Commentaries
Racial Preferences Are Falling

The Supreme Court's Schuette decision reflects the waning support for policies that favor certain groups just to increase "diversity."

By Roger Clegg

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April 30, 2014

Racial preferences have never been popular among most Americans, and in fact they are becoming less and less popular.  

One reason is the simple passage of time. Many people felt viscerally that some sort of affirmative action made sense 50 or 60 years ago, when Jim Crow had been the law until quite recently and the beneficiaries of preferences would be individuals who had actually been the victims of ugly and overt discrimination. Now, however, university admissions preferences go to kids who were born in 1996 and who live in a country with an African-American president.  

What’s more, it is a country that is increasingly multiethnic and multiracial. Over one in four Americans now say they are something other than simply “white.” Blacks are no longer the largest minority group: Latinos are, and the fastest growing ethnic group is Asian Americans.  And it’s interesting that the number of Americans who identify themselves as belonging to “two or more races” has grown by 32.0 percent. That doesn’t even count those Americans, like our president, who are multiracial but for whatever reason declined to identify themselves in that way on the census form. 

In such a country, it is simply untenable for our institutions to classify and sort people on the basis of skin color and national origin, and to treat citizens differently — some better, some worse — depending on which silly little box is checked.

In sum, it is no longer the case that Jim Crow–advantaged whites are being displaced by just-liberated African-Americans. Indeed, it is more and more the case that preferences are used to give an advantage to Latinos over Asian Americans — to such an extent that, as one Associated Press story documented, Asian American students try at all costs to avoid identifying themselves as such on their college admission applications. Now what is the historical justification for that?

Indeed, a recent effort to reinstate preferences in a state that had banned them – California – was defeated because of outrage among Asian Americans, who stood to lose the most from the reintroduction of politically correct discrimination.

But the fight against racial and ethnic preferences in university admissions is a multi-front war. It’s an issue not only for the in the court of public opinion but also in the political branches and the courts. 

Lately, the news on all three fronts has been good for those opposing this discrimination.  There’s no reason to think that the other side is about to give up, of course, but the good news suggests that the tide is running strongly against preferences. 

The good news in the political branches began with a ballot initiative in the state of Michigan. The Supreme Court’s April 22 decision in Schuette v. Coalition to Defend Affirmative Action By Any Means Necessary ruled that it did not violate the Fourteenth Amendment’s Equal Protection Clause when voters in Michigan approved (by a wide margin) a state ballot initiative that banned the use of racial and ethnic preferences in public university admissions, along with discrimination in government employment and contracting.

Any other outcome would have been ridiculous, and it is appalling that this issue should even have made it to the Supreme Court. As Justice Scalia wrote in his concurring opinion, “We confront a frighteningly bizarre question: Does the Equal Protection Clause of the Fourteenth Amendment forbid what its text plainly requires?”

It is equally appalling that at least two justices, Sotomayor and Ginsburg, would have ruled otherwise (we don’t know how Justice Elena Kagan, who was recused, might have voted).    Still, the Court’s ruling in the case means that the political branches are free to ban racial preferences. The litigation against Michigan’s ban on the use of racial preferences looks like a desperate military offensive to recover lost territory that fails. The Battle of the Bulge comes to mind.

In states with ballot initiatives, this avenue should and probably will be pursued anew. In states that don’t have the initiative process, the legislatures can pass statutes that accomplish the same end. And if action doesn’t take place at the state level, then local governments could pass these laws. (A recent paper I co-authored provides model language.)

This is also an area where Congress should act.  To be sure, Congress actually did ban these preferences when it passed the 1964 Civil Rights Act. Title VI of that statute categorically bans discrimination in all federally funded programs, which includes all public universities (and nearly all private ones). Unfortunately, the Supreme Court has ignored the plain language and meaning of this statute, so now Congress would have to pass additional legislation, clarifying the original statute. 

As for the courts, last summer there were high hopes that the Supreme Court might put an end to racial preferences when it ruled in Fisher v. University of Texas at Austin.  It did not do so, but it did make it even more difficult for schools to justify their use of discriminatory admissions criteria. In particular, the Court made it clear that reviewing judges must demand that schools consider nondiscriminatory ways to achieve the purported educational benefits of “diversity.”

A particular example would be to require documentation of how the educational benefits of considering race in admissions would be greater than considering the educational benefits that could come from considering other, nonracial factors. Exactly how is education improved by using race to choose students for “diversity” rather than using other characteristics, such as work experience, family income, parents’ occupations, geography, or anything else? If a nonracial admissions system could achieve similar benefits, then consideration of race cannot be said to have been “narrowly tailored” as Fisher calls for.

The same legal team that challenged preferences at the University of Texas is currently looking for plaintiffs to challenge, in particular, admissions at the University of Wisconsin, the University of North Carolina–Chapel Hill, and Harvard. Other organizations are gathering information on vulnerable universities, too. It’s almost a certainty that further legal challenges to the use of racial preferences will be mounted.

In the run-up to the Fisher case, we have also seen increased legal attention, even among erstwhile supporters of racial preferences, to two other objections to the continued use of racial criteria in admissions.  

The first was the overwhelming evidence that many of the supposed beneficiaries of affirmative action are actually hurt by it because of the “mismatch” phenomenon. That is to say, students who are given admission to a more selective college when they have substantially lower academic qualifications than the rest of their classmates will have trouble meeting the academic competition there. Instead of thinking only about the imagined benefits of racial preferences, people are now also thinking about this tangible cost. 

The second is an increasing sense that, if schools are trying to give some extra consideration to students who have faced disadvantages in life and can bring “diverse” perspectives and backgrounds to the university, it makes more sense to consider socioeconomic status rather than skin color. 

In conclusion, the fact of the matter is that the purported benefits of racial preferences are dubious.  It makes no sense to use race in 2014 as a proxy for social disadvantage, and the claims of “educational benefits” from random interracial conversations have never been compelling. 

Weigh against these “benefits,” on the other hand, the costs of using racial preferences, which are numerous, undeniable, and heavy. 

Among those costs: It is personally unfair, passes over better qualified students, and sets a disturbing legal, political, and moral precedent in allowing racial discrimination. It creates resentment; it stigmatizes the so-called beneficiaries in the eyes of their classmates, teachers, and themselves, as well as future employers, clients, and patients. It compromises the academic mission of the university, lowers the overall academic quality of the student body, and creates pressure to discriminate in grading and graduation. It papers over the real social problem of why so many African Americans and Latinos are academically uncompetitive. 

Racial preferences in college admissions might have seemed to be a good idea fifty years ago, but with increased scrutiny from the courts and skepticism among voters and politicians that they have beneficial results, they may not last much longer. Here’s hoping they don’t. 

 


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