The Supreme Court and the reality of racial preferences

PAUL WALDMAN, WASHINGTON POST

In a 6-2 decision, the Supreme Court today struck down a challenge to a Michigan law forbidding state universities from considering race in their admissions. No one should be surprised, given that one of the main projects of John Roberts’ tenure on the Court has been the dismantling of affirmative action wherever and whenever it might be found.

 

The majority’s ruling was brief, arguing that the key question in this case wasn’t whether affirmative action is constitutional, but whether it is constitutional for a state to abandon it if the state chooses. “This case is not about how the debate about racial preferences should be resolved,” Justice Kennedy wrote. “It is about who may resolve it.”

 

As a legal matter in this specific case, that judgment was perfectly reasonable. But since the rest of us aren’t Supreme Court justices, we’re free to look at what’s actually happening in the world and render a different kind of judgement. The Court, and Chief Justice Roberts in particular, sees issues of racial discrimination as simple and straightforward. “The way to stop discrimination on the basis of race,” he famously wrote, “is to stop discriminating on the basis of race.”

 

No problem there. He wrote those words, however, in a decision striking down efforts by school districts to desegregate their schools — an attempt to grapple with problems that persisted even after explicitly discriminatory policies departed from the law. But in the world of the man who during his confirmation hearings said the role of a Supreme Court justice was nothing more complicated than “calling balls and strikes,” every decision is easy, so long as the right people win.

 

When you look at polling on this question, the public looks somewhat confused. If you ask about affirmative action generally as a means of helping racial minorities, a majority of the public says its in favor. But if you ask specifically about college admissions and frame it as a choice between “merit” on the one hand and admitting allegedly unqualified minorities on the other (see this Gallup poll for an example), healthy majorities oppose affirmative action.

 

And that framing has come to dominate our thinking about this issue, though it has next to nothing to do with how things actually work. In the real world, if hundreds or thousands of black students have their opportunities constrained because of a system that places obstacles in their particular path, then most of us shrug and say, that’s just the way things are, and there isn’t anything that can or should be done about it. But if an affirmative action program should result in a single white student having to go to her second choice school? Then we must change the law, and move heaven and earth to make sure it never happens again.

 

Meanwhile, the preferences whites enjoy remain firmly in place. There have yet to be any successful laws or ballot initiatives to ban “legacy admissions,” in which applicants who had a relative who attended the university are given special preference. No one can come up with rational grounds for retaining this affirmative action for wealthy white people, yet universities all across the country do. And there are other only slightly less blatant forms of favoritism; for instance, the reliance on standardized test scores provides a boost for wealthy students, most of them white, whose parents can afford expensive test prep courses and tutoring. Again, no serious person contends that SATs or ACTs are a pure measure of “merit,” yet they continue to play a huge role in college admissions.

 

After the initiative in Michigan passed in 2006, black enrollment at the University of Michigan plunged by 30 percent. Were the missing black students lacking in “merit,” and was the university better for their absence? The Supreme Court says it isn’t their place to decide,...

.

WHY AFFIRMATIVE ACTION WORKS



Photograph of Abigail Fisher by Susan Walsh/AP Photo.

The best explanation of why we need affirmative that Esco has read. Why doesn't Mr. Menand argue i/f/o/t Supreme Ct. Then again the four righties aren't interested in logic anyway.


LOUIS MENAND THE NEW YORKER

Since last October, admissions officers at every selective college and university in the United States have been standing, transfixed, on the tracks, watching a great freight train bear down on them. The train was Fisher v. University of Texas at Austin, a challenge to an admissions policy at U.T. that considers race as one factor in deciding which applicants to admit. Today, at the last minute, the train was switched onto a siding. The question is whether it will stay there, and how long.
----
[A case, Grutter v. Bollinger,] concerned the admissions policy at the University of Michigan Law School. In an opinion by Justice Sandra Day O’Connor, the Court affirmed Justice Lewis Powell’s opinion for the Court in Regents of the University of California v. Bakke, in 1978. Powell said that setting racial quotas (as done by the U.C. Davis School of Medicine, to which Allan Bakke, who was white, had applied) is unconstitutional, but that race may be counted as a “plus” factor in college and university admissions....

