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Race to the Flop—The Problem with Affirmative Action

THE ISSUE OF affirmative action in higher education—which is headed back to the U.S. Supreme Court today—presents a conundrum for the justices who, like most Americans, want racial diversity in colleges yet are uneasy with racial preferences.

For decades, the Supreme Court has struggled with various compromises, most recently settling on an arrangement that allows for the consideration of race as part of a candidate’s “holistic review.” But, as UCLA law professor Richard Sander and journalist Stuart Taylor, Jr. note in their perceptive new book, this accommodation has not limited racial preferences in practice.

To Sander and Taylor, the real problem is not just for those who are passed over when large racial preferences come into play, but for the beneficiaries themselves. In many cases, they say, minority students would perform better at less elite schools than in institutions where their incoming academic credentials put them at the bottom of their class. This is the “mismatch” that the book identifies: students provided sizeable admissions preferences struggle academically.

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Despite a somewhat melodramatic subtitle—“how affirmative action hurts students it’s intended to help”—the book presents a nuanced treatment of the issue. The authors do not claim, and the evidence does not support, the idea that all beneficiaries of affirmative action are worse off at selective schools. Indeed, there is a wide body of evidence that suggests that students attending more selective colleges have greater resources showered on them, are more likely (controlling for incoming academic records) to graduate, more likely to have higher earnings, and are more likely to join America’s leadership class.

One widely cited study authored by Stacy Dale and Alan Krueger, and referenced in Mismatch, illustrates the benefits that some minority and disadvantaged students receive from elite colleges. The study’s authors questioned the worth of attending a selective college; studies show that students admitted to colleges with high average SAT scores but who instead attended schools with lower average scores earned just as much as students who attended high SAT schools. But for black and Hispanic students and those with parents with less than 16 years of education, the pattern breaks down; these students do receive a wage premium if they attend selective schools, perhaps because “highly selective colleges provide access to networks for minority students and for students from disadvantaged family backgrounds that are otherwise not available to them.”

But Sander and Taylor’s main argument is that there may be subsets of students who are hurt. In particular, they cite evidence that students who receive large admissions preferences at elite colleges are more likely to shift away from science and engineering than those who have not received preferential treatment. Likewise, law school graduates appear more likely to fail the bar if they are at the bottom of the class in a highly selective school than if they are in the middle of the pack at a less selective school. 

These “mismatch” studies are highly contested, but Sander and Taylor cannot be written off as right wing ideologues. Sander, like our current president, began his career as a community organizer on the South Side of Chicago before pursuing a law degree. Upon becoming a law professor, he cut his teeth on racial housing segregation issues and then helped UCLA Law develop a class-based affirmative action program after California voters banned the use of race. (Full disclosure: I have known Sander since I wrote an article about UCLA’s program in 1998.) Taylor is a former New York Times Supreme Court reporter, National Journal columnist, and is now a nonresident senior fellow at the Brookings Institution. They are intelligent critics who support the modest use of race in admissions but think very large preferences have harmful effects.

In the preface, Taylor says he has always been drawn to investigating “influential people and institutions” who “dodge the truth” and, in the case of affirmative action, universities give him plenty of fodder. Indeed, this book is at its best when it skewers college and university officials—who feel morally superior for defending affirmative action—for in fact pursuing what Yale Law professor Stephen Carter has called “racial justice on the cheap.”

For one thing, colleges admit underrepresented minority students through large preferences but then provide little in the way of remedial help. One lawyer who has taught at an elite law school told the authors that faculty members “talk a diversity game, they’ll admit black and Hispanic students with low entering credentials,” but then “don’t take the time to help them master the skills necessary to pass the bar … It’s immoral.”

To make matters worse, officials try to hide the problem of low performance and deny access to data. Recently, The Los Angeles Times, The New York Times, The Washington Post, and other news organizations have joined in support of a lawsuit brought by Sander to compel the State Bar of California to release data to assess the mismatch theory.

Moreover, Sander and Taylor ask, why are universities so little concerned about a less visible form of diversity—by socioeconomic status? Century Foundation research has found that rich kids outnumbered poor kids on selective campuses by twenty-five to one. And Sander’s research finds that at top ten law schools, 82 percent of students came from the richest socioeconomic quarter of the population, just 5 percent from the bottom half and a mere 1 percent from the bottom quarter. At the top twenty law schools, Sander finds, 89 percent of black students came from the top half of the socioeconomic distribution, and 66 percent from the top quarter. Diversity for these institutions means having relatively wealthy kids of all colors.

Moreover, where the use of race has been banned, the indication is that universities can, in fact, achieve considerable racial and ethnic diversity through other means: by giving a preference to economically disadvantaged students of all races, by admitting hard-working students who are in the top of their high school classes irrespective of SAT scores, by beefing up financial aid programs, and by ending legacy preference programs for the children of alumni. In fact, while the University of Texas was temporarily banned from using race by a lower court, it achieved greater black and Latino representation with race-neutral alternatives than it had in the past with race-conscious admissions.

Universities tend to dislike this set of alternatives. If one’s sole goal is racial diversity, it is less efficient to pursue economic diversity—bringing in a fair number of low-income and working-class whites, Asians, blacks and Hispanics—than it is to admit the most economically advantaged and high-scoring African American and Latino students. But if one’s goal is a truly meritocratic system, recent research suggests that socioeconomic obstacles to doing well on the SAT are about seven times as large as racial obstacles. As a measure of adverse circumstances, socioeconomic obstacles are, the studies suggest, far greater than race.

More to the point of the Fisher v. University Texas litigation, which will appear today before the Supreme Court, the courts have long suggested that universities may classify students by race only if it is “necessary” for achieving the educational benefits of racial diversity. Justice Anthony Kennedy, the swing vote on the Court, has said race should only be used as a “last resort,” when other efforts fail. Accordingly, the Supreme Court could very well impose a rule which requires universities to vigorously pursue race-neutral alternatives before permitting racial preferences.

Indeed, the future of affirmative action may well be the type of class-based program that Sander created at UCLA Law School. As Sander and Taylor explain, that program looks not only at family income, but also at factors that tend to impact low-income African Americans and Latinos even more than low-income whites: disadvantages associated with living in concentrated poverty and having very low wealth. In 2011, African Americans and Latinos constituted 56 percent of those admitted through UCLA Law’s socioeconomic program compared with 6 percent of those admitted through other programs.

Will such a socioeconomic affirmative action program itself create the educational problem of “mismatch” that Sander and Taylor identified with respect to racial preferences? They argue it should not. For one thing, there are many highly qualified low-income students who could be recruited to apply and would not require a substantial preference. Sander and Taylor find that only 4 percent of high-scoring economically disadvantaged African American students apply to top colleges, compared with 48 percent of economically advantaged black students. Georgetown University researchers Anthony Carnevale and Stephen Rose have estimated that at the most selective 146 colleges and universities, the proportion of students coming from the bottom half of the socioeconomic distribution could increase under a merit and class-based affirmative action program from 10 percent to 38 percent and graduation rates would remain the same as under the current system.

Fisher v. University of Texas, Sander and Taylor write, “might become the biggest case ever on racial preferences in university admissions.” It has the chance of moving beyond the earlier unproductive compromises on racial preferences to usher in a new form of affirmative action that addresses America’s biggest source of inequality: those rooted in class.

Richard D. Kahlenberg, a senior fellow at The Century Foundation, is author of The Remedy: Class, Race, and Affirmative Action (1996), and the editor of Rewarding Strivers: Helping Low-Income Students Succeed in College (2010). Follow: @RickKahlenberg