University Admissions and Affirmative Action

Affirmative action is under legal attack. Courts should uphold affirmative action and empower universities to be even bolder in admissions decisions. Moreover, universities should adopt economic affirmative action in addition to, or in lieu of (should race-based affirmative action be declared illegal), race-based affirmative action.

I. The Legal Fight

Race-based affirmative action is under attack. Students for Fair Admissions (SFA) sued Harvard University, filing a motion for summary judgement in June, alleging that the University engages in ‘racial balancing’ in violation of Title VI of the Civil Rights Act of 1964.[1]

SFA’s racial balancing claim is straightforward.[2] Asian American applicants include more highly qualified candidates, along comparable quantitative measures like grade point average, test scores, and athletic achievement, than other applicant groups. Yet Asian Americans are consistently scored lower than other candidates are on qualitative measures assessing personal qualities, thereby lowering Asian Americans’ overall ratings. SFA alleges that the Admissions Office policy with respect to qualitative measures was implemented to keep the number of Asian Americans admitted each year constant. Asian American admittance rates are the lowest among any racial group, declining from about 10% in 2000-2003 to about 5% today, as the number of applicants increased. SFA claims that, on quantitative academic measures alone, Asian Americans should comprise approximately 50% of Harvard’s most recent freshman classes. Instead, after incorporating Harvard’s race and ‘holistic’ criteria, Asian Americans comprise a consistent percentage of Harvard’s incoming freshman class every year:

Class	Percent of the Overall Class that is Asian American
2018	20%
2017	20%
2016	21%
2015	18%
2014	18%
2013	18%
2012	19%
2011	20%
2010	18%
2009	18%

Race balancing may violate Title VI of the Civil Rights Act of 1964. It reads, “[n]o person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.”[3] Facially, then, if SFA can prove that Asian Americans were systematically excluded from Harvard because of their status as Asian Americans, then Harvard’s admissions policy is in serious jeopardy. Most worrisome for Harvard, courts apply ‘strict scrutiny’ to race-based admissions policies, the most judicially intrusive type of review. Strict scrutiny requires Harvard to clearly show that its “purpose or interest is both constitutionally permissible and substantial, and that its use of the classification is “necessary . . . to the accomplishment” of its purpose.”[4] It is undisputed that Harvard receives Federal funds.

However, this case is not the first time race-based admissions policies have been litigated, and the Supreme Court has developed doctrine on which Harvard may justify its policy. First, race-based affirmative action is constitutional.[5] Second, a university is accorded deference in its “judgment that such diversity is essential to its education mission.”[6] Diversity just cannot be defined as mere racial balancing and there must be a reasoned, principled explanation for the academic decision. Still, strict scrutiny requires a reviewing court to verify that it is “necessary” for the university to use race to achieve the educational benefits of diversity.[7] The reviewing court must ultimately be satisfied that no workable race-neutral alternatives would produce the educational benefits of diversity.

II. A Question of Purpose

At the heart of affirmative action lawsuits is a clash of norms.

On one hand, affirmative action is one of America’s most prominent racial integration policies. John F. Kennedy first endowed ‘affirmative action’ with its modern connotation on May 6, 1961 when, in Executive Order 10925, he exhorted government contractors to “take affirmative action to ensure that applicants are employed and that employees are treated during employment without regard to their race, creed, color, or national origin.”[8] Affirmative action expanded from labor into education with the Supreme Court’s decision in Green v. County School Board of New Kent County,[9] which required school boards to plan to end segregated schools. The Supreme Court then blessed university affirmative action in Regents of Univ. of Cal. v. Bakke, in 1978. A white applicant challenged U.C. Davis medical school’s reservation of 16 of its 100 spots for minorities. The Court held that, although quotas violated the 14th Amendment, race was a valid consideration for universities promoting educational diversity.[10]

Due in no small part to affirmative action the racial makeup of American universities transformed. According to the National Center for Education Statistics between 1976 and 2008 Hispanic American undergraduate enrollment, as a percentage of total students enrolled in the country, increased from 4% to 13%, Asian Americans from 2% to 7%, and African Americans from 10% to 14%.[11] Meanwhile, Caucasian enrollment fell from 82% to 63%.[12] These percentages reflect America. The 2010 census reports that Caucasians are 72%, Hispanic Americans 16%, African Americans 13%, and Asian Americans 5% of the population.[13]