In Grutter, the Court endorsed Powell’s view

that student body diversity is a compelling state interest that can justify using race in university admissions. The Court defers to the Law School’s educational judgment that diversity is essential to its educational mission. The Court’s scrutiny of that interest is no less strict for taking into account complex educational judgments in an area that lies primarily within the university’s expertise. Attaining a diverse student body is at the heart of the Law School’s proper institutional mission, and its “good faith” is “presumed” absent “a showing to the contrary.”

The language seems to cut two ways: it raises the necessity of subjecting race-conscious admissions policies to strict judicial scrutiny (since race is what is known, in constitutional law, as a protected class), but it also seems to defer to the university’s expertise in knowing how best to achieve a diverse student body. In Fisher, the Fifth Circuit evidently followed the latter interpretation, and assumed good faith on the part of the university. In remanding the case, the Supreme Court told the Fifth Circuit that it had improperly ignored the first part, the strict-scrutiny requirement. The remand may tighten the screws a bit, but it leaves Grutter intact.

In my experience, most people who are not academics themselves are highly suspicious of college-admissions policies. This usually has nothing to do with their politics. They just think that college admissions are no longer meritocratic, by which they mean no longer selecting applicants based on aptitude and academic achievement. My answer to these people (which rarely satisfies them) is that of course college admissions is not meritocratic in that sense, and it never was. (Neither is life, but that’s another matter.) In fact, critics of college admissions usually find a particular type of preference objectionable, and give a pass to other types that are as much or more offensive to meritocratic principles.
The biggest scandal in college admissions, from the meritocratic point of view, is the preference given to varsity athletes, an inequity by the standards of academic merit that has been thoroughly documented, and that involves a far greater number of admitted students every year than affirmative-action policies do. Yet almost no one seems to have a problem with athletes, because almost everyone believes (rightly or not) that a strong athletics program contributes to campus spirit, honors accomplishment that is worthy even though it happens not to be academic, and puts alumni and other donors in a giving mood. People seem to think that sports is just something colleges do.

But the same things are true of every “plus” factor that is used at selective schools. Legacies, the children of alumni, form what seems to be a particularly aggravating category of preference. But it can be argued that giving them preference fosters a sense of community across generations, maintains the institutionally bonding notion that each school has a special and non-transferable DNA, and makes alumni more likely to give, benefiting all students. Sometimes, the offspring of local bigwigs are admitted, on a similar rationale. Applicants with unusual gifts and achievements—artistic, entrepreneurial, charitable—that are not reflected in their S.A.T. scores and G.P.A.s are sought out and admitted.
People sometimes suggest that if we have affirmative-action policies in college admissions, they should give preference to applicants based on socio-economic class. Colleges do give such preference. A disadvantaged background is one of the factors that holistic admissions practices take into account.

Of all the factors that admissions offices might grant a plus factor to, race (or, in the language of college admissions, belonging to a U.R.M.—an under-represented minority) has by far the strongest educational claim. Going to school with varsity athletes and alumni offspring and tuba virtuosi doesn’t make the average college student learn better, but going to school with students who are not white improves the education of white students, and vice versa.
People often talk about affirmative action as strictly a benefit to the minority student. But it is equally a benefit to the majority student. It puts that student in intellectual contact with people who come to college with very different experiences and viewpoints and expectations from life. Dealing with that contact is one of the ways people learn how to think. Discussing “Huckleberry Finn” in an all-white or all-non-white classroom is completely different from discussing it in a mixed-race classroom. So is discussing race-conscious admissions policies.

One argument that has dropped out of the rationale for admissions policies that attempt to achieve racial diversity is the argument that affirmative action is a remedy for past discrimination. This must be because courts have not recognized this as an adequate response to the constitutional problem. But in 1976, two years before Bakke, eighty-three per cent of students in American higher education were white. Today, sixty per cent are white. That change is by no means all because of affirmative action, but it shows that, in the effort to give opportunity to all, higher education is doing its part. Are we there yet? Are Hispanics and African-Americans now adequately represented in the leadership of big corporations and in Congress and in the high-status professions, and can we stop fretting about diversity? Just look around.