The case against affirmative action

As you probably know, last week the Supreme Court heard oral arguments on two cases that challenge the doctrine of affirmative action in university admissions, Students for Fair Admissions (SFFA) v. Harvard, and SFFA v. the University of North Carolina. These cases were brought by students claiming that policies that use race as a factor in admissions illegally discriminate against Asian-Americans.

Most expect, as I do, that the Supreme Court will overturn Grutter v. Bollinger (2003), and prohibit race-conscious admissions in higher education, based on a colorblind reading of the 14th amendment and/or the anti-discrimination principles of Title VI of the 1964 Civil Rights Act. However, I am not writing here to opine on the legality of affirmative action. There are many legal scholars far more qualified than I to do so. Nor am I here to comment on the moral and ethical question of whether two wrongs make a right, that is, whether past discrimination of one group justifies current discrimination of another.

What I want to write about is this. Regardless of whether affirmative action is legal or not, and irrespective of whether affirmative action is moral or not, the implementation of racial preferences in university admissions for more than half a century has had an enormously deleterious impact on higher education, on American society, and on the minority community to which affirmative action aims to help. In short, the costs far outweigh any benefits. Moreover, the explicit rationale that universities claim supports affirmative action - diversity - is belied by the actions of those very same universities. For these reasons, affirmative action must end.

Let’s briefly review the history of affirmative action. In 1966, President Lyndon Johnson issued an executive order that told government contractors to "take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, color, religion, sex, or national origin." In 1969, President Richard Nixon issued his own executive order that promised affirmative action in government employment. Shortly thereafter, elite universities began to voluntarily admit increasing numbers of black students.

It it is important to note that even though the Civil Rights Act of 1964 outlawed racial discrimination, the justification for affirmative action articulated in the 1960s was specifically to make up for the discrimination of blacks over centuries, and their exclusion from education and employment opportunities. That is to say, affirmative action, in its original intent, was a form of reparations.

Very quickly, however, lawsuits were brought by white students claiming reverse discrimination. The first legal challenge, ultimately dismissed by the Supreme Court, was brought in 1971 by a law student against the University of Washington Law School.

Things came to a head in a landmark Supreme Court case in 1978, Regents of the University of California v. Bakke. Allan Bakke, a white man, filed the lawsuit after he was rejected for admission by the medical school of UC Davis, which guaranteed 16 of 100 spots for people of color. In Bakke, the Supreme Court declared quotas as an unconstitutional violation of the Equal Protection Clause of the 14th Amendment. But, importantly, the Supreme Court’s ruling also said that universities could still use race as one factor in admissions decisions.

The effect of this ruling was to change the implicit rationale of affirmative action away from reparations and social justice to the benefits of diversity for ALL students. Another landmark case, 2003’s Grutter v. Bollinger, upheld the Court’s ruling on affirmative action. In a 5-4 opinion, the Court held that narrowly tailored use of race in admissions decisions was permissible because of the educational benefits that result from a diverse student body.

For decades now, we have taken for granted the idea that the benefits of diversity to students outweigh the costs of racial discrimination. But is this true? I strongly say no. Even more importantly, I’d argue that the actions of both universities and the minority populations that supposedly benefit from affirmative action demonstrate that the objective of diversity is nothing more than a farce.

The alleged benefit of a diverse classroom is that all students profit from being exposed to varying viewpoints AND that skin color is a proxy for those varying viewpoints. On the first point, it is hard to argue that diverse viewpoints among students have any benefit whatsoever in the majority of college classes, such as math, the sciences, engineering, or computer science. However, I posit this is true in the vast majority of humanities and social science classes as well. Why is my lived experience relevant to supply and demand curves? To the history of political institutions or Ancient Rome? To French literature or medieval architecture?

In fact, I’d go further than most and say that classroom discussion doesn’t actually much matter at all. Rarely do students learn from their peers. They learn from their professors and from assigned reading materials. The vast majority of class participation tends to take one of three varieties: 1) A small number of students asking annoying questions to hear themselves speak or to earn brownie points with their professor. 2) A small number of students vacuously pontificating to hear themselves speak or to earn brownie points with their professor. 3) Professors calling on students for no other reason than to ascertain if students did the assigned reading.

Even if we stipulate that students do benefit from classroom discussion, the next relevant question is does skin color presuppose differing life experiences. Perhaps it does in broader society, but it doesn’t seem to at places like Harvard. Let me quote economist Roland Fryer writing recently for an op-ed in the Washington Post:

“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.”

