The U.S. Supreme Court’s decision in the big affirmative action case, Fisher v. University of Texas, was a win-win for liberals, even if many don’t realize it.
As I noted in a recent piece in the Chronicle of Higher Education, Fisher held that universities may still pursue racial diversity, but it said that before using race, universities have to demonstrate that race neutral strategies—like giving a leg up to low-income students of all races, or admitting students in the top percent of their high school class—won’t work. Importantly, the court said it would no longer take universities at their word that alternatives won’t produce diversity; judges should give universities no deference on that question.
This is a victory for liberals because today, universities often provide large racial preferences to minority students who are often fairly well-off and exclude economically disadvantaged students of all races. Race-neutral strategies are much more likely to aid low-income and working-class students of all races.
But since the decision came down, many liberals have been complaining. Oddly, people who are normally strong supporters of social mobility—like Thomas Kane and James Ryan of Harvard University writing in the Chronicle of Higher Education, and Michael Kinsley, writing in The New Republic magazine—have raised a host of objections to employing racial proxies or counseled universities on how to try to avoid them.
Right after the decision came down, Kinsley wrote that the Supreme Court’s embrace of racial diversity but its disfavoring of racial preferences was illogical. “The best way to increase the number of minority students is to look for, recruit and admit minority students. If your goal is, say, 20 percent minorities in your classroom, what difference does it make how you get there, and why is it morally superior to pretend you’re looking at other factors when what you really care about is race?”
Racial proxies are superior for two reasons, which liberals, especially, should appreciate. The great liberal advance of the 1960s was the idea that race should not count in who gets ahead in a democratic society. One danger of the direct use of race—even to advance members of groups that have been subjugated throughout history—is that it makes more acceptable racial group thinking. Admissions officers who say—correctly—that, as a statistical matter, a white student will add less to the classroom discussion than a black student, make it easier for the police officer, also relying on statistics, to engage in racial profiling by employing race as just “one factor” among many. Moreover, as a political matter, liberals, especially, should worry about a policy that tells working class-whites they should think of themselves in terms of race rather than class.
Moreover, Kinsley’s focus on the bottom line result—20 percent minority students—misses enormous differences in the way that diversity is achieved. A plan that accomplishes 20 percent minority representation by giving a leg up to economically disadvantaged students of all races rewards students who have overcome economic odds and will result in far more economic diversity than today’s racial affirmative action plans. Eighty-six percent of African Americans at selective colleges have been found to be from middle- or upper-class backgrounds and whites are even richer.
Kinsley further argues that class-based affirmative action “will not eliminate most of what angers some people about race-based affirmative action. Someone, black or white, will still be jumping ahead of you in the queue for a job or a place in school.” Of course, a subset of the population will object to any kind of affirmative action, but polls find Americans support income-based preferences by two to one, the same margin by which they oppose racial preferences, because they see it as fair to consider the economic obstacles an individual has overcome in life alongside her academic record.
Kinsley goes on to complain that it’s hard to define economic disadvantage. “Any attempt to assign people to an official ‘social class’ for the purpose of handing out government or court-ordered goodies is doomed to ugly failure.” Really? Millions of kids get free and reduced price lunches because their families fall below a certain income threshold, as do beneficiaries of Medicaid and a host of other programs. And admissions officers make difficult judgment calls all the time; that is what they do.
Earlier this week, my friends Thomas Kane and James Ryan provided a more nuanced discussion of Fisher than Kinsley but largely ended up in the same place, advising universities on the various ways they could keep on admitting based on race rather than employing costly affirmative action programs for economically disadvantaged students.
Kane and Ryan’s first line of defense is that income-based affirmative action won’t produce sufficient racial diversity, which is true but also beside the point. Researchers have long found that black and Latinos of the same income level as whites on average face extra obstacles: they are much more likely to live in concentrated poverty, and they have much less wealth. Employing these additional factors in admissions is the right and fair thing to do, and will also produce greater racial and ethnic diversity. In my analysis with Halley Potter, seven out of ten leading universities where race was banned were able to produce comparable or greater levels of racial and ethnic diversity employing race neutral strategies as they achieved in the past using race.
But Kane and Ryan then offer a second-level defense: even if race-neutral strategies do produce racial diversity, under Fisher, universities can argue that such programs are unworkable because the costs are too high. These costs might include reduced academic quality (because preferences for low-income students depress median SAT scores) or financial burdens (associated with the need to provide aid for low-income and working-class students).
Kane and Ryan are correct, of course, that opening the doors of selective colleges to meaningful numbers of low-income students entails costly tradeoffs, which helps explain why rich kids outnumber poor kids by twenty-five to one on selective campuses. But it’s an open question, to say the least, whether the Supreme Court will accept these tradeoffs as a justification for counting skin color in admissions. The University of North Carolina, for example, suggested in an amicus brief in Fisher that a Top 10 Percent plan (in which the top 10 percent of graduates at each high school in the state receive admission) would actually increase diversity modestly over the current race-based system. The proportion of “non-white and underrepresented students” would rise from 15 percent to 16 percent. But the average SAT of entering pupils would decline from the 91st percentile to the 86th. This might be seen as catastrophic in Chapel Hill, but it’s hard to believe the Supreme Court would view it that way.
Likewise, the University of Texas was able to significantly increase socioeconomic and racial diversity under its Top 10 Percent plan compared with discretionary admissions (including affirmative action), and yet academic performance remained high. In 2011, 23 percent of students admitted under the percentage plan came from families making less than $40,000 a year, compared with 10 percent of those admitted under the discretionary plan. And yet research by Sunny Niu and Marta Tienda of Princeton has found that students admitted under the percentage plan have performed quite well academically.
By the same token, the Supreme Court has been reluctant to allow fiscal concerns to justify racial distinctions by government. Segregationists argued—correctly—that desegregation under Brown v. Board of Education would fuel white flight to private schools and thereby reduce financial support for public schools in the short run. But the courts refused to justify race-based policies on these grounds. Of course, segregation is a far cry from affirmative action, but given that the Supreme Court applies the same strict scrutiny to racial preferences for black students as racial discrimination against them, it’s not clear the Court will allow a university to count skin color in admissions in order to avoid the expenditure of funds for scholarship students.
My fellow liberals, too often, have become fixated on preserving familiar means employed to produce racial diversity—the explicit consideration of race—and lost sight of the ultimate goals: racial and economic inclusion, social mobility, and genuine fairness. The Fisher decision will bring about new—and better—approaches, and that should be celebrated.