Affirmative action about to be redefined?

The case for racial preferences in awarding places at US universities is no longer  about minorities held back by centuries of discrimination, says Simon Barber.

Rather, it is all about letting educators decide what will be best to prepare the youth for racial diversity. That, at any rate, is how proponents of affirmative action are framing the discussion as the matter is about to be heard by the US Supreme Court.

Solicitor-general Donald Verrilli, the Obama administration’s chief litigator, told the court last week: “The core of our interest is in ensuring that the nation’s universities produce graduates who are going to be effective citizens and effective leaders in an increasingly diverse society and effective competitors in diverse global markets.”

Just over half the Fortune 100 chimed in with an amicus brief. “The only means of obtaining a properly qualified group of employees,” they argued, “is through diversity in institutions of higher education which are allowed to recruit and instruct the best qualified minority candidates and create an environment in which all students can meaningfully expand their horizons.”

The case pits Abigail Fisher against the University of Texas. Ms Fisher, who is white, says her rights under the constitution’s 14th Amendment were violated when she failed to get in. The university says that while it does indeed take race into account in selecting candidates, it does so as part of a “holistic” review fully consistent with the court’s precedents, in particular Justice Sandra Day O’Connor’s opinion in the landmark 2003 case, Grutter v Bollinger. Writing for a slim 5-4 majority Justice O’Connor held that the University of Michigan Law School’s admissions strategy passed muster: it was adopted in “good faith”, did not rely on demographically-based quotas and was “narrowly tailored to a compelling interest in attaining a diverse student body (with a) critical mass” of minority students.

Opponents of affirmative action would like to believe that, with Justice O’Connor’s replacement by the far more conservative Justice Samuel Alito, there is now a critical mass on the court for banning race-based preferences altogether. They hope Ms Fisher will persuade a majority if not to reverse Grutter v Bollinger, then at least, in the words of Justice Sonia Sotomayor (who will not be part of that majority), “gut it”.

There is a school of progressive thought which would not mind seeing Ms Fisher prevail. In a new study for The Century Foundation, Richard Kahlenberg looks at how universities have been handling diversity in the seven states, including California, where racial preferences have already been banned by referenda, state legislatures or gubernatorial executive order. The news is good.

Responses include partnerships with disadvantaged schools, new race-neutral preferences for students from all difficult environments, no more automatic slots for offspring of alumni, and guaranteed places, regardless of test scores, for a fixed percentage of top students from all in-state public schools. Many of these are terrible, de facto segregated and disproportionately starved of resources.

“For people who care about social equality, all these new measures are intrinsically desirable,” Mr Kahlenberg writes. But they do not come naturally to university administrators because they are harder and more expensive to implement.

“While higher education’s vigorous defence of affirmative action on one level represents a sincere desire for greater racial equality, it has another less virtuous side to it, as racial preferences avoid the hard work of addressing deeply rooted inequalities and instead provide what (one critic) has called ‘racial justice on the cheap’ … recruiting fairly privileged students of colour is far less expensive than including low-income and working class kids of all races.”

Research by Derek Bok, a former Harvard president, found that 86% of African Americans at universities with selective admissions standards were either middle or upper class. At Ivy League schools, 41% of black students were not even African American, but immigrants from relatively advantaged backgrounds.

While it is invidious to invoke the voices of revered figures who can no longer speak for themselves in support of one’s favoured positions, it is interesting to conjecture what Dr Martin Luther King might have said of class, as opposed to race-based affirmative action. He did say, in calling for a Bill of Rights for the Disadvantaged in 1967, “it is a simple matter of justice that America, in dealing creatively with the task of raising the Negro from backwardness should also be rescuing a large strata of the forgotten white poor”. Simon Barber,