The Fate of Affirmative Action

An excellent, in-depth report, from Nicolas Lemann, at New York, "Can Affirmative Action Survive?":

1. The History

In June, 2016, Justice Samuel Alito took the unusual step of reading aloud from the bench a version of his lengthy dissent in the case of Fisher v. University of Texas. A white applicant who had been denied admission had sued, saying that she’d been discriminated against because of her race. The Supreme Court, by the narrowest of margins and on the narrowest of grounds, upheld Texas’s admissions policy. Alito, with steely indignation, picked apart the logic of U.T.’s arguments and of his colleagues’ majority opinion. “This is affirmative action gone berserk,” he declared.

The civil-rights revolution ended the Jim Crow system of legally mandated racial segregation in the South. Its success made it obvious that much of the rest of the country was segregated, too, in fact if not always explicitly by law. In the years after the passage of the major civil-rights legislation, many colleges and universities made a concerted effort to become more racially integrated. Alito was complaining about U.T.’s version of this effort, but affirmative action has been controversial from the beginning, because more Black students usually means fewer students of other ethnicities. Students who weren’t Black used the laws banning racial discrimination to claim that universities were now discriminating in favor of Black people, and against them.

Alito concluded his dissent with an impassioned statement: “What is at stake is whether university administrators may justify systematic racial discrimination simply by asserting that such discrimination is necessary to achieve ‘the educational benefits of diversity,’ without explaining—much less proving—why the discrimination is needed or how the discriminatory plan is well crafted to serve its objectives.” In his view, the University of Texas, once the target of a civil-­rights lawsuit charging it with discriminating against Black people, was now discriminating, just as unacceptably, against others. He went on, “Even though U.T. has never provided any coherent explanation for its asserted need to discriminate on the basis of race, and even though U.T.’s position relies on a series of unsupported and noxious racial assumptions, the majority concludes that U.T. has met its heavy burden. This conclusion is remarkable—and remarkably wrong.”

Affirmative action is one of many policies—not just in admissions but also in employment, contracting, education, and voting—that take race into account, as a way of reversing the effects of many more policies, lasting for many more years, that openly discriminated against Black people. The Supreme Court has been ruling on these policies for half a century. In 1954, the Court joined the civil-rights revolution in a unanimous decision declaring legally segregated public schools to be unconstitutional. Since then, it has had a much harder time making up its mind in cases involving race.

The Court has considered affirmative action in university admissions six times. The first time, the Justices wound up declaring the case moot. The second time, they voted 5–4 against an explicit, numerical version of affirmative action, and 5–4 in favor of a less explicit version. The third and fourth times involved two lawsuits against the University of Michigan, which the Court decided simultaneously. In one, it ruled against another explicit, numerical version of affirmative action by a 6–3 vote, and in the other it once again voted 5–4 in favor of a less explicit version. The fifth time was the University of Texas case; the Court sent it back to a lower court for reconsideration. That led to the sixth time, in 2016. It decided, by a one-vote margin, in favor of keeping a soft-edged kind of affirmative action that relies on the judgment of an admissions office to use race appropriately when considering an applicant. Is there any issue on which the Supreme Court has produced less clarity? But one thing has been true every time the Court has upheld a form of affirmative action in admissions: the swing vote in the decisions came from a moderate Justice appointed by a Republican President—a breed that no longer exists.

The nine Justices are now considering whether to hear Students for Fair Admissions v. Harvard, which accuses Harvard of discriminating against Asian American candidates. The case was organized by Edward Blum, a financial adviser who for more than twenty-­five years has been bringing lawsuits against various efforts to take race explicitly into account with the aim of helping people of color—including the Texas case. Another of Blum’s cases, which accuses the University of North Carolina of rejecting white and Asian American applicants because of their race, is currently moving through the lower courts.

The country appears to be embarking on a great racial reckoning. A year ago, the murder of George Floyd by the white police officer Derek Chauvin set off some of the largest public demonstrations in American history, and prompted forceful official statements of opposition to racism by just about every prominent institution in America. Joe Biden has repeatedly called for racial equity, using unusually strong language. Many organizations have issued public pledges to recommit themselves to racial diversity, to more fully acknowledge Black history, and to more extensively represent Black perspectives. And a conservative resistance to all these changes is under way, in Congress and state legislatures, in the media, and in the courts, where there are new legal challenges to race-­conscious Biden Administration programs. It’s distinctly possible that the Supreme Court, as early as next year, could signal that it considers efforts aimed explicitly at helping Black people to be unconstitutional.

