Affirmative Action: Past, Present, and Future

Nothing is more emblematic of America’s extreme partisan divide than attitudes towards affirmative action. Surveys reveal that racial and gender preferences are unpopular with the public, and affirmative action initiatives are almost always rejected at the ballot box. A recent effort in the blue state of California to repeal the ban on racial preferences in public programs and education failed by a large margin.

Yet the commitment to achieving greater “diversity” of underrepresented groups (which in practice primarily means blacks and women) is now widespread and entrenched in our society. Those in charge of key centers of economic and cultural influence can be counted on to defend racial preferences and ensure their continuance regardless of public opinion and, in many cases, official bans. Opposition is also rare within the ranks of major institutions. The pros and cons of the practice, which were once frankly discussed, are no longer subject to debate in many quarters, with universities and schools especially intolerant of anything less than full support. Expressions of doubt about affirmative action and discussions of its downsides are taboo and come at a perilous cost to dissenters.

Yet a few articulate and learned commentators, mostly outside the academy but also within it, continue to make the case against group preferences in higher education. A Dubious Expediency, a collection of essays edited by Gail Heriot and Maimon Schwarzschild, brings together useful and compelling critiques of affirmative action in the educational context and the chief evidence against it. The arguments here will not be unfamiliar to readers who have approached this issue with an open mind and healthy skepticism. Yet even those (such as I) who believe themselves well-versed in the drawbacks of our affirmative action practices will find great value in the materials and contentions put forward here so ably and in such detail.

The History of Affirmative Action

In the first chapter, from which the book takes its title, Gail Heriot, one of our most dogged and careful critics of racial preferences, fills in the background on the historical roots of educational affirmative action, the early opposition to it, and the transmogrification of its original remedial rationale into the diversity priority that now dominates in the university and beyond. She explains that this book’s title comes from the lower court opinion in the well-known Bakke case authored by Judge Mosk of the California Supreme Court. In rejecting the University of California at Davis’s medical school program granting admissions preferences to minority students, Mosk opined that the Constitution incorporates a colorblind and impartial standard. He further explained that “the sacrifice of principle for the sake of [the] dubious expediency” of an immediate increase in the number of minority medical students at the school “would represent a retreat in the struggle to assure that each man and woman shall be judged based on individual merit alone.”

As everyone knows, that principle did not survive review by the U.S. Supreme Court. In the first case to put the Court’s imprimatur on the race-conscious selection of students, Justice Lewis Powell cast the critical tie-breaking vote. His opinion in Bakke declared that race-based preferences are permissible, within limits, for the purpose of creating a “diverse” student body, because attending a university with students from a range of backgrounds generated obvious educational benefits. Thus was born the central legal justification for the practice of affirmative action in higher education, which has dominated the scene ever since.

In the Grutter case in 2004, the Supreme Court officially characterized student diversity as a “compelling interest” with sufficient pedagogical benefits to overcome the race-blind presumption behind the Constitutional Equal Protection guarantee and, by implication, the explicit language of the civil rights laws. Justice O’Connor’s opinion accorded great deference to those in charge of educational institutions in judging the value of diversity and shaping the student selection process to advance that goal. Subsequent cases affirmed these principles. Affirmative action programs spread like wildfire, enthusiastically embraced by university authorities and soon applied beyond student selection to faculty and administrative hiring and the composition of academic departments.

The Fallout on Students and Schools

Several essays in this book are devoted to reviewing the fallout from these developments in detail, including the unfortunate consequences for students, institutions, the educational experience, and society as a whole. What are the main themes? One important issue is the effect of affirmative action programs on the students themselves. Drawing on academic research, several authors argue that the overplacement of black students in selective institutions to which they would not be admitted on a colorblind basis has negative effects on student achievement and choice of career. In particular, minority students whose credentials are, on average, weaker than their classmates are more likely to end up near the bottom of the class in rigorous courses. As part of a documented “mismatch” effect, they actually perform worse than minorities who attend schools where they are better matched to the abilities of other students. As a result, and despite an expressed desire to enter quantitative and technical fields, minority beneficiaries of racial preferences tend to drop out of science majors more frequently than other students, resulting in fewer blacks pursuing careers requiring STEM training.

In contrast, curbing affirmative action—such as occurred in the California state system after racial preferences were banned—has been documented to lead to more blacks remaining in difficult majors. Heriot also notes that historically black institutions, where students tend to be educated with others of similar ability, turn out more black doctors and science PhDs than universities practicing affirmative action. A similar phenomenon occurs for blacks’ decision to enter Ph.D. programs in non-STEM fields. Because students are less likely to aspire to become professors of subjects in which they do not excel in their college years, the overplacement of blacks in elite institutions ends up worsening the so-called “pipeline problem” of the minuscule number of blacks entering graduate programs and available for faculty positions.