Does a wealthy black student who attended an elite private school in New York City really add a different viewpoint to class than a wealthy white student from the same school and same neighborhood? My own daughter used to go to school with a black girl who had a white nanny (seeing a white nanny in New York City is about as likely as witnessing Randi Weingarten at a Republican rally). No doubt this girl, under affirmative action policies, would one day get preferences at any Ivy league school to which she applies. But is this really what Harvard means by diversity?

Moreover, if the core argument for affirmative action is to enable diverse viewpoints in the classroom then we need to ask just how much do elite universities value viewpoint diversity? To nobody’s surprise, the answer is not very much at all. At the University of North Carolina, the defendant in one of the two cases being litigated at the Supreme Court, professors who identify as Republicans are outnumbered by Democrats 16 to 1! This pattern is repeated at top universities everywhere. In the social sciences especially, students are likely to graduate never having taken a class with a professor who doesn’t lean significantly left.

And of course, there’s not much point in harboring differing views in the classroom if students and professors aren’t able to share those views. In other words, if there’s no free speech in the classroom. According to FIRE’s free speech rankings, Harvard, the defendant in the other Supreme Court case, rates “below average” for their tolerance of speech on campus. Not exactly putting your money where your mouth is.

The last point I want to make on how universities view diversity is the most damaging to their case. Why do schools tolerate and even encourage the increasing amount of segregation on campus by the very minorities to which they claim are necessary to expose to non-minority students? The proliferation of segregated affinity groups, segregated campus events, and even segregated housing negates the entire point of diversity.

Why are whites and Asians supposed to derive educational benefit from spending time with blacks, but blacks do not gain from spending time with whites and Asians? How can universities, or their lawyers, with straight faces, claim that diversity helps all students if they are complicit in the self-segregation of college campuses? Said another way, where are the calls to desegregate African and Black Studies departments in the name of diversity?

Having made the case that affirmative action cannot be reasonably justified by diversity aims, I want to move on to the even more important criticism of affirmative action - its negative impacts on society.

It is important to remember that affirmative action does not imply that more blacks and other minorities of color attend college, but that they attend a more rigorous college or university than they would be admitted to absent racial preferences. In other words, affirmative action policies simply shift where students go, but these shifts are significant.

According to a 2018 article in the Harvard Crimson, using data from 2000-2017, Asian Americans admitted to Harvard had an average SAT score of 1533 while African Americans admitted had an average score of 1407. This 126 point difference may not sound like that big of a difference, but it is. If we look at recent average SAT scores for elite universities, we see that an SAT score of 1407 puts the average black student well below Harvard’s 25% percentile, which is 1450. Based on SAT scores, the average black student admitted to Harvard should really be at a school such as the University of Virginia (average SAT of 1415), Notre Dame (1405), UCLA (1400) or UC Berkeley (1410). These are all very good schools no doubt, but they are a tier or two below Harvard and other Ivys.

In a book published in 2012 entitled Mismatch, and in a summary article for The Atlantic, law professor Richard Sander and legal journalist Stuart Taylor describe how affirmative action harms the policy’s intended beneficiaries. That is, sorting black students above their abilities hurts them. Specifically, Sander and Taylor report that:

• Black college freshmen are more likely to aspire to science or engineering careers than are white freshmen, but mismatch causes blacks to abandon these fields at twice the rate of whites.

• Blacks who start college interested in pursuing a doctorate and an academic career are twice as likely to be derailed from this path if they attend a school where they are mismatched.

• About half of black college students rank in the bottom 20 percent of their classes (and the bottom 10 percent in law school).

• Black law-school graduates are four times as likely to fail bar exams as are whites; mismatch explains half of this gap.

• Interracial friendships are more likely to form among students with relatively similar levels of academic preparation; thus, blacks and Hispanics are more socially integrated on campuses where they are less academically mismatched.

The authors conclude:

“Because of mismatch, racial-preference policies often stigmatize minorities, reinforce pernicious stereotypes, and undermine the self-confidence of beneficiaries, rather than creating the diverse racial utopias so often advertised in college-campus brochures.”

As Sander and Taylor allude to, another negative conclusion of affirmative action is that it encourages all of us to be race conscious, and promotes individual racism, race stereotyping and racial bias. By having a lower academic standard for individuals that share something in common (i.e. their skin color), schools actively promote the belief that, on average, individuals who share that skin color are less skilled and less qualified.

