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The Case for Optimism on Affirmative Action

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The Case for Optimism on Affirmative Action

With the Supreme Court seemingly poised to strike down the policy, why are some on the right skeptical about what comes next? November 4, 2022
The Social Order
Politics and law

The marathon oral arguments in Students for Fair Admissions v. Harvard presage, by all accounts, a victory for the conservative legal movement. The expected ruling, which would strike down decades of nonsensical jurisprudence preserving a system of explicit racial discrimination, has been a goal second only to the overturning of Roe v. Wade in importance to the Right.

So why do some conservatives seem pessimistic about what comes next? Writing here at City Journal, my Manhattan Institute colleague Robert VerBruggen foresees a host of workarounds, and predicts that “many schools will lower and eliminate objective standards as much as they need to in order to maintain their desired demographic numbers.” Over at the American Conservative, Helen Andrews expects that Harvard and other schools will do much the same to avoid legal scrutiny of their discriminatory regimes. And in the days leading up to and after oral arguments, I heard many conservatives claim that universities will continue racial preferences, because they are ideologically committed to “equity” above all else.

Such pessimism is characteristically conservative, but let me make the case that it is unwarranted. Students for Fair Admissions v. Harvard is likely to be an unvarnished victory for conservatives, one that significantly reduces the use of racial discrimination in higher education, and the Right should cheer it as such, for four reasons.

The first: prohibiting affirmative action represents a legal sea change. If the Court finds affirmative action a violation of either the Constitution or civil rights law, then universities that keep practicing it will be breaking the law. Illegality is typically a major reason for institutions not to do certain things.

Of course, that doesn’t mean that they won’t look for workarounds. VerBruggen notes that large portions of the oral arguments were dedicated to discussing facially race-neutral alternatives that could produce similar racial compositions in student bodies. Some, like top-10-percent plans, would probably survive scrutiny, but they would also likely not lead to the same brazen disparities. And any plan that too closely proxied race would get challenged in court again. A ruling against affirmative action in Harvard would open the door to subsequent litigation—a powerful disincentive for universities contemplating race-conscious admissions policies.

This first reason relates to the second reason for optimism—namely, that a legal infrastructure already exists dedicated to punishing institutions that break discrimination law. That bureaucracy has sometimes been abused to stymy conservative agendas, but there is no reason it cannot also be used to stop affirmative discrimination. Indeed, such an approach was more or less the strategy the Trump administration used in opening civil rights investigations into Yale and Princeton.

Further, nothing stops elected conservative lawmakers from taking other steps to constrain racial preferences. Writing at the New Criterion, civil rights law expert Gail Heriot encouraged Congress to stop subsidizing “minority serving institutions” and “eliminate accreditation standards that essentially force colleges and universities to adopt race-preferential admissions policies.” A Republican-controlled Congress could also attach relevant strings to federal funding. For example, it could mandate that funding recipients not solicit information about an applicant’s race or ethnicity. They would probably have electoral support in doing so: the American public really dislikes affirmative action.

The third reason is that banning racial discrimination seems to make it harder to discriminate on the basis of race. This, at least, is what officials of the University of California have claimed repeatedly since 1996, when Proposition 209 banned affirmative action in public institutions statewide. In their amicus brief on behalf of Harvard, the system’s president and chancellors wrote that “for nearly a quarter century, UC has made persistent, intensive efforts to improve the diversity of its student body through race-neutral programs, yet full realization of the educational benefits of diversity remains elusive.” The UC system both implements race-neutral alternatives and pours millions every year into outreach, yet “at many of UC’s campuses, especially the flagship campuses, there remain stark differences between the demographics of UC’s enrolled student population and the demographics of . . . California public high school graduates.”

Of course, they could be lying, but evidence suggests that it really is harder to discriminate by race in California. For example, an EdSource analysis finds that Asians are dramatically overrepresented relative to their share of California high schoolers who completed UC-required courses, while blacks and Hispanics are dramatically underrepresented. If UC were able to rig the numbers in the way it appears to want to, one would expect results more like those seen in selective schools across the country.

True, this is not definitive proof that California schools can’t practice affirmative action. For that, we would need to know more about students’ measured ability. But it suggests that the UC chancellors are not lying when they say that, despite their best efforts, they have not been able to discriminate in the same way as they could before Prop. 209.

The fourth reason is that law shapes ideology. Harvard, in Andrews’s and others’ telling, is so ideologically committed to racial equity that it will refuse to follow the law. But Harvard’s ideological position is, at least in part, a byproduct of the law. Richard Hanania articulated this insight in a short piece titled “Woke Institutions Is Just Civil Rights Law.” The whole theoretical justification for contemporary affirmative-action practices, the never-well-defined benefits of “diversity” on campus, is largely an artifact of the Court’s 1978 Bakke ruling, which permitted the consideration of race in admissions on that basis alone. Knocking down Bakke should undermine the moral status of this fuzzy concept of diversity, in turn loosening the grip of the progressivism that depends on it. The law, if it does not determine ideology, at the very least informs it. The Harvard case will instruct institutions at least as well as did Bakke.

Even if you don’t buy this last point, however, you should concede at least one or more of the other three points—particularly if you’re a skeptic of affirmative action as currently constituted. Resist, then, the conservative urge to believe doom is on the horizon. Sometimes, a win is a win.

Photo: Joel Carillet/iStock

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