Catering to the desire for psychological safety requires students to be seen not as young people to be educated and exposed to challenging ideas but as fragile creatures to be protected from the expression of views with which they disagree.

What about the effects on institutions and the educational experience? Here the consequences have been momentous and catastrophic, deserving even greater alarm and emphasis than the authors here express. No one familiar with recent developments in the academy, as documented in part by some of the contributions to this volume, can help but conclude that nothing has proved more ruinous of the quality and integrity of the American educational system than racial preferences and their effects. These have distorted and debased every aspect of the academic and educational enterprise, transforming institutions initially designed as bastions of rigor, intellectual excellence, the pursuit of truth, and the preservation of “the best that has been thought and done” into centers for advancing the political agenda of the progressive left.

The top priority of this transformation is to secure the psychological comfort of “underrepresented minorities,” and especially black recipients of racial preferences. This requires denying the double standards that apply to beneficiaries, hiding the academic deficits that result, and generating endless excuses for the continuing poorer performance and society-wide troubles of minority groups. How are these goals advanced? By creating a “safe space” and a “welcoming” atmosphere of acceptance and “inclusion” in which everyone, and especially the beneficiaries of racial preferences, is protected from upset and offense. Catering to the desire for psychological safety requires students to be seen not as young people to be educated and exposed to challenging ideas but as fragile creatures to be protected from the expression of views with which they disagree or claim to find threatening.

As several of the chapters in this volume make clear, the ramifications of this “protection racket” for universities and the educational mission are far-ranging and dramatic, endangering the enlightenment-based conventions and the liberal academic order that have long been the basis of university life. This has inevitably led to attacks on the standards of academic achievement and evaluation long accepted in the academy and their disparagement as racist tokens of “white supremacy.” Hence the rapid rise on campus of what is now called “wokeness,” marked by a growing hostility towards Western and European cultural values, practices, heritage, and methods for assessing achievement and excellence.

The Abandonment of Academic Standards

The chapters by Peter Wood and Heather Mac Donald are especially effective in conveying how adopting the rules and proscriptions of progressive “anti-racism” have affected the academy by debasing and distorting hiring, curricula, and academic conventions both inside and outside the classroom. As Heather Mac Donald summarizes in describing the dismaying situation in the vast University of California system, “it’s impossible to overstate the extent to which the diversity ideology has encroached upon the collective psyche and mission. . . .  It is the one constant in every university endeavor; it impinges on hiring, distorts the curriculum, and sucks up vast amounts of faculty time and taxpayer resources.”

The changes in the composition of the curriculum are especially egregious, with the California system far from unique in this regard. Since much of what has heretofore been taught in universities has been the product of European accomplishments and thought, the “woke” animosity towards “whiteness” has worked a profound transformation of the very content of education itself. In universities across the nation, the traditional academic mission has given way to an obsession with multiculturalism that neglects and denigrates the contributions of Western culture as a destructive manifestation of “toxic white supremacy.” Under sustained attack are objective standards and metrics, meritocratic methods, logic, rigor, ranking, intellectual hierarchy, and the evidence-based pursuit of truth.  

The abandonment of traditional academic practices is especially alarming in science, where, as MacDonald notes, woke ideology now increasingly influences who is admitted and hired, what research is conducted, and how it is presented. Priorities like competence, excellence, and the creation of new knowledge have given way to the pursuit of politically motivated objectives in science and fact-based fields, such as medicine, where two agencies charged with accrediting U.S. medical schools have recently endorsed the elevation of anti-racism in medical education as a top priority and declared the use of meritocratic standards “malignant.” Standards are accordingly lowered, long-accepted criteria for competence relaxed, and proven methods for scientific training and advancement abandoned. To paper over these changes, excellence and achievement are simply redefined to include identity as a qualifying characteristic.

This “science diversity charade,” as Mac Donald calls it, increasingly threatens the progress and quality of work in scientific fields. Yet those in the academy who point out these pitfalls do so at their peril. As the contributions to this volume document, central to the diversity project are silencing criticism and banishing overt challenges to racial preferences, double standards, and any and all presumptions behind the “woke” pursuit of racial “equity.” This extends to forbidding even the recognition of the group differences in academic proficiency and skill underlying the need for racial preferences. Affirmative action has become an item of faith and a sacred cow. By definition, those who oppose or even question the practice are racists deserving of severe penalties and ostracism.

