In May, we commemorate the sixtieth anniversary of Brown v. Board of Education and the end of de jure racial segregation in American public education. The Brown decision ushered in the end of legalized apartheid in the United States, but implementation of the decision took decades, and today, of course, our schools remain highly segregated by race and class—in fact if not in law.
The discouraging post-Brown history surely helps explain why Thurgood Marshall—who had argued Brown—abandoned his commitment to colorblind policy and strongly defended racial preference programs for minority students in higher education when he became a member of the U.S. Supreme Court. In the 1978 case Regents of the University of California v. Bakke, Marshall supported a racial quota that set aside 16 of 100 seats at UC Davis Medical School for minority students. In making the case for racial preferences, Marshall explained that past discrimination left a crippling legacy and cited data showing that blacks were almost four times as likely to live in poverty as whites and were twice as likely to be unemployed. In the Bakke deliberations, Marshall privately told other justices that racial preferences would be necessary for another 100 years.
More than 30 years later, a former Supreme Court clerk to Justice Marshall, Georgetown University Law Professor Sheryll Cashin, makes a powerful case that it’s time to rethink her former boss’s support for racial preferences. The place to begin, she argues in her brilliant new book, is an affirmative action that responds directly to the failure of the Brown decision to desegregate schools.
In Place, Not Race: A New Vision of Opportunity in America, Cashin calls racial preferences a crude instrument that tends to benefit wealthy students of color; alienates working-class whites who should be part of the progressive alliance; and is, in any event, legally and politically unsustainable. Skillfully blending her personal story as an upper-middle-class black professional with a wide range of research on what constitute the biggest barriers to success today, Cashin provides a compelling blueprint for a new, much stronger, form of affirmative action based on actual disadvantage.
Many proponents of affirmative action, like Justice Marshall, cite high poverty rates among minority students in part to paint a sympathetic picture of applicants who have overcome obstacles. But in practice, Cashin notes, universities “create optical blackness but little socioeconomic diversity.” She cites Walter Benn Michaels’s suggestion that the war over affirmative action is a battle “over what skin color the rich kids have.” Cashin notes that today, the achievement gap by income is twice the size of the gap by race, and that affluent parents spend nine times as much money developing the talents of their children as low-income parents. Today’s affirmative action policies, she writes, enable “high-income advantaged blacks to claim the legacy of American apartheid.” Class-blind racial preferences fail the fairness test, she suggests, but they also undercut the legal rationale for affirmative action: creating a diverse learning environment. At Dartmouth, where the minority students often come from prep schools, one former student (who is biracial) tells Cashin, “The person I had most in common with was a white guy from a small town.”
Cashin also argues that affirmative action policies that largely benefit advantaged minorities prop up a generally unfair system that includes legacy preferences, non-need merit aid, and an overreliance on standardized tests. The “optical diversity” that racial preferences create “undermines the possibility that elite colleges will rethink exclusionary practices.” A superficial “diversity by phenotype puts no pressure on institutions to dismantle underlying systems of exclusion that propagate inequality.”
Cashin, who has long supported racial equality, acknowledges, “what I am writing is sacrilegious to the civil rights community.” But despite the fact that her own sons will continue to encounter racism, she says, she simply cannot justify preferences for them given the economic and educational privileges they enjoy.
Cashin is deeply concerned by the political price racial preferences exact on the progressive coalition. Considering race in college admissions is opposed by almost two-thirds of Americans and a majority of Democrats. But working-class whites are especially skeptical. These voters “are much closer in circumstances to working-class blacks and Latinos than they are to whites higher up the income scale,” she notes. While academics speak of “white privilege,” these voters “don’t feel privileged, and they are not privileged in the globalized economy.”
For years, Cashin writes, Southern gentry sought to prevent interracial cooperation by pitting working-class blacks and whites against each other. So why, she asks, have liberals embraced a policy that “pushes away potential allies” in a way that can only make Karl Rove smile? Why expend energy “on a policy that primarily benefits the most advantaged children of color, while contributing to a divisive politics that makes it difficult to create quality K–12 education for all children”?
As a practical political and legal matter, moreover, Cashin sees little evidence that racial preferences will survive much longer—much less for the 100 years Justice Marshall envisioned. Several states have banned racial preferences at public universities, usually by voter referendum. The Supreme Court recently affirmed, by a 6-2 vote, the right of voters to end racial preference policies in a case involving Michigan’s ban of affirmative action at public universities. And while Cashin does not herself believe that the Constitution requires universities to be colorblind, the Supreme Court’s 2013 affirmative action decision, Fisher v. University of Texas, requires that colleges use race as a last resort in achieving racial diversity. This requirement that universities first look to race-neutral alternatives to affirmative action, has considerable teeth, says Cashin. “With each passing year, as demographic change and experimentation enhance possibilities for achieving diversity without using race,” she writes, “the challenge of surviving lawsuits filed by disgruntled applicants will grow more onerous.”
