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Unmaking Affirmative Action

The color question has changed in America and this has implications for the logic of affirmative action.

· 11 min read
Unmaking Affirmative Action

On July 3, the Trump administration rescinded the Obama approach to race-based college admissions. This returns the U.S. to the philosophy of George W. Bush’s White House, which argued that race should not be a significant factor. The Trump initiative may have no immediate impact since the Supreme Court upheld race-based admissions policies in Fisher v. University of Texas at Austin in 2016. But an impact is surely coming. Consider that Justice Scalia died before he could vote against affirmative action in the Fisher case. Now Justice Kennedy is retiring and Trump’s Supreme Court will certainly tilt against the policy with dissenters like Justices Roberts, Thomas, and Alito. Previously, Justice Thomas asserted that, “a State’s use of race in higher education admissions decisions is categorically prohibited by the Equal Protection Clause.” And Justice Roberts is on record as saying that “the way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”

The end of affirmative action is a horrifying prospect for many liberals, but it may better reflect the actual views of Americans. A 2013 Gallup poll found that two-thirds of Americans believe college applicants should be admitted solely based on merit. A majority of whites and Latinos think race should not be a factor in admissions, and blacks are more evenly split, with a significant 44 percent saying admission should be based strictly on merit. A CBS/New York Times poll conducted the same year found that when Americans favor preferential programs, it is because they perceive them to be contributing to diversity on campus, not as a way to make up for past discrimination.

This goal of increasing diversity was articulated in Justice Sandra Day O’Connor’s Grutter v Bollinger (2003) endorsement of the Court’s earlier claim that student body diversity is a compelling state interest and justifies the use of race in university admissions. The moral reasoning is that greater campus diversity breaks stereotypes and xenophobia, and students will therefore emerge from these experiences with greater tolerance and less prejudice.

However, ‘diversity’ is a long way from the original purpose of affirmative action. President Lyndon Johnson’s policy (Executive Order 11246) started as a legitimate leg-up for black Americans—a boost for opportunity in employment. But the more recent logic of the courts, as well as the public imagination, contends that affirmative action will help white people think better thoughts about people of color. Integrated diversity creates contact, the thinking goes, and contact reduces prejudice. This moral argument appears to underpin the Supreme Court’s logic in the Grutter v. Bollinger case, where Justice O’Connor argued that race preference policies would be a necessary evil for only another 10 years (25 years from the original opinion). After that, presumably, we’ll be past racial discrimination.

When President Johnson first instituted affirmative action in 1965, one of the underlying purposes was reparation to the descendants of former slaves. African-Americans who felt the sting of Jim Crow racism directly would benefit from the policy. At that time, the goal of increased diversity in schools and the workplace was intimately connected to affirmative action’s restorative function, but that is no longer the case. In today’s America, many of the people who benefit from diversity policies are not disadvantaged African-Americans, but Latinos, Indians, Africans, Vietnamese, Iranians, Pakistanis, Chinese, Koreans, middle-class blacks, and so on. Unlike the mid-60s, nowadays there is significant diversity on university campuses.

The U.S. is not living in a post-racial age, in the sense that we all see past skin color, speech accents, and cultural differences. But we are living in a post black-and-white era of discrimination, in the sense that we now have many additional kinds of prejudice and bias (brought about by ‘melting pot’ trends). Prejudice is not as uniform as it used to be, and now we have micro-prejudices that cannot be legislated away; Puerto Rican Americans stereotype Mexican Americans, who stereotype African Americans, who stereotype Korean Americans, who stereotype Japanese Americans, who stereotype Chinese Americans, who stereotype Pakistani Americans, who stereotype Indian Americans, and so on. Trying to mitigate this inevitable mess of tribalism with a preferential and zero-sum admissions policy seems like a fool’s errand.

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The aftermath of the civil rights era saw huge U.S. immigration spikes for Asian and Latin American populations. In the 1960s most immigrants came from Europe, so the color question remained acute. But, starting in the 1970s, there has been a huge influx of color. In 1960, only 9 percent of immigrants were Latin American and 5 percent were Asian. Compare that with 2011 immigration, when 52 percent were Latin American and 28 percent Asian. The color question has changed in America and this has implications for the logic of affirmative action.

