LEGAL AFFAIRS APRIL 18, 2013
The Supreme Court made clear last month that it would keep affirmative action racial preferences on the front burner of the national conversation for at least the next year. This autumn, the Court will review a federal appeals court’s 8-7 decision striking down a 2006 Michigan voter initiative that banned racial preferences in state university admissions. Meanwhile, the justices are drafting their opinions in a reverse-discrimination lawsuit by a disappointed white applicant to the University of Texas that was argued last October. That decision, the first major constitutional challenge to racial preferences since 2003, is expected by June 28.
With four ardent conservative opponents of racial preferences likely to be joined by Justice Anthony Kennedy—who has never upheld a racial preference—the Court seems likely to strike down the Texas program but not likely to outlaw racial preferences entirely. The Court also seems likely to reverse the federal appeals court decision in Michigan and uphold the state's 2006 initiative banning racial preferences in state programs. (The issue there is not whether it's unconstitutional for universities to use racial preferences excessively, but whether it's unconstitutional for voters to prohibit them entirely.)
The big question, however, is whether the Court will rule so narrowly that its decisions will have little impact outside Texas and Michigan, or will, for the first time, impose serious restrictions on the very large racial preferences that are routine at almost all of the nation's selective universities. Will these cases mean a dramatic overhaul, and shrinkage, of race-based affirmative action as we know it?
The question has never been more important or more complicated. A rapidly growing body of social science evidence shows that admissions preferences cause great harm to many of the supposed beneficiaries, and that such racial preferences make socio-economic inequality worse, not better. Racial preferences typically produce freshman classes with big SAT and GPA gaps among black, Hispanic, white, and Asian students. At the University of Texas, for example, the black-Asian mean SAT gaps have run above 450 points out of a total possible score of 2400. And studies suggest that many colleges systematically discriminate against high-achieving Asians, as they once did to Jews, to hold down their admission numbers.
Students are much more likely to form friendships in college with other students whose level of academic preparation is similar to their own.
The two pending cases, and others, have focused on universities’ discrimination against whites and Asians, but the justices must be aware of recent research that casts doubt on the traditional presumption that racial preferences benefit recipients. For example, studies have shown that disproportionate percentages of preferentially admitted black freshmen who aspire to major in science and other tough subjects are forced by bad grades to move to softer majors—and that they would be more likely to achieve their ambitions had they gone to less elite schools for which they were better qualified.1
As for the benefits to white students, I don’t doubt that exposure to people of different races improves everyone's education if it occurs naturally. But engineering diversity through racial preferences aggravates racial stereotypes and resentments and often leads to self-segregation and social isolation, as detailed in Russell Nieli’s powerful 2012 book, Wounds That Will Not Heal. Another study by Peter Arcidiacono and colleagues shows that students are much more likely to form friendships in college with other students whose level of academic preparation is similar to their own.
Social science evidence now shows that while passed-over whites and Asians suffer (modestly and temporarily, in my view) from race-based affirmative action, the more seriously damaged victims of large racial preferences are the many good black and Hispanic students who are doomed to academic struggle, and damaged self-confidence, when put in direct competition with academically much-better-qualified students. Universities misleadingly assure these students that they will do well, while ignoring and seeking to suppress evidence showing the enormous size of their preferences and poor academic results. No university of which I am aware, for example, tells its racial-preference recruits that more than half of black students end up in the bottom twenty percent of their college classes and the bottom ten percent of their law school classes.2 Racial preferences as used today pervert a once-egalitarian cause by pushing many fairly affluent black and Hispanic students ahead of working-class and poor Asians and whites. So addicted are the universities to racial preferences, and so fearful are most politicians of being trashed as racists, that the Supreme Court may be the only institution that could restore the original ideals of affirmative action.
I hope that in the Texas case, or perhaps in future cases, the justices will order two modest reforms: order schools to disclose data showing the size, operation, and effects on academic performance of their racial preferences; and mandate that universities stop preferring blacks and Hispanics over better-qualified Asians and whites who are also less well-off.3 The first reform would equip admitted applicants and policymakers alike to make better-informed decisions. The second would provide healthy incentives for selective schools both to enroll more outstanding working-class and poor students and to reduce the mismatch problem.
It goes without saying that educational gaps are the biggest reason for the racial and socioeconomic inequality that cause such deep wounds in our social fabric. But the evidence shows that racial preferences make things worse, not better, by setting up many of our best black and Hispanic students for academic frustration, by neglecting our most promising working-class and low-income students, and by papering over the real problem.
The real problem is the huge racial gap in early academic achievement symbolized by the undisputed fact that the average black twelfth grader has acquired no more academic learning than the average white eighth grader. The real solution is to improve the education received by these children from birth through high school. Every bit of energy that is now being spent on sustaining a failed system of racial admissions preferences would be far better invested in teaching kids enough to make them academically competitive when they arrive at college.