So what is to be done? Cashin suggests circling back to the limitations of Brown, and the new manifestation of segregation: by income. The neighborhood a child grows up in matters immensely to her life chances, Cashin notes. “Five decades of social science research demonstrate what common sense tells us. Neighborhoods with high poverty, limited employment, underperforming schools, distressed housing, and violent crime depress life outcomes.” Living in severely disadvantaged neighborhoods impedes verbal cognitive development and lowers high school graduation rates by as much as 20 percent. “I call it the undertow,” she writes. We never desegregated schooling fully by race, Cashin notes, and now residential divisions by income group are increasing. Rich and poor are pulling apart. Indeed, she writes, “College graduates living in America’s most highly educated metro areas are more residentially isolated than African Americans.”
Black and Latino families with incomes above $75,000 are exposed to higher poverty neighborhoods than poor whites making less than $40,000 annually.
Cashin proposes giving a leg-up in college admissions to students of any race who grow up in economically disadvantaged neighborhoods and attend high poverty schools. This new form of affirmative action offers three advantages, she suggests.
First, looking at actual disadvantage will help remedy our nation’s brutal history of discrimination and will disproportionately benefit students of color in a manner that the Supreme Court will support. Place in America remains highly racialized. Less than one-third of black and Latino children get to live in middle-class neighborhoods, compared with 60 percent of white and Asian children. Even black and Latino families with incomes above $75,000 are exposed to higher poverty neighborhoods than poor whites making less than $40,000 annually.
Second, while neighborhoods are racialized, the program would help actual strivers who have overcome the impediments of living in a high-poverty neighborhood. While most would be students of color, not all would be. As Cashin notes, “whites who do live in impoverished environs or attend high-poverty schools are no less deserving of special consideration.” She concludes: “Place, although highly racialized, now better captures who is disadvantaged than skin color.”
Third, place- and class-based criteria would not divide a progressive, multiracial coalition; quite the contrary, it would reinforce the coalition. In Texas, for example, when a lower court temporarily struck down racial preferences at UT Austin, a plan to admit students from the top 10 percent of every high school class, irrespective of SAT or ACT scores, won support from urban minority legislators and rural working class white lawmakers. The coalition has stuck despite efforts from wealthy white suburbs to severely constrain it.
While some were skeptical that students admitted under the 10 percent plan, or class-based affirmative action, could compete academically once on campus, recent research finds that such students can perform at very high levels. Indeed, Cashin notes, Stanford’s Caroline Hoxby recently found that every year there are between 25,000 and 35,000 very high-achieving low-income students, some 3,300-4,600 of whom are black or Latino, who do not now enroll in selective colleges. After Amherst College, under the leadership of President Tony Marx, raised the percentage of Pell grant students to 23 percent, students excelled. This is not surprising as these talented low-income strivers have shown the perseverance to overcome obstacles; they have not been “shot out of a cannon” by wealthy parents, as Amherst’s admissions dean Tom Parker notes.
Some criticize the 10 percent plan, noting that it only produces racial diversity because of segregation. If a university wants racial diversity, why not just allow it to consider race directly?
But this thinking has it exactly backwards, Cashin notes: While the 10 percent plan did produce levels of black and Latino representation comparable to the levels that racial preferences had produced in the past, a very different subset of black and Latino students benefitted. The new beneficiaries were more likely to be working-class and were often the actual victims of Brown’s failure to desegregate primary and secondary education. Some critics worry that families will game the 10 percent system by placing their children in less competitive high schools. But once again, the criticism misses the target, Cashin says. Such potential movement has “the salutary benefit of encouraging racial and socioeconomic integration in low-opportunity neighborhoods”—something public policy should encourage.
Cashin would couple place-based affirmative action with policies to eliminate unfair practices, such as the use of legacy preferences and the granting of financial aid based not on need but academic merit. Georgia’s merit-based HOPE scholarship ended up benefitting a number of wealthy students who would have gone to college with or without the aid, Cashin says, wryly noting that the scholarship did succeed in increasing car sales. These are sound recommendations, but I think Cashin goes too far when she says universities should make submission of SAT results optional or eliminate their consideration entirely. There is a far more compelling case for considering scores in the context of what obstacles a student has overcome than ignoring altogether a valuable piece of information that supplements high school grades (whose meaning can vary from school to school.)
But overall, Cashin’s agenda provides a huge step forward from those liberals who would hold on to Justice Marshall’s plan for a century of racial preferences. While seemingly progressive, such policies in practice are deeply conservative, she correctly contends. They perpetuate a black elite alongside a white elite, without promoting social mobility, and they hinder cross-racial populist coalitions that could profoundly change society. “What we need is a politics of fairness,” she says, “one in which people of color and the white people who are open to them move past racial resentment to form an alliance of the sane.”