Has America Outgrown Affirmative Action?

https://www.nytimes.com/2022/11/02/opinion/affirmative-action-supreme-court.html

Version 0 of 1.

This article is part of the Debatable newsletter. You can sign up here to receive it on Wednesdays.

In 2003, the Supreme Court justice Sandra Day O’Connor cast the deciding vote to save affirmative action. The dream of a united multiracial nation, she believed, required that the path to higher education be open to every American, which justified the consideration of race as one factor among many in university admissions — at least for a while. In 25 years, she predicted, affirmative action would no longer be necessary.

Nineteen years later, the Supreme Court is considering whether that expiration date should be preserved or pushed forward. If the conservative majority’s reaction to oral arguments on Monday was any indication, The Times’s Adam Liptak reported, race-conscious admissions could soon be a thing of the past.

Why has the debate over affirmative action become so contentious in recent years, and has the policy really become obsolete? Here’s what people are saying.

Although the Civil Rights Act of 1964 outlawed racial discrimination, many movement leaders, including Martin Luther King Jr., contended that bringing about a fair society in deed, and not just in the word of the law, would require programs to compensate African Americans for centuries of exploitation, disenfranchisement and exclusion from equal education and employment opportunities.

This compensatory rationale became the initial basis for affirmative action, articulated by President Lyndon B. Johnson in a 1965 commencement address at Howard University: “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 and then say, ‘You are free to compete with all the others,’ and still justly believe that you have been completely fair.”

Affirmative action survived its first Supreme Court challenge in 1978, but took on an altered form. The court rejected the notion that societal discrimination could justify racial preferences in admissions and ruled that racial quotas were themselves an illegal form of discrimination. At the same time, it upheld the right of universities to pursue a diverse student body; to that end, race or ethnic background could be deemed a plus in a particular applicant’s file.

Some argue that the shift in affirmative action’s rationale, from a form of reparations for past injustice to a guarantor of diversity, has made it harder to defend both legally and politically. For as much as Americans value diversity, nearly three-quarters of U.S. adults, including a majority of Black, Hispanic and Asian respondents, said in a 2019 Pew survey that race or ethnicity should not be a factor in college admissions. Nine states have banned the practice at public universities — six of them via ballot referendums — starting with California in 1996.

The two cases now before the Supreme Court — one against the University of North Carolina, the other against Harvard — were both brought by plaintiffs who accuse the universities of discriminating against white and Asian applicants by giving preference to Black, Latino and Native American ones. In the Harvard case, the plaintiffs also argue that the university uses a subjective standard to gauge personality traits and routinely rates Asian Americans lower than others in order to keep their numbers artificially low, a practice that has drawn comparison to erstwhile efforts by Harvard and other elite universities to limit Jewish enrollment.

Some critics of race-based affirmative action oppose it on principle, whatever its justification. The Times contributor John McWhorter, for example, believes that the educational benefits of diversity are fragile at best, and therefore not worth founding an admissions policy upon.

But he takes issue, too, with the older compensatory rationale for race-based affirmative action. For one thing, he wrote in September, Black Americans are better off now than they were in the immediate aftermath of the civil rights movement, “when a much larger proportion of Black America lived in poverty and legal segregation was a recent memory.” For another, the continuation of the policy places an unfair burden on Asian American students, who “have every right to feel discriminated against and to challenge an admissions policy that makes it such that achievement by an Asian kid is valued less than the same or perhaps lesser achievement by a Black, Latino or, for that matter, white kid.”

Other critics of affirmative action remain sympathetic to its initial rationale but believe racial preference to be too blunt a tool. As the Times columnist Ross Douthat notes, the current system of racial categorization that universities use makes no distinction, for instance, between a descendant of American slaves and a scion of the Nigerian upper class. At a Harvard Black alumni gathering in 2004, two professors estimated that as many as two-thirds of Harvard’s Black undergraduates were first- or second-generation immigrants from Africa or the Caribbean or the children of biracial couples. (A 2007 study found that Black students of immigrant origin were indeed overrepresented at selective universities.)