Say, for instance, you are in a class of 100 students with two members of a minority group that are, on average, equally qualified as the other 98. While you may remark that there are fewer students of that minority group in class, you are more importantly likely to conclude, based on your experiences, that members of that minority group have relatively similar abilities and qualifications to everyone else.

On the other hand, let’s now suppose you are in a class of 100 students with 15 members of a minority group, of which two are as equally qualified as others, but 13 are clearly below average. You may still notice less representation from that group but now it is almost impossible not to conclude that, as a group, that minority is less qualified. This is a view that is easy to extrapolate beyond the classroom.

The second reason that affirmative action breeds racism is that by devaluing a credential, and by having separate sets of standards for different races, it forces a hiring manager to take an applicant’s race into account. If a Harvard degree was a sign of universal academic excellence and achievement, and if all students were held to the same standards, there would be no reason to consider race in a hiring decision. But given affirmative action, it is only rational that one assumes that students of certain minority groups have lower qualifications. Hence, an employer is essentially forced to consider the race of the applicant.

The mis-sorting of black and other minority students because of affirmative action is almost certainly one of the primary reasons for the lowering of educational standards in our country’s colleges and universities. Universities, and especially elite ones, would be seen as racist if black students significantly underperform or fail out at a much higher rate than whites or Asians. So, schools must do one or all of the following: 1) make grading easier, 2) lower the academic requirements for existing courses and majors, and 3) add new courses and majors that have less academic rigor.

With regards to grade inflation, famed Harvard political philosophy professor, Harvey Mansfield, described the relationship between affirmative action and grade inflation:

“Grade inflation got started … when professors raised the grades of students protesting the war in Vietnam … At that time, too, white professors, imbibing the spirit of the new policies of affirmative action, stopped giving low grades to black students, and to justify or conceal this, also stopped giving low grades to white students.”

As the Harvard Crimson showed, in 1966, at the beginnings of the affirmative action era, the average GPA at Harvard was a 2.6. It has steadily climbed and today the average Harvard GPA is 3.8. Similar grade inflation has happened everywhere. As Forbes reports, 15 percent of grades in the early 1960s were A’s. Today, an A is the most common grade given in college.

There are also countless examples that demonstrate how the goals of diversity have led universities to lower the standards of existing programs. In 2021, Princeton University’s Classics departments eliminated the requirement for classics majors to take Greek or Latin, and its Politics department added a track in race and identity. As Princeton’s alumni magazine reported, the goal of these changes was to address “systemic racism at Princeton” and “were given new urgency by…the events around race that occurred last summer [2020].” Princeton’s classics professor and director of undergraduate studies, was quoted saying,

“The changes ultimately give students more opportunities to major in classics…we think that having those students in the department will make it a more vibrant intellectual community.”

Translation: diversity trumps excellence.

Cornell’s English department was even more forthcoming than Princeton. In March 2019, Cornell’s faculty of English voted overwhelmingly to eliminate all Graduate Record Examination (GRE) requirements for application to its PhD program. Here’s the English department’s thoughts on the matter:

“GRE scores are not good predictors of success or failure in a PhD program in English, and the uncertain predictive value of the GRE exam is far outweighed by the toll it takes on student diversity … Requiring the exam narrows our applicant pool at precisely the moment we should be creating bigger pipelines into higher education. We need the strength of a diverse community in order to pursue the English Department’s larger mission: to direct the force of language toward large and small acts of learning, alliance, imagination, and justice.”

While grade inflation and the watering down of traditional academic programs have had a large and negative impact on our institutions of higher learning, it is the creation of new programs and the expansion of others where affirmative action has had its most pernicious effects. Needing less rigorous coursework to house academically weaker students, and more accessible scholarship to expand the numbers of minority faculty, universities have given rise to what are sometimes called the “grievance studies.”

Departments such as Black Studies, Latino Studies, Indigenous Studies, Women or Feminist Studies, Gender and Sexuality Studies, Queer Studies and others have proliferated in recent decades along with the expansion of the related fields of sociology and anthropology. It is these departments that birthed the woke takeover of our education system, and of our society.

Consumed with Marxist and anti-capitalist sentiments, professors in these dubious academic fields developed the anti-intellectual tenets of postmodernism, intersectionality, critical race theory, feminist theory, radical gender theory and queer theory. They then inculcated these ideas into legions of underqualified students shepherded into these classes because they were far easier than traditional courses.

