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A World Without Affirmative Action

We need creative thinking and real problem solving to address inequality in education.

· 6 min read
A World Without Affirmative Action
Demonstrators against Harvard University's admission process at Copley Square in Boston, Massachusetts, U.S., on Sunday, Oct. 14, 2018. Photo by Adam Glanzman via Getty Images

The recent tumult surrounding the Supreme Court’s ruling on abortion reminds us that the American body politic is closely and intensively divided on many contentious political, social, religious, cultural, and economic issues. One of those issues is the question of whether affirmative action, particularly in college admissions, passes constitutional muster.

A group that calls itself “Students for Fair Admissions” (SFFA) brought a lawsuit against Harvard on November 17th, 2014 in Boston’s federal district court, alleging that the college’s admittedly race-conscious admissions policies and practices (“affirmative action”) violate federal civil rights laws because they discriminate against Asian-Americans. In 2019, the United States District Court for Massachusetts ruled that Harvard’s race-conscious admissions program did not intentionally discriminate against Asian-Americans and concluded that Harvard had no workable race-neutral alternative that would give its student body some degree of racial diversity. The United States Court of Appeals for the First Circuit affirmed this decision in 2020.

In February 2021, SFFA sought Supreme Court review. The high court on January 24th of last year agreed to review the First Circuit’s ruling. A decision by the conservative-leaning high court would have serious implications for admissions policies, ending or severely constraining affirmative action programs across the country. Because of this, the Biden administration has urged the Court to reject the review.

SFFA also petitioned the Supreme Court to review affirmative action in the public sector. (Harvard is a private university.) SFFA had sued the University of North Carolina in November 2014. The high court agreed to review this ruling as well and consolidated it with the Harvard case. In October 2022 the high court heard oral arguments, and the public will soon learn the outcome.

Opponents of racial preferences have long claimed that affirmative action, by its very nature, violates the equal protection clause of the 14th Amendment because it treats individual applicants differently based solely on their membership in a racial demographic category. Further, since Harvard and UNC, as well as nearly every other college and university, accept federal funds, critics of affirmative action claim that both public and private colleges violate equal protection by engaging in racial preferences.

Conservative justices have made this argument in several dissents. For example, in Missouri et al. v Jenkins et al., 1995, Associate Justice Clarence Thomas declared that “at the heart of this interpretation of the Equal Protection Clause lies the principle that the government must treat citizens as individuals, not as members of racial, ethnic, or religious groups.” By its very nature, however, affirmative action treats students of different races unequally. And despite efforts to obfuscate or disguise this, to claim that race is just one small factor in a potpourri of factors, affirmative action inevitably favors applicants of some races over applicants of other races. That the favoritism is supposedly a grain of sand in a beach of other variables and considerations is constitutionally and morally irrelevant. To see this clearly, imagine our (and the Supreme Court’s) reaction if an institution favored Caucasian applicants but justified its favoritism by arguing that race was just one small factor in a panoply of factors.

Ever since the Bakke decision in 1978, pro-affirmative action court opinions have been uneasy and defensive, camouflaging the unappealing logic of affirmative action behind righteous rhetoric about “diversity.” The reason is obvious: In a nation that at least in theory treats all citizens equally under the law, the courts were being asked to approve of policies that were avowedly tipped in favor of some students and against others, on the basis of race. After a bloody civil war and a long-held national policy seeking to treat citizens of all races, religions, and social and economic statuses equally under the law, a policy arose that disadvantaged Caucasians (and, more recently, Asians as well). Many correctly saw affirmative action as a rejection of the individualism that early civil rights advocates had espoused.

There is no denying that affirmative action can increase racial diversity in school settings. Jordan J. Cohen, former president and CEO of the Association of American Medical Colleges (AAMC), asserted in 2003 that “until such time that students from all racial and ethnic backgrounds emerge from the educational pipeline with an equivalent range of academic credentials, there is simply no way for medical schools to fully meet their societal obligation without using race and ethnicity as explicit factors in admissions decisions.”

However, despite the pervasive belief that diversity is an unalloyed good, it is not self-evident that diversity is always desirable or without costs. And, in fact, some evidence suggests that diversifying schools has led to negative educational outcomes for some minority students. Richard Sander and Stuart Taylor wrote a comprehensive book on this topic called Mismatch; and more recently, Norman Wang wrote an article about it which was eventually retracted, over his objections (indicating how incendiary this topic is). The basic argument is that affirmative action hurts the students it is intended to help by putting them in academic situations for which they are not prepared or possibly even qualified.

Thus, even on narrow consequentialist grounds, affirmative action may be a bad policy, one that is both divisive and counterproductive. And diversity, although often laudable, is not without costs, especially if it is artificially manufactured.

With the current conservative majority on the Supreme Court, affirmative action is unlikely to survive. In 2003, the late Justice Sandra Day O’Connor penned the opinion (and cast the deciding vote) that saved affirmative action in Grutter v. Bollinger, a case that challenged the constitutionality of affirmative action at the University of Michigan. O’Connor, who herself was a beneficiary of affirmative action favoring women—who at the time were discriminated against in law school admissions—wrote that affirmative action was constitutional if used as a temporary tool for increasing diversity. Her decision ended optimistically, noting that affirmative action would not be necessary in 25 years. But by the time the Court of Appeals decided Students for Fair Admissions in 2020, 17 years had elapsed with no end in sight.

If, in fact, the Supreme Court were to rule that affirmative action is unconstitutional, the burden of redressing the social and educational problems that led to the practice would move to other social and legal mechanisms for dealing with the roots and consequences of inequality.

My own guess—and hope—is that the lower echelons of the public educational system, from kindergarten through high school, will rise to the occasion and take the drastic steps needed to improve the education of all public-school students. This might entail reforms such as (1) curbing the influence of teachers’ unions in inhibiting educational innovations, (2) adequately funding public education, and (3) assisting societal reforms to reverse dysfunctional family patterns that disadvantage racial and ethnic minority students educationally.

I have long proposed as one possible reform that public school students who have academic difficulties, but whose parents are unable to help them with homework, would benefit from programs whereby the government pays college students to match-up with elementary and high school students to tutor them and help them with homework when parents are unable to do so and cannot afford private tutors. Whether this would bear fruit is an empirical question, but our nation is long overdue in thinking creatively about improving the educational prospects of all students, without placing a clearly unconstitutional (and unwise) weight on the scale via affirmative action. Reverend Martin Luther King Jr. asserted that “We shall overcome because the arc of the moral universe is long, but it bends toward justice.” That arc needs a boost, and that boost is education.

To implement educational reforms conducive to the improvement of our educational system, I am currently conducting a campaign to appear, as a petition candidate, on the ballot for the upcoming election of members of the Harvard Board of Overseers. One of my aims is to wean Harvard College off its reliance on affirmative action once the High Court has spoken, and to encourage college students to play a crucial role in the education of disadvantaged children. This is in addition to my long-held goal of dismissing 95 percent of college administrators, who play no useful role and are largely responsible for speech codes and the kangaroo courts that enforce them, resulting in sky-high tuitions that make it impossible for middle-class families to finances their kids’ educations without massive financial assistance or crippling loans.

Affirmative action for too long has acted as a crutch that discouraged creative thinking and real problem solving. The Supreme Court seems likely to kick out that crutch. Our society must be ready.

Harvey Silverglate

Harvey Silverglate is a criminal-defense and civil-liberties litigator, columnist, book author, and co-founder of the Foundation for Individual Rights and Expression.

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