Who, then, is affirmative action really helping? In The Atlantic, Richard Kahlenberg noted that 71 percent of Black, Latino and Native American students at Harvard come from college-educated homes with incomes above the national median, hailing roughly from the most advantaged fifth of families in their own racial groups. “The dirty secret of higher education in the United States is that racial preferences for Black, Latino and Native American college students provide cover for an admissions system that mostly benefits the wealthy,” he wrote. “A multiracial aristocracy is more inclusive than an all-white aristocracy, but it is still an aristocracy.”

For Jonathan Feingold, a professor at Boston University School of Law, and Vinay Harpalani, a professor at the University of New Mexico School of Law, the two cases before the Supreme prove the need for more race-based affirmative action, not less. Framing the issue as a zero-sum competition between Asian Americans and other students of color, they argue, obscures the largest beneficiaries of preferential treatment in admissions: wealthy and connected white students.

Among white admits at Harvard, for example, one study found that 43 percent are legacies, recruited athletes, on the dean’s interest list or children of faculty and staff, compared with less than 16 percent of African American, Asian American and Hispanic admits. Had this group of white admits been treated as standard white applicants, the study estimated roughly three-quarters would have been rejected — more than the number of all Black and Latino admits combined.

In a 2017 New Yorker article, Jeannie Suk Gersen, a professor at Harvard Law School, took a similar stance to Feingold and Harpalani. “It distorts and confuses the debate to lay the preferential treatment for whites over Asians at the feet of affirmative action — or, on the other side, to deny that Asians are disadvantaged in admissions today,” she wrote. “What is needed instead, then, is race-conscious affirmative action, to address the historic discrimination and underrepresentation of Blacks and Latinos, in combination with far less severity in the favoring of whites relative to Asians.”

“Historic discrimination” may be irrelevant for the Supreme Court’s purposes, but many argue, contra McWhorter, that the rationale for affirmative action as a form of reparations for slavery and its aftereffects still obtains. Six years before O’Connor’s deadline, “it is impossible to argue that Black Americans enjoy equality of opportunity,” wrote Lee C. Bollinger, the president of Columbia, and Geoffrey R. Stone, a law professor at the University of Chicago. “Affirmative action must continue, potentially for generations to come — because the invidious discrimination experienced by Black Americans over a three-century span has not been undone.”

Nor can it be undone through race-neutral means, in the view of The Times’s Nikole Hannah-Jones. “A formula that uses class while disregarding race may be politically popular,” she wrote in 2013, “but many scholars say race remains so powerful a factor that a class-based system would seriously reduce Black and Latino representation at American colleges from their current levels.”

More recent reporting lends credence to those concerns: In briefs to the Supreme Court, both the University of Michigan and the University of California said that they have largely failed to build racially diverse student bodies since they were forced to abandon affirmative action despite spending hundreds of millions of dollars on outreach initiatives.

Still, even some supporters of affirmative action believe it has assumed too much importance in the fight for educational equality. Most college students in the United States attend schools that accept most applicants, and of the minority of schools that are selective, just 35 percent claimed in 2014 to consider race in admissions, according to a 2017 study.

In the words of Richard Thompson Ford, a professor at Stanford Law School, the fight over affirmative action is really a fight to democratize access to the “class credential” that elite colleges offer. But “the demand for an equal opportunity to elite status is almost a contradiction in terms,” he wrote in 2019. “A better egalitarian goal would be to level the social hierarchy that increasingly reserves a comfortable life to an elite few.”

My former colleague Jay Caspian Kang has suggested one way to do that: aggressively tax the multibillion-dollar endowments of elite universities and use the revenue to fund community colleges and state university programs.

“Nobody really seems to like the system we have now in the United States, with its brutal competition, its winner-take-all mentality and its undue focus on a handful of elite schools,” he wrote. “Why would we center so much of the conversation on places that most students will never even visit, when we could be building a more robust public system that educates everyone?”

Do you have a point of view we missed? Email us at debatable@nytimes.com. Please note your name, age and location in your response, which may be included in the next newsletter.

“The Changing Meaning of Affirmative Action” [The New Yorker]

“Asian American Students Face Bias, but It’s Not What You Might Think” [The New York Times]

“Affirmative Action Is Wrong. There’s a Better Way to Make Campuses Diverse.” [The New York Times]

“Affirmative Action Shouldn’t Be About Diversity” [The Atlantic]