There are, however, disturbing underlying inequities. In an examination of racial diversity at Forbes America’s Top Colleges, the wealthiest schools on the list were the most racially diverse and yet still had under representative student bodies.[14] Carnegie Mellon’s African American students were only 3% of its student body.[15] Dartmouth College’s African American and Hispanic American populations made up only 5% and 7%, respectively, of their classes.[16] Meanwhile, looking back at SFA’s lawsuit, Asian Americans, who are 5% of the population, are 20% of Harvard’s incoming freshman class. These data suggest that African American and Hispanic university enrollees cluster in less prestigious (outside Forbes America’s Top Colleges, at least) institutions. Enrollment differences across universities matter. “Ten years after starting college, according to data from the Department of Education, the top decile of earners from all schools had a median salary of $68,000. But the top decile from the 10 highest-earning colleges raked in $220,000 . . . and the top decile at the next 30 colleges took home $157,000.”[17] Therefore, universities are both substantially more diverse, in institutions themselves and across the sector, and racial inequality is still pervasive.

The continued segregation of racial opportunity, especially the shunting African and Hispanic Americans to less prestigious schools, highlights the need for race-based affirmative action. It is not hard to draw straight lines from the systemic inequality of slavery through Reconstruction and Jim Crow to today.[18] Similarly, the dynamics hindering Hispanic American success run from the Mexican-American War, when America invaded Mexico City, through Big Stick foreign policy to the xenophobic rhetoric leveled against asylum-seekers from Central America today. This social context places a distinct obligation on America’s institutions to continue to try to alleviate the effects of pervasive historical subordination. In fact, with this history in mind, it might be commendable to bless or impose university race quotas to provide proportional access to America’s most life-altering institutions, the Harvard, Yale, and Stanford’s of the world, something that has never existed for African or Hispanic Americans.

On the other hand, SFA founder and President Edward Blum and others want America’s universities to address its racial quagmire through more race-blind methods. There are two admirable goals underlying SFA’s side of the lawsuit.

First, Mr. Blum advances the notion that America is a country that strives to be race-neutral and meritocratic. The sentiment is laudable and benefits from its reflection in Civil Rights Act language. Unfortunately, the idealist sentiment is fatally divorced from context, especially the voluminous social science research showing the disadvantages that accrue from single parent homes,[19] lower wealth and income,[20] and longer commutes,[21] among other things. All of these forces disproportionately affect African American and Hispanic children relative to their Asian and Caucasian peers.[22] This is a clear case where equal treatment does not equate to equal opportunity.[23] Unless Americans are prepared to invest heavily in early childhood education and other social services for less wealthy Americans, race-blind university admissions will not even facially resemble a meritocratic process and the American university will continue to be another institution that perpetuates racial inequality.

Second, emphasis on race-based affirmative action distracts from the growing need for class-based affirmative action. We need to focus on class entrenchment. Economist Thomas Piketty laid out the rise of wealth inequality in the United States and Europe in Capital in the 21st Century. There are myriad reasons to believe that today’s wealthy Americans will successfully perpetuate their familial status through tax-exempt college savings, retirement savings, annual gifts and inheritance, low tax capital gains, and ‘public’ school funding through property taxes, among many other policies. Stagnating mobility potentially hurts economic growth,[24] increases economic volatility,[25] undermines democracy,[26] and impinges human dignity.[27] And, while universities are now more racially diverse, they are substantially less economically diverse. “In 1985, 54 percent of students at the 250 most selective colleges came from families in the bottom three quartiles of the income distribution. A similar review of the class of 2010 put that figure at just 33 percent. According to a 2017 study, 38 elite colleges—among them five of the Ivies—had more students from the top 1 percent than from the bottom 60 percent. In his 2014 book, Excellent Sheep, William Deresiewicz, a former English professor at Yale, summed up the situation nicely: “Our new multiracial, gender neutral meritocracy has figured out a way to make itself hereditary.””[28]

