After decades of contention, most observers agree that affirmative action in the form of racial preferences in college admissions will be declared unconstitutional by the U.S. Supreme Court. There are indeed few arguments left to support it. A supermajority of Americans opposes it, with 74 percent of Americans, including 58 percent of Blacks, indicating in the most recent Pew Research poll that race or ethnicity should not be a factor in college admissions.[1] Racial preferences do not help the disadvantaged. As even a supporter of affirmative action writes: “Seventy-one percent of Harvard’s Black and Hispanic students come from wealthy backgrounds. A tiny fraction attended underperforming public high schools. First- and second-generation African immigrants, despite constituting only about 10 percent of the U.S. Black population, make up about 41 percent of all Black students in the Ivy League, and Black immigrants are wealthier and better educated than many native-born Black Americans.”[2] As these statistics indicate, the racial categories do not correlate with disadvantaged status. They are even more problematic as a proxy for diversity. It is not clear why some markers of identity such as race and ethnicity should be considered significant for viewpoint diversity while others, such as religion, should not. Politically, university faculty have become much less diverse in terms of party affiliation over the last several decades of affirmative action policy, with a documented 11.5 to 1 ratio of Democrats to Republicans at leading universities in 2016.[3] Moreover, because the defense of affirmative action has become a marker of anti-racism, the university support for the policy has suppressed opposing viewpoints by branding them as racist or sexist and not worthy of discussion, thus further reducing viewpoint diversity by encouraging pervasive self-censorship.[4]
If racism is still a problem, then affirmative action is not the solution. As Moishe Gonzales remarked over twenty years ago in Telos 106:
the mere elimination of past discriminatory practices by guaranteeing that institutional life is color-blind does not result in a level playing field: the past continues to intrude on the present in the form of consequences sedimented in every crevice of both social and biological reality. Yet, it is impossible to undo these sedimented injustices. These deep levels of social life cannot be modified by formal and administrative policies. They can only by altered by informal, non-procedural, non-legislative activities which escape or are mostly opaque to administrative management. This predicament may be frustrating for those who would want to bring about the radical changes needed to create a level playing field by administrative policies. Attempts to introduce such change through the logic of administrative rationality end up as either counter-productive or self-destructive. Worse yet, if those who believe in the persistence and pervasiveness of racism are correct, then it is unlikely any policy, let alone affirmative action, can be properly administered and bring about the intended objectives.[5]
Rather than racially based preferences, the United States should have stayed the course with the commitment to equal opportunity, which, as Hugh Murray indicates in Telos 105, was the original intent of the Civil Rights Act of 1964, but which was subverted later on by the Equal Employment Opportunity Commission.[6]
Rather than affirmative action, it may be that benign neglect of racism after the civil rights movement may have been the best policy. We have an indication of the wisdom of such an approach in the example of discrimination by religion, in which the absence of affirmative action for religion may have led to better outcomes in terms of eliminating discrimination. Though anti-Catholic and anti-Jewish biases were widespread in the United States up through the mid-twentieth century, these biases have now disappeared without any government intervention. In fact, as David E. Bernstein notes, an affirmation action policy for religious affiliation might have led to more discrimination against those religious groups in a situation today in which the current U.S. president, the Speaker of the House, the Senate majority leader, and most Supreme Court justices are either Catholic or Jewish.[7] If proportional representation by religion were to be used as a method for combatting discrimination, the result could have been a push to reduce the number of Catholics and Jews in positions of political leadership. The example of religion indicates that it is possible that the biggest hindrance to the eradication of racial discrimination in the last fifty years may have been affirmative action itself.
Whatever the effect of affirmative action, it is no longer socially acceptable in the United States to be considered a racist. As Shelby Steele has stated, “obvious to millions of Americans, is the fact that America has made more moral progress in the last 60 years regarding race than any nation, country or civilization in history.” Born in 1946, Steele has experienced first-hand the progress the United States has made in the area of racial discrimination. At the same time, this progress in the eradication of racism has been accompanied by regression in the economic situation of Black Americans, and he suggests that affirmative action was one of the causes of this decline. “[Steele] points to affirmative action and diversity—’the whole movement designed to compensate for the fact that blacks were behind’—and says that blacks today have worse indices relative to whites in education, income levels, marriage and divorce, or ‘any socioeconomic measure that you want to look at’ than they did 60 years ago.” Rather than affirmative action, Steele suggests that Black Americans “should have been left alone,” so that they might discover “other talents, other attitudes, other ideas of responsibility.”[8]
To be clear, the abandonment of racial preferences for college admissions would likely lead to a reduction in the numbers of Blacks and Hispanics gaining admission to the most elite universities, as was the case in California when the passage of Proposition 209 (banning racial preferences) led to a reduction in admission rates for these groups.[9] The effect of Proposition 209 in terms of policy, though, was to shift attention toward outreach as well as the improvement of outcomes in primary and secondary education. The real problem that Blacks and Hispanics face in gaining access to the University of California is not on the level of admissions decisions but at the level of their preparation in primary and secondary school. In 2010, only 18 percent of the Black and Hispanic students who started high school four years earlier had finished the courses required for applying to the University of California or the California State University systems, and then only 8 percent ended up actually applying. By comparison, 40 percent of the students from other groups who started four years earlier had completed the required college prep curriculum and 25 percent applied.[10] University-level affirmation action cannot make up for the failures of the K–12 education system, and the most effective way to improve admissions rates for Blacks and Hispanics at the University of California would be to improve their performance in primary and secondary schools to the point where more of them could apply. But as opposed to the quick but ineffective bureaucratic fix of affirmative action racial preferences for college admissions, improving K–12 outcomes will require sustained efforts on the part of families, local schools, and community organizations such as churches and youth groups. By forcing us to confront these challenges, the demise of affirmative action might lead to the kinds of outcomes that its implementation could not.
1. Vianny Gómez, “U.S. Public Continues to View Grades, Test Scores as Top Factors in College Admissions,” Pew Research Center, April 26, 2022.
2. Roland G. Fryer Jr., “Affirmative Action in College Admissions Doesn’t Work—But It Could,” Washington Post, October 31, 2022.
3. Mitchell Langbert, Anthony J. Quinn, and Daniel B. Klein, “Faculty Voter Registration in Economics, History, Journalism, Law, and Psychology,” Econ Journal Watch 13, no. 3 (September 2016): 425. John M. Ellis cites this source as well as several others that show a trend in the last fifty years of a continual decrease in diversity of opinion in terms of party affiliation. John M. Ellis, The Breakdown of Higher Education: How It Happened, the Damage It Does, and What Can Be Done (New York: Encounter Books, 2020), pp. 25–36.
4. See Ellis, The Breakdown of Higher Education, pp. 20–23.
5. Moishe Gonzales, “Affirmative Action and its Discontents,” Telos 106 (Winter 1996): 164.
6. Hugh Murray, “Race and Social Science,” Telos 105 (Fall 1995): 175–76.
7. Kyle Peterson, “The Weekend Interview with David E. Bernstein: Affirmative Action Mocks Ethnic Diversity,” Wall Street Journal, October 29, 2022.
8. Tunku Varadarajan, “The Weekend Interview with Shelby Steele: How Equality Lost to ‘Equity,'” Wall Street Journal, February 13, 2021, A13.
9. William C. Kidder and Patricia Gándara, Two Decades After the Affirmative Action Ban: Evaluating the University of California’s Race-Neutral Efforts (n.p.: Educational Testing Service, 2015), p. 17.
10. Ibid., p. 6.