In June, the Court asked the Biden Administration to give its views on the Harvard case. If the Court decides to take it, that would be seen as good news by the plaintiffs and bad news by Harvard, which has won in the lower courts. It would be the Court’s first affirmative-­action case involving a private university, although Harvard, like all major research universities, receives a great deal of government funding. Given the current makeup of the Court, it’s hard to imagine that it would be inclined to build a bigger, friendlier space for race-­conscious policies. There is no reason to believe that Justice Alito has changed his mind in the five years since his dissent in the U.T. case.

Two other conservative Justices who have been consistently hostile to affirmative action—Clarence Thomas and Chief Justice John Roberts—signed on to Alito’s dissent. Roberts has referred to race-conscious policies as “a sordid business.” Anthony Kennedy, the now retired, moderate Republican-appointed Justice who wrote the majority opinion in the Texas case, had in the past been inclined to vote against affirmative action. Joan Biskupic revealed in her recent biography of Justice Sonia Sotomayor that when the case first came before the Court, in 2012, Sotomayor had initially drafted a “heated opinion,” offering “a fierce defense of affirmative action.” When she sensed that Kennedy was moving away from his former position, she decided not to issue it and instead wound up voting for his opinion, in 2016, when the case came back to the Court. Now there are six Republican-appointed Justices on the Court, three of them—Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett—appointed in the past four years, by Donald Trump.

A particularly firm conservative decision would amount to an invitation to further lawsuits challenging state and local measures designed to increase Black employment, electoral power, and economic resources. On race, it’s by no means clear that the Supreme Court has shared in the resurgence of passion for racial-justice issues that has swept through many other leading American institutions. This could be one of those Court decisions which set off not just private legal readjustments but public demonstrations, and years of political organizing. There is little common ground between people who see explicitly racial remedies as justifiable and necessary and people who see them as morally indistinguishable from the Jim Crow laws.

It will be fitting if the Court takes the Harvard case. The long-running battles over affirmative action involve a clash between two opposing principles, both arguably invented at Harvard: meritocracy and diversity. At large universities, it is possible to employ both principles at once, since the institutions have to balance many goals that sometimes seem at odds. But in the national debate, because people tend to choose either meritocracy or diversity, it’s important to understand where the ideas came from.

In 1933, James Bryant Conant, a chemist, became the president of Harvard. Unlike his immediate predecessors, who were Boston Brahmins, Conant grew up in middle-class Dorchester, not one of Boston’s patrician precincts. During Harvard’s almost four-hundred-­year history, it has organized itself along a number of different principles, beginning with its founding mission to train ministers. Conant’s predecessor, Abbott Lawrence Lowell, had overseen an institution dominated by students from wealthy families in the Northeast who had been educated at New England boarding schools. Lowell had introduced a quota restricting the number of Jewish students and a policy of residential segregation for Harvard’s few Black students. Conant wanted to make Harvard more purely academic, like the great research universities in Europe, so the clubby atmosphere of the place struck him as something that had to change.

Conant became entranced with the idea of using standardized intelligence tests as a way to attract academically outstanding public-school graduates from all over the country, regardless of their socioeconomic backgrounds. He decided that the best test available was the SAT, a multiple-choice test adapted from an I.Q. test given to Army inductees during the First World War. Immensely influential in the world of education, Conant led a successful effort to make the SAT a critical part of the admissions process for millions of college applicants, and to make other I.Q.-like tests a key screening device for graduate and professional schools. This consequential policy was established with no legislative action and little or no public debate.

During the nineteen-forties, Conant wrote a series of manifestos proposing a vast remaking of American society. The best known of these, titled “Wanted: American Radicals,” was published in The Atlantic Monthly. Conant hoped to create a Cold War version of Plato’s Republic, with a new class of brainy, selfless, superbly educated men leading the competition with the Soviet Union. As he perceived it, standardized tests would bring to the best universities the most talented students, who would go on to become highly influential public servants. This position wasn’t completely wrong. One of the first SAT-selected scholarship students to attend Harvard, which was all-male at the time, was James Tobin, the son of a sports-information director at the University of Illinois, who distinguished himself as a Nobel Prize-winning economist, a professor at Yale, and a member of the White House Council of Economic Advisers. One of Tobin’s students was Janet Yellen, the daughter of a Brooklyn family doctor, who is now the Secretary of the Treasury.