Therefore, race-based affirmative action as we know it perpetuates a double-harm. It is not bold enough racially, funneling historically disadvantaged minorities into less prestigious universities and locking them out of the substantial economic premium bestowed by glittering degrees. Nor is it targeted at those who suffer the brunt of social and racial inequalities: the poor(er). Moreover, race-based affirmative action ignores important experiential diversity. Graduates from Ivies and other prestigious universities generally monopolize positions of social influence and power. Yet they grew up in class-segregated neighborhoods,[29] attended class-segregated schools,[30] and work in class-segregated jobs.[31] Why should we expect a generation of influencers who have minimal exposure to people of different economic backgrounds to develop a more equal society, rather than try to cement their privileges? University education should prepare students not only to be successful personally but also to enjoy their privileges and shoulder their burdens empathetically. Excluding poorer people from our most influential schools, and university education more generally, is a disservice to university students and our society.

III. Why Not Both?

We can walk and chew gum at the same time.

Universities should be more active in promoting both race-based and class-based affirmative action. As discussed, race-based affirmative action needs to show progress at America’s most prestigious universities. African and Hispanic Americans should expect proportionate racial representation at the universities that provide the most economic and social opportunities to their graduates. Poor students should also expect a fair chance of admittance to elite universities. A good place to start is eliminating legacy and faculty admit preferences. Harvard’s legacy admit rate is about 33% while its faculty and staff admit rate is 45%, compared to admit rates well below 10% for other groups.[32] Alumni and faculty are generally wealthy, well connected, and highly educated, and admitting their children at such a high clip is a direct perpetuation of hereditary privilege. Similarly egregious are admits whose parents donate large sums to the university in question. Not only that, disadvantaged students, racial and economic alike, should also receive academic and ancillary support that helps them graduate at rates equivalent to their richer and whiter peers. Lower graduation rates are most often a reflection of less social support rather than personal failings. University attendance is an important ‘intervention point’ where life outcomes are molded; we should mold a more just society along multiple dimensions.

Even assuming that race-based affirmative action is further limited or even struck down by the Supreme Court, economic affirmative action operates to alleviate racial distinctions too and is a viable alternative to pursuing social justice. African and Hispanic Americans are 4%, 2% each, of the wealthiest 10% of Americans, while other racial minorities make up 9% of the wealthiest 10%.[33] Therefore, Caucasians are 87% of America’s richest 10%. An economic affirmative action program that boosts representation of less wealthy students at universities necessarily captures the racial demographics imbedded in wealth and class. Not only that, it captures other important aspects of diversity by randomizing the selection process across social variables that disadvantage people. Restated, poor Americans are poor for all sorts of systemic and personal reasons. Economic affirmative action captures those challenges that are either (1) known and not weighted in our current admissions processes or (2) are not known at all, in addition to (3) classic categories like race. The un-labeled experience of those students is just as important as the labelled ones like race, gender, and zip code. Rewarding their perseverance is justifiable on an individual level and promises to enrich the social context of their university peers in new ways.

IV. Down with the (Idea of the) Meritocracy

Universities are not purely meritocratic. They are at best quasi-meritocratic, and America’s elite universities are far from even that. At this moment, and really throughout their existence, elite universities act as a moat protecting hereditary privilege. Universities’ status as social institutions, they funnel students into influential and richly rewarded roles throughout society,[34] means they have a burden to educate students in socially conscientious ways. It is impossible to fulfill that burden when large swathes of society are excluded from the ivory tower.

In addition, welcoming more economically disadvantaged students into universities should make universities, and society, more meritocratic. Welcoming intelligent people from disadvantaged backgrounds into universities opens opportunity for gritty students to succeed in otherworldly academic settings. Given the proper support, they undoubtedly will succeed, cross-pollinating with classmates and broadening our stock of human capital.

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[1] This lawsuit comes on the heels of Fisher v. Uni. of Tex., 570 U.S. 297, an affirmative action lawsuit decided by the Supreme Court in 2013 that was remanded for further proceedings.

[2] http://samv91khoyt2i553a2t1s05i-wpengine.netdna-ssl.com/wp-content/uploads/2018/06/Doc-414-Statement-of-Material-Facts.pdf, 111–51.