The ‘diversity argument,’ that Justice O’Connor proffered in Grutter, will probably not survive a substantial legal challenge because it tries to catch a specific needy demographic—African-Americans—with a wide net that also inadvertently benefits many non-African-American people of color. Moreover, ‘diversity’ is now being interpreted by conservative intellectuals as diversity of opinion and perspective. If diversity really is the goal when college campuses are being composed, then we’ll need a huge influx of under-represented conservative and libertarian students and faculty. Perhaps the one place where liberals are unlikely to win the diversity argument, broadly understood, is on college campuses where political correctness and ‘safe-space’ culture has narrowed the diversity of political viewpoints.

For the Left, it would have been better to keep the argument focused on reparation for descendants of slaves, because that smaller net captures the correct demographic group. But this argument is problematic for other reasons, namely the historical distance between today’s African American students and slavery.

Switching away from race and toward an economic criterion for preferential treatment results in two improvements; poor kids get into elite schools and poor minorities are captured within the general economic criterion. However, as legal scholar Ronald Dworkin has argued, in consideration of the Texas case, it is not enough to get black students on campus in Texas—a task easily accomplished by an existing law that takes the top 10 percent of Texas high school students and therefore draws smart, poor, black students from geographically black high schools. Judge Alito suggested, while hearing the case, that this 10 percent rule sufficiently ensures the sought-after student diversity. But supporters of affirmative action, like Dworkin, argued that this would not be the right sort of diversity, because it would feed white stereotypes that blacks are poor. Supporters of affirmative action in Texas argued that the university should be encouraged to cherry-pick black students from middle- and upper-class backgrounds in order to break campus stereotypes.

This is a strange and dubious argument against an economic criterion. Using an economic criterion only creates the stereotyping problems that Dworkin described (i.e., most of the black kids on campus will be poor) if you think middle-class blacks are not competitive with middle-class whites. Some data (from a 2011 Pew Research report) seem to suggest a competitive wealth gap between whites and African-Americans who have similar middle-class educational backgrounds, but what is needed is data of the reverse relation. Do African-American students of middle class income brackets fail to qualify (via exams and other objective measures) for quality schools? If so, this would constitute a strange and mysterious failure, since there’s no firm evidence of genetic causes for such a disparity, and middle-class status usually means that the ‘nurturing’ or cultural ingredients for educational success have been provided (e.g., intact nuclear families that push education). If, on the other hand, middle-class families that prize education produce competitive students no matter what their racial status, then the only ethical problem left in college admissions is helping economically disadvantaged students of every race.

Perhaps what Justice O’Connor should have argued was not that “diversity” policies need 25 more years of legal protection (her actual argument), but that slavery reparation needs 25 more years of legal protection. That would have been the mechanism needed to keep African-Americans inside the affirmative action cohort and other people of color outside it. That argument certainly has its champions, as I learned at a recent mandatory ‘Undoing Racism’ workshop at my college. For two full days, my colleagues and I were told by the People’s Institute for Survival and Beyond that “only white people can be racists” because only white people hold institutional power in the U.S. When my extremely diverse colleagues from all over the world objected that there is plenty of racism in Asia, Africa, the Middle East, and elsewhere, we were all informed that racism was actually a U.S. invention to justify slavery and that evidence of international racism or ancient racism was either spurious or derivative of the white American variant. The explicitly stated goal of the workshop was to sensitize people to the black struggle in particular, and it had no pretensions about diversity or inclusion per se. However, that argument, baldly stated, sounds less tenable to contemporary Americans. Many Americans see discrimination as a social problem and one that is much more complex than simply white and black. Moreover, many African-Americans have much greater economic and institutional power these days—a point raised by black colleagues during the workshop, and summarily silenced by the workshop leaders who preferred to see rich and politically powerful blacks as outliers.

Many middle-class African-Americans also feel that we’ve outgrown affirmative action. President Obama, for example, has stated that his own privileged daughters don’t deserve affirmative action preferences. Instead, he argues, low-income students of all races, should be given preferential treatment. At the same time, however, his Department of Justice supported the race-based admissions in the University of Texas case.