But Conant was mistaken in believing that he could use the SAT as a way to create a classless society. He liked to predict that, in the postwar world, inherited privilege would be abolished. In 1958, Michael Young, a British sociologist, introduced the word “meritocracy,” warning that the widespread use of I.Q. tests as a sorting device would result in a new and deeply resented kind of hereditary class system. But that’s not how people came to understand the term. To many, it denoted an almost sacred principle: that tickets to success, formerly handed out by inheritance or luck, were now given to the deserving. Inevitably, the system became widely understood not as an entry point into public service but as a promise of financial reward and social prestige. And fortunate parents learned how to manipulate the system, insuring that their children received every possible advantage—or even, in extreme cases, bribing their children’s way into élite universities.

White establishment liberals of Conant’s generation almost never considered race when they thought about the American future. In the summer of 1948, Henry Chauncey, an assistant dean under Conant who became the first president of the Educational Testing Service, was stunned to read an article co-written by one of the most prominent Black academics in the country, the anthropologist Allison Davis, who argued that intelligence tests were a fraud—a way of wrapping the privileged children of the middle and upper classes in a mantle of scientifically demonstrated superiority. The tests, he and his co-author, Robert J. Havighurst, pointed out, measured only “a very narrow range of mental activities,” and carried “a strong cultural handicap for pupils of lower socioeconomic groups.” Chauncey, who was convinced that standardized tests represented a wondrous scientific advance, wrote in his diary about Davis and Havighurst, “They take the extreme and, I believe, radical point of view that any test items showing different difficulties for different socioeconomic groups are inappropriate.” And: “If ability has any relation to success in life parents in upper socioeconomic groups should have more ability than those in lower socioeconomic groups.”

But that thought contradicted Co­nant’s assurance that the American radical he wanted to put in charge of the country would be “a fanatical believer in equality,” committed to “wielding the axe against the root of inherited privilege.” As the civil-rights movement grew, universities wanted to integrate more seriously, and standardized tests complicated their commitment. Testing made it possible to create a numerical ranking of all applicants, which helped enormously in handling the crush at the gates of selective institutions. Yet there had always been substantial average Black-white gaps in test scores—a reflection of the divergent quality of education and other resources in the lives of Black and white Americans. Conant’s efforts had resulted in greatly increasing the importance of tests, but the enhanced integration, beginning in the nineteen-sixties, of Harvard and other colleges and universities required decreasing their importance.

By the early nineteen-seventies, rejected white applicants at a number of universities were beginning to sue—charging that the schools had engaged in reverse discrimination. The plaintiffs based their legal arguments on two landmarks in the country’s historic quest for racial justice, the Fourteenth Amendment to the Constitution and the Civil Rights Act of 1964, both of which forbade racial discrimination. Those measures were aimed at helping Black people, but, the plaintiffs argued, they applied equally to white people who had been rejected even though their test scores were higher than those of admitted Black applicants. In these lawsuits, admissions based on standardized test scores had risen to the level of a constitutional right.

The first celebrated white litigant against an affirmative-action program was Marco DeFunis, who had been turned down by the University of Washington’s law school. In 1974, the Supreme Court declared DeFunis’s case moot because a lower court had ordered that he be admitted to the law school, and by the time the Court ruled he was close to graduating. Supporters of affirmative action were worried. Mainstream Jewish organizations, seeing affirmative action as a possible harbinger of a return of Jewish quotas at universities, took DeFunis’s side. Alexander Bickel, of Yale Law School, one of the country’s most prominent legal scholars, co-wrote an anti-affirmative- action friend-of-the-court brief for the Anti-Defamation League. The sociologist Nathan Glazer wrote a book called “Affirmative Discrimination.” The Supreme Court’s most theatri­cal­ly liberal white member, William O. Douglas, wrote a solo opinion that treated affirmative action as unconstitutional. The Fourteenth Amendment, he wrote, “commands the elimination of racial barriers, not their creation in order to satisfy our theory as to how society ought to be organized.” The feeling that issues involving race had obvious solutions, which had prevailed at the Court in 1954, had evaporated. Justices were predisposed to see affirmative action as presenting a bewildering conflict between two competing values: the impulse to integrate universities and the impulse to organize admission as an open competition in which each individual applicant would be judged solely on the basis of grades and test scores...

Still more.