The New York Times broke the news Wednesday that the Justice Department is recruiting lawyers to work on a new project focused on “investigations and possible litigation related to intentional race-based discrimination in college and university admissions.” The move generated predictable outrage from academic and liberal interest groups, who interpreted it as a reversal of federal support for affirmative action.

For 40 years, conservative and libertarian legal groups have questioned the wisdom and legality of racial preferences in higher education. And though the Supreme Court thrice has upheld the practice—in its Bakke, Grutter, and Fisher rulings—the one-vote margin in each of these decisions, and their confirmation that, even in higher education, limits exist regarding positive discrimination on the basis of race, leave this area of law somewhat unsettled. The use of racial preferences in college and university admissions also remains deeply unpopular in public opinion polling.

The judicial legacy has placed colleges in a difficult position. Bakke precluded the most principled justification for affirmative action—compensatory justice, to rectify the effects of past severe discrimination—leaving instead the ill-defined benefits of “diversity.” Higher education institutions embraced the rationale, even as they grew ever more allergic to other types of diversity, whether pedagogical or intellectual. And despite “holistic” evaluation procedures, leading schools nonetheless produce near-identical percentages of ethnic and racial enrollments year after year.

These figures are a reminder of what is—and is not—at stake in the affirmative-action debate. Most non-elite schools can attract a class of sufficient racial or ethnic diversity without using preferences; schools located in some rural areas may struggle to attract minority applicants altogether. But at elite institutions, racial preferences—or, depending on state law, such as California’s Proposition 209, their prohibition at public universities—will decide the outcome of a percentage of cases at the bottom of the admitted pool.

The mismatch theory, popularized by UCLA law professor Richard Sander and former Brookings fellow Stuart Taylor, Jr. (with whom I’ve co-authored two books), contends that racial preferences force students into academic environments for which they’re unprepared. Research from Duke’s Peter Arcidiacono, for instance, documented how African-American students who entered elite institutions intending to major in STEM fields initially struggled before moving toward humanities majors. (In an extraordinary affront to academic freedom, former Duke president Richard Brodhead publicly rebuked Arcidiacono’s research, without in challenging any of its conclusions.) Recent campus protests at Amherst, Yale, Evergreen State, and other colleges also showed the effects of mismatch. One of the Amherst protesters said in 2015 that “she had felt unprepared academically and socially for Amherst . . . ‘I feel like an impostor . . . I always feel like I need to prove to other people that I do belong here.’” Would she have harbored such feelings—and blamed them on her college—if she had attended a school for which she was academically prepared?

For much of the affirmative-action era, racial preferences could be seen as a zero-sum contest between white and black applicants for the final slots at elite institutions. But that is no longer the case in our increasingly pluralistic society. The average SAT scores of Asian-Americans, the fastest-growing ethnic group in the United States, easily exceed those of whites, who in turn have higher average scores than Hispanics or African-Americans.

Framing the Trump administration as doing the bidding of whites at the expense of minorities doubtless fits the worldview of most New York Times editors, reporters, and readers. But as California Democrats learned, ignoring the grassroots concerns of Asian-Americans on this issue can be politically problematic. In 2014, Democrats in the California State Senate voted to put on the ballot a repeal of Proposition 209. The vote came despite California’s status as a state where (in 2012) 14 percent of high school graduates, but 49 percent of first-year students at Cal-Berkley, were Asian-Americans and Pacific Islanders. Asian-Americans saw the move as threatening the educational future of their children, and a grassroots campaign from this overwhelmingly Democratic constituency helped kill the repeal effort.  

In this respect, perhaps the most significant short-term effect of any shift in Justice Department policy will pertain to lawsuits already filed, alleging that racial preferences discriminate against Asian-American applicants: the Justice Department confirmed Wednesday that its new hires would in particular work on a complaint to the Education and Justice Departments. That 46-page complaint, which the Obama administration declined to investigate, claimed that “Harvard and other Ivy League Colleges have discriminated against Asian-Americans in their college admission processes, in the form of fixed enrollment numbers, and under the influence of racial stereotypes and prejudices.”

In the 2016 election, Trump lost the Asian-American vote by almost 40 points; it’s unlikely his standing with the constituency is much stronger now. However, using the power of the Justice Department to demand greater transparency in the admissions process could, in addition to promoting ideals of racial equality and merit, generate significant shifts in the electoral realignment that is already taking place.

Photo by Justin Sullivan/Getty Images


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