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When Asians score their way into all the slots at the good schools, will whites argue that they were discriminated against? Actually, Asian scholastic excellence is already so powerful that Asians have to be discriminated against to keep them from overpopulating competitive programs. William M. Chace, in his 2011 “Affirmative Inaction” essay in the American Scholar, tells of a Princeton study that analyzed the records of more than 100,000 applicants to three highly selective private universities. “They found that being an African-American candidate was worth, on average, an additional 230 SAT points on the 1600-point scale and that being Hispanic was worth an additional 185 points, but that being an Asian-American candidate warranted the loss, on average, of 50 SAT points.”

As far as overall diversity goes, we might bite the bullet and assert—independent of the affirmative action tradition—that we want a pluralistic campus which reflects our national melting pot. To that end, we might create a quota lottery that replicates, on campus, the same racial demographics of the whole nation (75 percent white, 15 percent Latino, 12 percent black, 5 percent Asian, and so on). But the problem here is now obvious. We would need to actively restrain one of the most impressive academic racial groups (Asians) in order to force them to conform to their tiny demographic percentage. This seems both unethical and unwise. Asian-Americans have been disproportionately injured by discriminatory admissions policies, which is why the Asian-American Coalition for Education (AACE) has successfully motivated the U.S. Department of Justice (DOJ) to begin an investigation into Harvard’s admission policy.

Liberals might object that Chinese people never had the hard times that blacks had in America, so they don’t deserve any special treatment. The descendants of the Chinese indentured laborers who built the transcontinental railroads would probably beg to differ, as would the descendants of the Los Angeles Chinese massacre and mass lynching of 1871. Moreover, what do we make of the Naturalization Act of 1870, that extended citizenship rights to African-Americans but denied them to Chinese on the grounds that they could never be assimilated and integrated into American society? Almost a century of anti-Chinese policies followed, punishing them and subjecting them to Jim Crow-like conditions. Also, a new study shows that income inequality for Asians has now surpassed the ratio for African-Americans, so the myth of Asian economic advantage is exposed.

The tangled criteria of (a) reparation for past injuries and (b) ‘breaking stereotypes’ (through increased diversity) is a very sticky wicket, because it radically opens the floodgates of equally reasonable complaints. Latinos in every economic class will need to be cherry-picked, as will Asians and every other group. If there are not enough gays and lesbians on campus to defuse homophobia, institutions will need to protect slots for gays and lesbians in every economic and racial category. Transgendered students will not just need representation, but representation from different economic backgrounds. And Asians who are bad at math and Jews who are bad at economics will need special recruitment, in order to break down those pernicious stereotypes on campus. In short, ‘breaking stereotypes’ is an over-inclusive criterion, and fails the strict scrutiny expectation that a law or policy be ‘narrowly tailored’ to achieve its goal or interest.

Here we see the problem with basing today’s preferential treatment on histories of injury and victimization. Too many groups have been victims for the State to undo the damages. The medicine becomes worse than the disease it is intended to treat. Perhaps it is better, as the libertarians suggest, for the State to get out of the way and let individuals improve their lives.

From the libertarian perspective, the burden of educational success falls on the individual and the family. This is not naïve rugged individualism. Every child that does well in school is only the visible spear-tip of a hidden weapon—and that weapon is the family. On this view, it is the devotion and labor and focus of the family, not race or money, that makes the major difference between the successful and unsuccessful post-secondary student. For example, a recent study looks at why Asian kids from poor families score better than rich white kids, and concludes that Asian family culture makes the difference. It’s not some genetic or innate cognitive advantage, but the family insistence that achievement comes from extreme effort—a longstanding emphasis in Confucian cultures. Of course, this is unlikely to be the only cause of academic excellence, but it can’t be ignored or trivialized either.

We need to face reality. College admission and employment generally is a competitive zero-sum game. Affirmative action started as a well-intentioned way to redress inequalities, but it has become an ethical and practical quagmire. It is now effectively pitting races against each other, and rigging the results so that individual merit differences are discounted. Liberals are afraid that eliminating affirmative action is the same as turning away from those who are less fortunate, whereas conservatives and libertarians think that, when the State gets out of the way, individuals and families make themselves more prosperous. If the State must be involved in the redistribution of social outcomes through college admissions, then it should stick to a problem it can actually solve—namely, improving access for poor people of every race.

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