One important casualty of pandering to student demands and the universities’ turn away from traditional liberal values has been the rejection of trans-racial interaction and integration. In his chapter on racial separatism on campus, Peter Kirsanow describes campus trends in minority self-segregation in dorms, dining halls, and extra-curricular activities, which have long been indulged and even encouraged by campus officials. He ascribes this demand for segregated spaces and the growth of “organizational structures on the basis of group grievance” to the identity politics and tensions generated by racial double standards. The irony, of course, is that the deliberate avoidance of racial mixing is antithetical to the declared purpose of affirmative action. The pursuit of a diverse student body was designed to deliver the pedagogical benefits of cross-racial interactions and the exchange of ideas. In catering to the untutored demands of minority students for separate, “safe” spaces, universities have chosen to pursue policies manifestly at odds with the stated goals of racial preferences.

Education to End Racism?

A fair reading of what stands behind all the developments revealed by this volume’s essays is the fact of persistent racial disparities in academic achievement, the obsession with eliminating them, and the conviction that diversity in education is the key method for closing these longstanding gaps. Unfortunately, the evidence on which this hope is based is thin to non-existent. The majority’s Supreme Court opinion in Grutter, which spawned the affirmative action line of cases that deemed diversity a “compelling interest,” uncritically deferred to the views of educational “experts” that racial mixing was central to minorities’ educational improvement. Yet there is plenty of data calling that conclusion into question, most recently including a study, reported in the Wall Street Journal in November 2021, showing that graduates of historically black institutions, whose classes consist mostly of black students, achieve greater upward mobility and are more likely to end up in the middle class than similar graduates from more diverse colleges and universities. Of course that does not mean that the persistence of racial gaps is a problem to which we currently have a complete or even partial solution. Rather, it shows only that the dogged pursuit of diversity in higher education is not likely to achieve educational parity by race or even take us closer to it.

Apart from diversity’s effect on racial achievement gaps, the very notion that its pursuit has pedagogical value, let alone enough to justify a departure from meritocratic colorblindness, lacks any reliable foundation. There is simply no credible evidence that diversity, as that term is currently employed, makes for a better educational or classroom experience. The asserted and predicted upside of diversity, which is to have students exposed to a wide range of divergent viewpoints, simply has not occurred. Rather, affirmative action has created the very opposite situation—an educational establishment increasingly locked into a narrow straitjacket of acceptable discourse, peddling double-think, double-talk, and political correctness, devoted to selectively ignoring reality, and dedicated to the demolition of basic principles of intellectual discourse that have previously served as the widely accepted touchstones of the liberal academic enterprise.

Outlawing racial preferences in university admissions and other aspects of university decision-making would require the Supreme Court to overturn an entire line of cases establishing and affirming diversity as a compelling pedagogical interest that justifies deviation from a colorblind standard.

Everyone involved in institutions of higher learning suffers from affirmative action’s baleful effects, but not everyone suffers equally. The lawsuit filed against Harvard University by a group of Asian student applicants shows that Asians are consistently held to higher admissions standards and have a far smaller chance of admission to elite and competitive schools than everyone else, and especially than so-called “underrepresented” minorities, especially blacks and Hispanics. The data demonstrating this fact are readily available and are provided in this volume. For example, a male Asian American applicant with a 25% chance of admission to Harvard would enjoy a 95% admission rate if he were a black student with the same academic credentials. Despite numbers like these, which Harvard has never really denied, the university’s admissions practices, which are typical throughout the Ivy League, were deemed by the district judge in the Harvard case, Allison Burroughs, to be consistent with the principles set out by the Supreme Court in Grutter and its progeny.

A fair reading of those precedents shows why this conclusion is hardly surprising and probably sound. Affirmative action is not necessarily defeated by showing that students who are more academically successful are put at a disadvantage and that the groups to which they belong are effectively “discriminated against.” The whole point of the doctrine set out in the affirmative action cases is that, in pursuit of the “compelling interest” of diversity, discrimination is permissible and some degree of race-consciousness is allowed. To put it baldly, institutions with a limited number of student places have a license to discriminate in favor of underperforming groups (predominantly blacks) and against overperforming groups (such as Asians) in order to achieve the proper demographic mix. Thus, showing that Harvard “discriminates” against Asians by holding them to a higher academic standard—which it unquestionably does—does not in itself invalidate Harvard’s program under the principles and permissions now enshrined in the law.

Returning to a Colorblind Creed

An understanding of the true nature of the doctrine surrounding affirmative action highlights one potential shortcoming of this book, which is the failure to say more about the far-reaching and transformative legal changes that abolishing affirmative action would require. Outlawing racial preferences in university admissions and other aspects of university decision-making would require the Supreme Court to overturn an entire line of cases establishing and affirming diversity as a compelling pedagogical interest that justifies deviation from a colorblind standard under the Constitution and civil rights laws. To be sure, state-wide plebiscites have enacted bans on governmentally sponsored affirmative action in some states. But these have had variable effects in the affected places (since universities find them easy to circumvent) and have left most state and private universities throughout the nation free to engage in racial preferences.  

