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.
