day, “So what you’re saying is that what counts is race above
all.”
Even in California, which has banned racial preferences, race can still
dominate the debate. Richard H.
Sander, a law professor at the University of California, Los Angeles, has
found some hard-to-explain patterns in U.C.L.A.’s undergraduate admissions. The
college has accepted a significantly higher percentage of blacks and Latinos
than whites and Asians with the same “holistic score,” a number the admissions
office gives to every applicant, based on test scores, grades, extracurricular
activities and obstacles overcome. U.C.L.A. officials say that the holistic
scores do not fully capture the obstacles some students face.
Back in the 1960s, Dr. King understood the vulnerability of today’s
affirmative action. “Many white workers whose economic condition is not too far
removed from the economic condition of his black brother will find it difficult
to accept,” he wrote in a private letter, “special consideration to the Negro
in the context of unemployment, joblessness, etc. and does not take into
sufficient account their plight (that of the white worker).”
If the courts and voters continue to restrict racial preferences, supporters
will have three options. They can give up, which is unlikely. They can quietly
subvert the law, as some critics, like Mr. Sander, believe is happening in
California. Or they can attempt an overhaul of affirmative action.
The economic argument for a different version has only become stronger over
time. Outright racism certainly exists, and colleges would have a hard time
taking it into account if race-based affirmative action became illegal. But
simple discrimination seems to have become a relatively smaller obstacle over
the last few decades, while socioeconomic disadvantage has become a larger one.
The title of a recent paper by Roland G. Fryer Jr., a Harvard economist,
summarizes the trends: “Racial
inequality in the 21st century: The declining significance of
discrimination.”
Racial gaps remain large enough that colleges would struggle to recruit as
many black and Latino students without explicitly taking race into account. But
some experts, like Mr. Kahlenberg, think they could come close. To do so, they
would need to consider not just income, but also wealth, family structure and
neighborhood poverty. Those factors disproportionately afflict black and Latino
students — and hold back children from life’s starting line.
Mr. Kahlenberg argues that wealth is especially defensible, because it can
capture discrimination’s intergenerational effects. Some universities in states
where racial preferences are banned, including California, have begun taking
small steps to consider class more fully.
Until the Supreme Court rules, sometime next year, the focus will be on its
decision. And its decision matters. Yet the choices that universities make
matter, too. You wouldn’t have known it from sitting in the courtroom, but
there is a version of affirmative action — legal, generally popular and arguably
more meritocratic — that higher edcuating ion has not yet even tried.