[3] 42 U.S.C. § 2000d.

[4] Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 305.

[5] Regents of Univ. of Cal. v. Bakke, 438 U.S. 265 (1978).

[6] Grutter v. Bollinger, 539 U.S. 306, 328.

[7] Bakke at 305.

[8] https://www.smithsonianmag.com/history/learn-origins-term-affirmative-action-180959531/

[9] 391 U.S. 430 (1968).

[10] https://www.smithsonianmag.com/history/learn-origins-term-affirmative-action-180959531/

[11] https://nces.ed.gov/pubs2010/2010015/indicator6_24.asp

[12] Id.

[13] https://www.census.gov/newsroom/releases/archives/2010_census/cb11-cn125.html. The data add up to more than 100%, even though they exclude Native Americans and others, because Hispanic is not a racial category on the census, so some people of Hispanic origin are counted twice.

[14] https://www.forbes.com/sites/schifrin/2015/12/20/diversity-at-top-colleges-heres-the-proof/#b2db006d3fbd

[15] Id.

[16] Id.

[17] https://www.theatlantic.com/magazine/archive/2018/06/the-birth-of-a-new-american-aristocracy/559130/

[18] Economic research looking at wealth persistence shows that wealthy slaveholding families of the 1860s were overrepresented in the ranks of wealthy families as late as the 1940s.

[19] E.g., Lirio S. Covey and Debbie Tam, Depressive Mood, the Single-Parent Home, and Adolescent Cigarette Smoking, American J. of Public Health (1990).

[20] E.g., John R. Hipp, Spreading the wealth: The effect of the distribution of income and race/ethnicity across households and neighborhoods on city crime trajectories, 49(3) Criminology 631 (2011).

[21] E.g., Thomas J. Christian, Automobile commuting duration and the quantity of time spent with spouse, children, and friends, 55(3) Prev. Med. 215 (2012).

[22] E.g., Murry et al., African American Single Mothers and Children in Context: A Review of Studies on Risk and Resilience, 4(2) Clinical Child and Family Psychology Review 133 (2001) (“Because a greater proportion of African American children than children from other ethnic groups are reared in impoverished single-mother families, they are at particular risk for compromised outcomes.”).

[23] “The law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal break.” Anatole France.

[24] Mark Zandi, What Does Rising Inequality Mean for the Macroeconomy?, in After Piketty (eds. Boushey, DeLong, and Steinbaum, Harv. Uni. Press, 2017).

[25] Id.

[26] https://www.politicallawbriefing.com/2012/12/is-my-donation-really-anonymous/. Describing when political donations can remain anonymous. Anonymous donations are one way, alongside personal connections, disclosed political donations, and others, that entrenched wealth can undermine democracy.

[27] Elisabeth Jacobs, Everywhere and Nowhere: Politics in Capital in the Twenty-First Century, in After Piketty (eds. Boushey, DeLong, and Steinbaum, Harv. Uni. Press, 2017) (addressing poverty’s influence in limiting peoples’ ability to exit bad situations, as well as wealth’s power to exit societies without penalty, subjecting countries to their will).

[28] https://www.theatlantic.com/magazine/archive/2018/06/the-birth-of-a-new-american-aristocracy/559130/

[29] Elisabeth Jacobs, Everywhere and Nowhere: Politics in Capital in the Twenty-First Century, in After Piketty (eds. Boushey, DeLong, and Steinbaum, Harv. Uni. Press, 2017)

[30] “Only 2.2 percent of the nation’s students graduate from nonsectarian private high schools, and yet these graduates account for 26 percent of students at Harvard and 28 percent of students at Princeton.” https://www.theatlantic.com/magazine/archive/2018/06/the-birth-of-a-new-american-aristocracy/559130/.

[31] Over half of Ivy League graduates enter finance, management consulting, medicine, or law. https://www.theatlantic.com/magazine/archive/2018/06/the-birth-of-a-new-american-aristocracy/559130/.

[32] Supra, note 2.

[33] https://www.theatlantic.com/magazine/archive/2018/06/the-birth-of-a-new-american-aristocracy/559130/

[34] A majority of the Supreme Court graduated from Harvard Law School.