The difficulties of deploying the law to defeat affirmative action, although weighty, pale beside the formidable uphill battle of addressing the social and economic consequences of achieving that goal. On this score, what is notable in these essays is less what they say than what they leave unsaid. Although setting out the arguments against racial preferences with thoroughness and skill, the authors do not pay enough attention to the regime that will result from its abolition. Nor do they plainly confront the sea change in thinking about race and group differences that will be required to effectuate a return to colorblind standards and to break the elite stranglehold over student and personnel selection that most ordinary people reject.

Indeed, one comes away from reading this book with the firm sense that the affirmative action true believers who control and fund the academy today are unlikely to be moved by its arguments, however forceful, cogent, and replete with copious evidence of harms to minority beneficiaries themselves. Advocates of racial preferences regard the goal of increasing the number of less competitive minorities in elite universities as a moralized cause that is necessary, righteous, good, and beneficial in itself. For committed proponents, conferring advantages on previously persecuted minorities, whether in the name of diversity or rectifying past sins, has been turned into a cardinal touchstone of “social justice.”

Nor is this book likely to have much effect on the widely held conviction that educational affirmative action is central to the anti-racist cause of establishing true equality between blacks and other groups. Indeed, this belief has now spread far beyond the university to society at large. The “woke” expectation that various forms of racial preferences are the key to remediating and eliminating racism, which is in turn essential to producing equal group outcomes everywhere, has become an unquestioned and unquestionable axiom throughout the corporate world, policy-making institutions, government at all levels, sports, entertainment, journalism, the media, K-12 education, and beyond.

Given these developments, decisively defeating affirmative action will require nothing less than a bold and deep critique of the now dominant expectations, rhetoric, and assumptions about racial groups that undergird the drive to manipulate racial demographics. What is needed is a full and frank acknowledgment of the dramatic countercultural consequences of banishing affirmative action and returning to what Charles Murray in his new book Facing Reality deems the American Creed: an impartial, colorblind, merit-based system for educational and economic advancement. Given current realities, those consequences would be stark.

As Murray shows, the unpleasant reality is that, at least as things currently stand, groups are not equal on average in intellectual potential (as measured by IQ tests), academic ability (as reflected by achievement tests), and competence (as documented in empirical measures of job performance). What this means on the ground is that, without racial preferences, equal outcomes by race and the progressive ideal of racial “equity” in American society is not an achievable goal and will not be any time soon. More specifically, abandoning racial preferences and returning to colorblind, meritocratic standards will lead to significantly fewer low-performing minorities earning places in demanding professions and positions of authority.   

Are affirmative action opponents ready, willing, and able to defend this situation without apology? Can they stomach the formidable task of justifying the group inequalities that will inevitably arise from applying colorblind, impartial principles? Are they prepared to publicly repudiate the expectation of proportionate group representation both as a legal touchstone and a practical goal? These are daunting challenges in the current political climate.

One temptation would be to maintain some simulacrum of a “leg up” for the disadvantaged by retreating to the alternative of class-based affirmative action, which Maimon Schwarzschild thoughtfully and thoroughly explores in the last chapter of this book. But, as he explains, such programs do not represent a viable alternative to racial preferences and carry a host of costs. Income-based initiatives will not appreciably increase the number of blacks and Hispanics on campus, because low-SES members of other groups often have better academic credentials. And class-based programs will vastly increase administrative complexity, transfer even more discretionary power to educational administrators, generate perverse incentives, and invite manipulations that game the system.

The best alternative to the racial preferences currently in place is to recognize the realities of group differences in academic proficiency and our limited ability to do anything about them. The burning question, as noted, is whether even the most vocal opponents of affirmative action, such as the able authors in this volume, are prepared to confront that reality.

In sum, affirmative action and the double standards that come with it have been accompanied by a refusal to recognize or acknowledge that groups are not currently equal in their capacities, competencies, potential, and talents. The widespread adoption of racial preferences throughout our education establishment and our economy has fueled destructive, unrealistic expectations of equal results for different groups. The imperative to hide and misrepresent the facts and indulge hypersensitive minorities who insist on being protected from them fuels the “woke,” progressive dogmas that have enveloped our campuses and our society. Dishonesty about race and group differences has undermined academia to the point of destruction and threatens to destroy society itself. The critical question is whether these trends can be arrested or reversed.