For a long while, it was naively thought by many that the vacuity and absurdity of these ideas would never escape the ivory tower and that students with such degrees would remain unemployable. Unfortunately, that hasn’t been the case. Legitimized with degrees from, say, Harvard, a vast army of mostly female ideologues, trained in the grievance studies have found healthy and lucrative employment as DEI trainers and HR managers, infiltrating our nation’s corporations, healthcare and legal systems, and government with their radicalism.

The final point I wish to make about the ruinous impact of affirmative action, is its never-ending nature. In her majority opinion in Grutter v. Bollinger, Justice Sandra Day O'Connor wrote that "race-conscious admissions policies must be limited in time." She further added, that “we expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.”

An understanding of the incentives of affirmative action demonstrates this impossibility. As stated above, more underqualified students and professors leads to the expansion of the grievance studies, to the continued cries of victimhood on campus and to the bullying demands for more underqualified students and professors and more of the university’s resources. Correspondingly, ever more of these non-skilled graduates require more non-skilled jobs, putting continuous pressure to expand affirmative action outside of the education system. Lastly, affirmative action results in obvious implicit bias and implicit bias is one of the core justifications of the use of more racial preferences and more antiracism trainings.

Left to its own devices, affirmative action, like the broader DEI and racial justice movement is a perpetual motion machine. And make no mistake, this is a deliberate feature, not a bug.

As I stated at the outset of this piece, it is almost certain that the Supreme Court will rule against affirmative action. Yes, this is an important step in ending the abhorrent discrimination against Asian Americans. However, if history is any guide, universities will find workarounds to keep racial preferences as a factor in their admissions. Many schools have already set the stage for this world by eliminating standardized test requirements which makes it easier to obfuscate their continuing use of race as an important factor in admissions.

Those of us that recognize the importance of proper education, merit and academic excellence to our country’s future need to be realistic. We cannot leave saving the world up to the Supreme Court. To borrow a favorite term from the woke, we’re going to have to “do the work.” We must fight, and fight hard, to reclaim our educational institutions from the clutches of the identity Marxists and from the forces of mediocrity, and we must be fervent advocates for our universities to return to their original missions of perpetuating the knowledge of great civilizations and of searching for truth.

Most importantly, we have to muster our courage and speak out against our country’s obsession with race. Racism is nowhere near the top of the list of problems facing our nation, nor is it a significant reason why some groups of Americans underperform others. Let’s stop apologizing for slavery, something none of us alive perpetuated or condoned. Let’s stop treating blacks as helpless victims, and whites as shameless victimizers. Let’s stop being bullied into going along with the narrative of systemic racism, and stop pretending that diversity matters when it doesn’t. Finally, let’s stop letting our children and grandchildren be brainwashed by a hateful and divisive ideology and start teaching them that talent and hard work are what should differentiate us, not race.

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As always, I want to share with you the latest episodes of the podcast I co-host with Beth Feeley, Take Back Our Schools, available on all major podcast outlets, including Apple, Google, Spotify and Stitcher. 

A Reinvention of Catholic Schools

On this episode of Take Back Our Schools, Beth and I speak with education innovator Stephanie Saroki de García about her formative experiences as a Teach for America member and teaching in one of the most dangerous schools in Oakland, CA. She discusses the network of Catholic charter schools she helped found that combines optional faith-based education along with an academically rigorous curriculum. Stephanie also discusses the challenges today of hiring teachers that are not social justice activists and the difficulties of starting charter schools, especially in blue states. Stephanie also passionately shares her views on the benefits of faith as a component of a child’s education.

Work, Study, Success – The Cristo Rey Model

On this episode of Take Back Our Schools, we speak with educator Tony Ortiz about his school, Cristo Rey Jesuit High School, which has an innovative work study program which allows low income students in Chicago to get a high quality college preparatory education by working one day per week. Tony discusses the origins of the program, how it has developed and changed over the years and how it inspired a national network of work study schools. Tony talks about the impressive graduation rates of Cristo Rey and the benefits to both students and employers of the work study model.

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I hope you enjoy these episodes of Take Back Our Schools. As always, please share any ideas or suggestions, including for podcast guests. You can contact me through the website: speakupforeducation.org or email me at andrew@speakupforeducation.org. I am also on Twitter @AndrewGutmann.